Nidhi Kaim and another Vs. State of Madhya Pradesh and others
[Civil Appeal No. 1727 of 2016]
[Civil Appeal Nos. 1720-1724 of 2016]
[Civil Appeal No. 1726 of 2016]
[Civil Appeal No. 1728 of 2016]
[Civil Appeal No. 1729 of 2016]
[Civil Appeal No. 1733 of 2016]
[Civil Appeal Nos. 1734-1741 of 2016]
[Civil Appeal Nos. 1742-1749 of 2016]
[Civil Appeal Nos. 1750-1751 of 2016]
[Civil Appeal No. 1752 of 2016]
[Civil Appeal Nos. 1753-1758 of 2016]
[Civil Appeal Nos. 1759-1764 of 2016]
[Civil Appeal No. 1765 of 2016]
[Civil Appeal No. 1766 of 2016]
[Civil Appeal Nos. 1767-1768 of 2016]
[Civil Appeal Nos. 1769-1774 of 2016]
[Civil Appeal Nos. 1776-1787 of 2016]
[Civil Appeal No. 1788 of 2016]
[Civil Appeal Nos. 1789-1791 of 2016]
[Civil Appeal Nos. 1792-1794 of 2016]
[Civil Appeal Nos. 1795-1798 of 2016]
[Civil Appeal Nos. 1799-1805 of 2016]
[Civil Appeal Nos. 1806-1808 of 2016]
[Civil Appeal No. 1809 of 2016]
[Civil Appeal Nos. 1810-1811 of 2016]
[Civil Appeal No. 1812 of 2016]
[Civil Appeal Nos. 1813-1814 of 2016]
[Civil Appeal No. 1815 of 2016]
[Civil Appeal Nos. 1816-1817 of 2016]
[Civil Appeal Nos. 1818-1819 of 2016]
[Civil Appeal No. 1820 of 2016]
[Civil Appeal Nos. 1822-1824 of 2016]
[Civil Appeal No. 1825 of 2016]
[Civil Appeal No. 1826 of 2016]
[Civil Appeal No. 1827 of 2016]
[Civil Appeal No. 1828 of 2016]
[Civil Appeal No. 1830 of 2016]
[Civil Appeal Nos. 1831-1832 of 2016]
[Civil Appeal No. 1833 of 2016]
[Civil Appeal No. 1834 of 2016]
[Civil Appeal No. 1835 of 2016]
[Civil Appeal Nos. 1836-1837 of 2016]
[Civil Appeal No. 1838 of 2016]
[Civil Appeal No. 1839 of 2016]
[Civil Appeal No. 1840 of 2016]
[Civil Appeal No. 1841 of 2016]
[Civil Appeal No. 1842 of 2016]
[Civil Appeal No. 1843 of 2016]
[Civil Appeal No. 1844 of 2016]
[Civil Appeal No. 1845 of 2016]
[Civil Appeal No. 1846 of 2016]
[Civil Appeal Nos. 1847-1852 of 2016]
[Civil Appeal Nos.2503-2504 of 2017 arising out of SLP(C) Nos.101-102 of 2015]
Civil Appeal No. 2505 of 2017 arising out of SLP(C) No.182 of 2015]
Jagdish Singh Khehar, CJI.
1. Leave granted in the special leave petitions.
2. Orders were passed by the Madhya Pradesh Professional Examination Board (hereinafter referred to as, 'Vyapam'), cancelling the results of the appellants, of their professional MBBS course, on the ground that the appellants had gained admission to the course, by resorting to unfair means, during the Pre-Medical Test. These orders were passed, with reference to candidates, who had been admitted to the above course, during the years 2008 to 2012. A challenge to the orders of cancellation, was raised by the appellants, by invoking the jurisdiction of the High Court of Madhya Pradesh (hereinafter referred to as, 'the High Court') under Article 226 of the Constitution.
All writ petitions raising the above challenge were dismissed. Resultantly, the appellants approached this Court. The orders of the High Court were affirmed by a Division Bench (hereinafter referred to as, the 'former Division Bench'), on 12.05.2016. However, in exercise of jurisdiction vested in this Court, under Article 142 of the Constitution, J. Chelameswar, J. (the Hon'ble Presiding Judge, of the 'former Division Bench') expressed the view, that complete justice in the matter would be rendered, if the qualifications successfully acquired by the appellants were not annulled, and the knowledge gained by them, was not wasted.
