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320 GST LAW TIMES [ Vol. 36
act as prohibitions or limitations on the constitutional powers under
Article 142. Such prohibitions or limitations in the statutes might em-
body and reflect the scheme of a particular law, taking into account
the nature and status of the authority or the court on which confer-
ment of powers - limited in some appropriate way - is contemplated.
The limitations may not necessarily reflect or be based on any fun-
damental considerations of public policy. Shri Sorabjee, Learned At-
torney General, referring to Garg case [Prem Chand Garg v. Excise
Commr., AIR 1963 SC 996], said that limitation on the powers under
Article 142 arising from “inconsistency with express statutory provi-
sions of substantive law” must really mean and be understood as
some express prohibition contained in any substantive statutory law.
He suggested that if the expression “prohibition” is read in place of
“provision” that would perhaps convey the appropriate idea. But we
think that such prohibition should also be shown to be based on some under-
lying fundamental and general issues of public policy and not merely inci-
dental to a particular statutory scheme or pattern. It will again be wholly in-
correct to say that powers under Article 142 are subject to such express stat-
utory prohibitions. That would convey the idea that statutory provisions
override a constitutional provision. Perhaps, the proper way of expressing
the idea is that in exercising powers under Article 142 and in assessing the
needs of “complete justice” of a cause or matter, the Apex Court will take
note of the express prohibitions in any substantive statutory provision based
on some fundamental principles of public policy and regulate the exercise of
its power and discretion accordingly. The proposition does not relate to
the powers of the Court under Article 142, but only to what is or is
not “complete justice” of a cause or matter and in the ultimate analy-
sis of the propriety of the exercise of the power. No question of lack
of jurisdiction or of nullity can arise.”
(emphasis in original)
14. In this regard, another Constitution Bench in Supreme Court Bar Assn.
v. Union of India, (1998) 4 SCC 409] opined : (SCC pp. 437-38, para 56)
“56. As a matter of fact, the observations on which emphasis has
been placed by us from the Union Carbide case [Union Carbide Corpn.
v. Union of India, (1991) 4 SCC 584], A.R. Antulay case [A.R. Antulay v.
R.S. Nayak, (1988) 2 SCC 602] and Delhi Judicial Service Assn. v. State of
Gujarat, (1991) 4 SCC 406, go to show that they do not strictly speaking
come into any conflict with the observations of the majority made in Prem
Chand Garg case [Prem Chand Garg v. Excise Commr., AIR 1963 SC 996].
It is one thing to say that “prohibitions or limitations in a statute”
cannot come in the way of exercise of jurisdiction under Article 142 to
do complete justice between the parties in the pending “cause or mat-
ter” arising out of that statute, but quite a different thing to say that
while exercising jurisdiction under Article 142, this Court can alto-
gether ignore the substantive provisions of a statute, dealing with the
subject and pass orders concerning an issue which can be settled only
through a mechanism prescribed in another statute. This Court did
not say so in Union Carbide case [Union Carbide Corpn. v. Union of In-
dia, (1991) 4 SCC 584] either expressly or by implication and on the
contrary it has been held that the Apex Court will take note of the ex-
press provisions of any substantive statutory law and regulate the exer-
cise of its power and discretion accordingly.
(emphasis in original)
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