This, for the simple reason, that knowledge could not be transferred to those, who had been wrongfully deprived of admission, and cancellation of the results of the appellants, would not serve any purpose. Abhay Manohar Sapre, J. (the Hon'ble Companion Judge - in the 'former Division Bench') expressed his disinclination for invoking jurisdiction under Article 142, to sustain the benefit of education acquired by the appellants, through a separate order of the same date - 12.5.2016. This, for the simple reason, that those who had adopted unfair means, could not be extended any indulgence.
3. On account of the divergence of opinion expressed by the 'former Division Bench', through their separate orders (dated 12.5.2016) referred to above, Hon'ble the Chief Justice of India, constituted this larger Division Bench, to deal with the matter. During the course of hearing, Mr. Shyam Divan, learned senior counsel submitted, that this Court had granted leave, in the petition filed by his client (and many others, similarly situated) on 24.2.2016. It was pointed out, that all these appeals had remained pending before this Court, wherein the correctness of the impugned judgment(s) rendered by the High Court, was under consideration.
It was submitted, that leave having been granted, the principle underlying the doctrine of merger would entail, that the judgments rendered by the High Court would eventually merge in the final or operative determination of this Court. It was also pointed out, that in terms of Article 145(5) of the Constitution, no judgment could be delivered by this Court, save with the concurrence of majority of Judges, present and hearing the case. It was submitted, that there was no majority judgment on 12.5.2016, when the two Hon'ble Judges constituting the 'former Division Bench', passed separate orders. According to learned counsel, in the absence of merger, all theCivil Appeals in hand, must be deemed to have remained on the docket of this Court, awaiting decision by an appropriate bench.
It was contended, that the correct course to be followed, where there is a divergence of opinion between the two Hon'ble Judges was, a rehearing of the entire matter by a larger Bench. The above determination, according to learned counsel, emerges from the legal position expressed by this Court in Gaurav Jain v. Union of India, (1998) 4 SCC 270. It was submitted, that in the absence of a majority judgment, in terms of Article 145(5), and consequently in the absence of an effective judgment of this Court (despite the two separate orders passed by the 'former Division Bench' on 12.05.2016), there existed no judgment in the eyes of law.
It was accordingly submitted, that the present Division Bench (of three-Judges) by a mandate of law, was required to adjudicate upon theCivil Appeals fully, on all issues. It is therefore, that this Bench passed the following order on 28.7.2016: "After hearing had gone on for sometime, wherein the limited issue canvassed was, whether this Court was justified in exercising jurisdiction under Article 142 of the Constitution of India, our attention was invited to the mandate contained in Article 145(5) of the Constitution, so as to suggest, that the entire controversy needed to be heard afresh, in view of the following order passed by the Bench on 12th May, 2016:
"In view of the divergence of opinion in terms of separate judgments pronounced by us in these appeals today, the Registry is directed to place the papers before Hon'ble the Chief Justice of India for appropriate further orders." We are of the view that the instant issue can be resolved by referring the matter back to the Bench, for a clarification, of the order dated 12th May, 2016, whether the reference required re-hearing of the entire matter, and if not, the limited issue referred for consideration. We have chosen to adopt the above course, so as to save precious time of the Court. In the above view of the matter, the Registry is directed to place the files of this case, before Hon'ble the Chief Justice of India, for seeking clarification of the Division Bench which passed the order dated 12th May, 2016. Post the matters for hearing, after clarification."
4. On 30.8.2016, the 'former Division Bench' passed another order, in furtherance of the order extracted above. Relevant extract of the same is reproduced below: "Pursuant to the Order dated 28th July, 2016 of the larger Bench, the matter was placed before this Bench. Heard the learned counsel. It appears from the above-mentioned order that, it was argued before the larger Bench that by the Order of this Bench dated 12th May, 2016, a Reference was made to a larger Bench. The submission is factually incorrect. It is clear from the Order dated 12th May, 2016 that there was a disagreement between both of us regarding the final order to be passed in the appeals before us. Both of us recorded a concurrent opinion that the examination process in issue in these appeals, conducted by Vyapam for the years 2008 to 2012 was vitiated with reference to the appellants before this Court and few others.
We also agreed upon the conclusion that the appellants herein are the beneficiaries of such vitiated process. The only point of divergence between both of us is that whether the appellants should be disentitled to retain the benefits of the training in medical course which they secured by virtue of their being beneficiaries of a tainted examination process conducted for the purpose of admitting them for training in medical colleges.
While one of us (Justice Abhay Manohar Sapre) is clearly of the opinion that the case of the appellants deserves no further consideration, the moment we concluded that they are the beneficiaries of such tainted examination process, the other (Justice J. Chelameswar) opined for the reasons recorded that their cases deserve some consideration and also opined that the appellants should be permitted to pursue their medical course and complete the same subject to certain conditions indicated in the order. We completely fail to understand the reference made to Article 145(5) of the Constitution in the Order dated 28th July, 2016. We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned.
A re-hearing of the entire matter as apparently suggested to the larger Bench, in our opinion, would amount to an intra-court appeal. If the larger Bench of this Court wishes to create such an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above. Ordered accordingly." In view of the order extracted above, it is apparent that, we are only dealing with the issue, whether the jurisdiction vested in this Court under Article 142 of the Constitution, should be invoked in favour of the appellants, in order to render complete justice in the matter.
5. According to Mr. R. Venkataramani, learned senior counsel appearing for the appellants inCivil Appeal Nos. 1727, 1720-1724, 1726, 1728, 1776- 1787 and 1846 of 2016, the invocation of Article 142 in favour of the appellants was a just and rightful determination, inasmuch as, complete justice was sought to be rendered without adversely affecting or impinging upon the rights of any other party. It was submitted, that there is a distinction between "inherent jurisdiction" and "inherent power". Likewise, there is a distinction between ensuring, that the ends of justice are met - as against, rendering of complete justice.
It was pointed out, that Section 151 of the Code of Civil Procedure , 1908 (hereinafter referred to as, 'the CPC') and Section 482 of the Code of Criminal Procedure , 1973 (hereinafter referred to as, 'the CrPC') provide for situations, wherein a Court can exercise inherent powers. It was submitted, that inherent powers as contemplated under Section 151 of the CPC, and Section 482 of the CrPC , are controlled, and had limitations. It was asserted, that the power conferred on the Supreme Court under Article 142 of the Constitution, was aimed at allowing this Court to do complete justice, in any cause or matter.
The instant power vested in this Court, it was submitted, is unlimited. It was pointed out, that the expanse of Article 142, was clearly distinct from the inherent power contemplated under the two procedural enactments, referred to above. In order to substantiate his contention, learned counsel placed reliance on a treatise by Roscoe Pound - An Introduction to the Philosophy of Law, (Sixth Indian Reprint - 2012, published by the Universal Law Publishing Co. Pvt. Ltd.). Learned counsel invited the Court's attention to the following opinion expressed by the author:
"If we look back at the means of individualizing the application of law which have developed in our legal system, it will be seen that almost without exception they have to do with cases involving the moral quality of individual conduct or of the conduct of enterprises, as distinguished from matters of property and of commercial law. Equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence has been reposed. Jury lawlessness is an agency of justice chiefly in connection with the moral quality of conduct where the special circumstances exclude that "intelligence without passion" which, according to Aristotle, characterizes the law.
It is significant that in England today the civil jury is substantially confined to cases of fraud, defamation, malicious prosecution, assault and battery, and breach of promise of marriage. Judicial individualization through choice of a rule is most noticeable in the law of torts, in the law of domestic relations, and in passing upon the conduct of enterprises. The Application of Law The elaborate system of individualization in criminal procedure has to do wholly with individual human conduct. The informal methods of petty courts are meant for tribunals which pass upon conduct in the crowd and hurry of our large cities. The administrative tribunals, which are setting up on every hand, are most called for and prove most effective as means of regulating the conduct of enterprises.
A like conclusion is suggested when we look into the related controversy as to the respective provinces of common law and of legislation. Inheritance and succession, definition of interests in property and the conveyance thereof, matters of commercial law and the creation, incidents, and transfer of obligations have proved a fruitful field for legislation. In these cases the social interest in the general security is the controlling element.
But where the questions are not of interests of substance but of the weighing of human conduct and passing upon its moral aspects, legislation has accomplished little. No codification of the law of torts has done more than provide a few significantly broad generalizations. On the other hand, succession to property is everywhere a matter of stature law, and commercial law is codified or codifying throughout the world. Moreover the common law insists upon its doctrine of stare decisis chiefly in the two cases of property and commercial law. Where legislation is effective, there also mechanical application is effective and desirable.
Where legislation is ineffective, the same difficulties that prevent its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the Roman law, and especially by the modern Roman law, to so many questions of fault, where the question is really one of good faith. All attempts to cut down this margin have proved futile. May we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules?
Is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our assurance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life?"
Based on the aforesaid, it was submitted, that matters involving individual conduct, or conduct of enterprises, need to be distinguished from matters of property and commercial law. It was pointed out, that the rule of equity, in dealing with individual conduct or conduct of enterprises, was a tool adopted to the best advantage of the parties concerned, especially when, the controversy did not relate to property matters or commercial law. Referring to the law of inheritance and succession, which had a direct nexus to interest in property (and conveyance), it was submitted, that there was a feeling, that social interest was generally the controlling element, in such matters. However, where the question was not of substance, but of human conduct (or the moral aspect thereof), legislation could not be depended upon, to furnish any answer.
According to learned counsel, on the subject being dealt with, there is no express legislation. Therefore, it is necessary to keep in mind, that the controversy in hand, is not one which would return a finding of breach of any existing legislative enactment. It was submitted, that if there had been any such legislation, on the issue being dealt with, the matter would have to be examined differently. However, in the absence of legislation, or in situations where legislation is ill-effective, Courts had a wide margin of discretion. For such situations, determination has to be made, on the touchstone of reasonableness founded on good faith.
It was submitted, that in the facts and circumstances of the present controversy, a trained intuition and disciplined judgment of the adjudicator, would have to be invoked. Because, the cause would have to be adjudicated on the principle of prudence and rationality. Herein, according to learned counsel, the remedy provided would have to be handcrafted, rather than the routine - mechanical exercise of enforcing legislative intent. Herein, the events would have to be evaluated, keeping in mind the special circumstances - and their significance, in order to render complete justice.
6. It was submitted, that in exercise of judicial intuition and judicial discretion, J. Chelameswar, J. had categorized the controversy as one where the appellants had acquired "knowledge". The cancellation of their admission would not be of any advantage to the more meritorious candidates, who were deprived of admission, as it is not possible to transfer the "knowledge" acquired by the appellants. In the present situation, it was submitted, that it was not possible to restore status quo ante. The instant controversy, it was pointed out, could not be dealt with like a dispute concerning immovable property, wherein, on the culmination of the lis, the property can be restored to the rightful owner.
Herein, the meritorious candidates, who ought to have been admitted in place of the appellants, cannot have the advantage of transfer of "knowledge" acquired by the appellants. It was submitted, that to deal with the acquired "knowledge", J. Chelameswar, J., had taken recourse to Article 142, to legitimize only the "knowledge" acquired by the appellants, and not their actions or conduct. This determination, was also considered to be, of societal advantage. It would take five years (- the duration of medical course) of national resources, to acquire what had been annulled by Vyapam. Invalidation of the fruits of gained "education" was considered by the Hon'ble Presiding Judge of the 'former Division Bench', as an inappropriate means, to deal with the situation.
It was submitted, that this advantage was far superior to the individual gains which would accrue to the appellants, or the individual loss which may have been suffered by the meritorious candidates deprived of admission. It was also asserted, that while invoking Article 142 to the advantage of the appellants, the situations wherein the jurisdiction could not be invoked, were dealt with in detail. Only after arriving at the conclusion, that the situation in hand, would not trample upon the determined legal position, the Hon'ble Presiding Judge had chosen to exercise its discretion, to do complete justice in the matter.
It was submitted, that in the absence of, violation of any laid down parameters, it would be unjust, if this Court was to set at naught, long years of educational endeavour, successfully undertaken by the appellants, which had resulted in acquisition of "knowledge" - an ability, which would enable the appellants to render valuable service to the society - and thereby serve the citizens of this country.
7. It was also the contention of learned counsel, that at the time of their admission, most of the appellants (-if not all) were juvenile, and as such, could not be blamed of the irregularity and/or illegality in the procurement of admission to the MBBS course. It was submitted, that this Court must also take into consideration, the fact that the impugned orders set at naught, admissions gained by the appellants to the MBBS course, during the years 2008 to 2012, and as such, may be well beyond the purview of consideration, under the law of limitation, even for examining their culpability/criminality.
8. As a special emphasis, learned counsel invoked the conscience of this Court, by reiterating that the "knowledge" acquired by the appellants, could not be described as tainted, even though the means of acquiring the "knowledge", may have been tainted. As such, it was submitted, that the purity of "knowledge", acquired by the appellants, consequent upon their admission to the professional institutions, needed to be preserved, through the invocation of Article 142 - to do complete justice.
9. Based on an analysis of the judgments rendered by this Court, it was submitted, that in the judgments of this Court wherein Article 142 had been invoked, would demonstrate, that whenever the law applicable to, and governing a particular cause, was found to be inadequate, or whenever the law applicable did not provide means for a complete resolution of the dispute, the endeavour of a Court ought to be, to discover and to address the manner of doing complete justice.
It was submitted, that even though the law provided for the situation obtaining in a particular cause, and there was scope for a better and more fulfilling outcome, this Court should search for the same, and give effect to it. It was contended, that this Court had found good reason to invoke the power vested in it, to do complete justice between the parties (- through the reasoned order, of the Hon'ble Presiding Judge, of the 'former Division Bench').
It was submitted, that whenever legal resources and materials were found to be in a state of indeterminacy, calling for articulation of new principles, and fashioning new remedies, this Court would reach out to a just cause, by invoking Article 142, by filling up the lacuna. It was pointed out, that indeterminacy or lack of completeness of law and legal resources, in a given case, was the foundation for invocation of Article 142.
Learned counsel ventured to clarify, that in doing complete justice, whilst a Court would not act in disregard to binding provisions of law, the said restraint was applicable only with reference to an available statutory regime/scheme. Thus viewed, whenever there was an available statutory scheme, Courts would not ordinarily take recourse to Article 142, but in the absence thereof, the field would always remain wide open, for this Court to intervene, and render complete justice. It was pleaded, that there could not been a better case, than the one in hand, to invoke such power.
10. It was also submitted, that the power conferred on this Court through Article 142, could not be put in a straightjacket. Being constitutional in conferment, this Court whenever persuaded for a just cause, would step in to render complete justice, by exercising its inherent power. This exercise of inherent power, according to learned counsel, was free from any fetters. And for exercise of such power, this Court ought never and never, close the doors for creative engagement. Whenever a situation for exercise of such power is triggered by its conscience, this Court should not be lax, in providing the desired relief.
It was submitted, that the present controversy exhibited an important perception for doing justice. Based on an exploration of a relevant legal principle, the Hon'ble Presiding Judge of the 'former Division Bench', had invoked the inherent power to render complete justice. According to learned counsel, the Hon'ble Presiding Judge, had balanced the cause of justice, by extending societal benefits to the citizens of the country, and at the same time, provided for measures to be taken against the appellants, and also made sure, that there was sufficient deterrence. It was submitted, that the course adopted for the invocation of Article 142, had successfully preserved the "knowledge" acquired by the appellants, which constituted a national resource.
It was contended, that by requiring the appellants to render service in the field of medicine, on the payment of nominal charges, would result in a win-win situation, for all concerned. It was asserted, that trained minds should not be lost, merely because the appellants had gained admission, to the MBBS course by foul means. Service by the appellants, to the nation, for a period of 5 years (postulated in the order passed by the Hon'ble Presiding Judge), according to learned counsel, was an apt balancing factor, which would also act as a deterrent to others in future.
11. It was also submitted, that on a composite understanding of various facts and circumstances of the case, it was clear, that the view taken by the Hon'ble Presiding Judge (of the 'former Division Bench'), cannot be described outlandish. Nor could it be considered, as being violative of any accepted principle of law, and not even in contravention of any statutory scheme. It was submitted, that the exercise of jurisdiction under Article 142, by one of the Hon'ble Judges of the 'former Division Bench', could be termed as an act of rendering corrective justice. Justice which was particularly invoked, to ameliorate the ruinous effect, which the appellants would have to suffer, consequent to the cancellation of their admission to the MBBS course.
12. It was submitted, that in ordinary circumstances of wrongful gain, principles of law can be invoked to legitimately require the beneficiary to surrender the fruits of his gains. Such wrongful fruits of gain, would then be transferred to the rightful beneficiary. Referring to the present controversy, it was submitted, that the alleged wrong committed by the appellants in the present case, had resulted in the acquisition of "knowledge". It was submitted, that the appellants were beneficiaries of intellectual property.
Such intellectual property, cannot be withdrawn from the appellants, and transferred to those who ought to have been granted admission (in place of the appellants). Since the "knowledge" wrongfully gained by the appellants, was not transferable, according to learned counsel, the principles ordinarily invoked, whereby gains are transferred to the rightful beneficiary, cannot be implemented, in this case.
It was pointed out, that the State and the students have invested considerable resources, both monetary and human, ever since the appellants had been admitted to the MBBS course. Based whereon, the appellants had pursued their academic careers, and thereby, gained knowledge in the field of medicine. By any order, cancelling the appellants' admission to the MBBS course - the institutions would lose, the State would lose, and the appellants would also lose.
It needed to be kept in mind, that such cancellation would not result in a reciprocal gain, for those who had been deprived of admission. And as such, this Court should affirm the invocation of Article 142 in the manner expressed by the Hon'ble Presiding Judge (of the 'former Division Bench'), so that, all is not lost.
13. It was also the submission of learned counsel, that the prosecution(s) which had been initiated, and were pending against some of the appellants, or which may be launched against them, should not restrain this Court from taking such action, as it considers just and proper. Alternatively, it was submitted, that if the appellants were to be acquitted, none of these adverse or impinging consequences would flow. It was submitted, that while examining the controversy in hand, the criminality of the charges which the appellants may be blamed of, should be kept apart, as the relevant statutory provisions provide for appropriate measures of punishment. Insofar as the civil aspect of the matter is concerned, namely, the validity of the "knowledge" acquired by the appellants, in pursuit of their academic qualifications -should not be jeopardized.
Rather, according to learned counsel, the way forward, suggested by the Hon'ble Presiding Judge (of the 'former Division Bench'), was the most appropriate course, for dealing with the controversy, as it rendered complete justice in the matter. The course adopted, according to learned counsel, while benefiting the appellants, would also benefit the citizens of this country, and would not result in any consequential loss.
14. It was pointed out, that the proceedings which the appellants have pursued, whilst challenging the cancellation of their admission, through the current litigation(s), and the proceedings which the appellants might have to suffer, consequent upon the criminal cases which have been commenced - or which may be instituted against them, would result in an unfathomable amount of strain and suffering, which will always remain with them, for the rest of their lives, as an inseparable shadow.
According to learned counsel, this pain and sorrow, would serve the purpose of justice, in the facts and circumstances of this case. In this behalf, it was also submitted, that the diminished respect of the appellants, in the eyes of the general public (which the public would perceive, because of the wrongful admission of the appellants), should also weigh with the Court, as a relevant consideration for the invocation of Article 142.
It was submitted, that the conclusions drawn, on relevant and acceptable parameters, in favour of the appellants, (by the Hon'ble Presiding Judge, of the 'former Division Bench'), should not be negated, so as to deny to the appellants, the right of utilization of the "knowledge" acquired by them.
15. On the issue in hand, learned counsel placed reliance on Union Carbide Corporation v. Union of India, (1991) 4 SCC 584, and referred to contentions (A) and (B) delineated in paragraph 55 thereof, which are being extracted herein below:
"Contention (A) The proceedings before this Court were merely in the nature of appeals against an interlocutory order pertaining to the interim-compensation. Consistent with the limited scope and subject-matter of the appeals, the main suits themselves could not be finally disposed of by the settlement. The jurisdiction of this Court to withdraw or transfer a suit or proceeding to itself is exhausted by Article 139-A of the Constitution. Such transfer implicit in the final disposal of the suits having been impermissible suits were not before the Court so as to be amenable to final disposal by recording a settlement. The settlement is, therefore, without jurisdiction.
Contention (B) Likewise the pending criminal prosecution was a separate and distinct proceeding unconnected with the suit from the interlocutory order in which the appeals before this Court arose. The criminal proceedings were not under or relatable to the 'Act'. The Court had no power to withdraw to itself those criminal proceedings and quash them. The orders of the Court dated February 14 and 15, 1989, in so far as they pertain to the quashing of criminal proceedings are without jurisdiction." In order to invite our attention to the conclusions recorded by this Court, with reference to the above two contentions, learned counsel pointed out to the following paragraphs of the above judgment:
"62. The purposed constitutional plenitude of the powers of the Apex Court to ensure due and proper administration of justice is intended to be co- extensive in each case with the needs of justice of a given case and to meeting any exigency. Indeed, in Harbans Singh v. State of U.P., (1982) 2 SCC 101, the Court said: (SCC pp. 107-08, para 20) "Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Arts. 32 and 136 of the Constitution I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extra-ordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice. Having regard to the facts and circumstances of this case, I am of the opinion that this is a fit case where this Court should entertain the present petition of Harbans Singh and this Court should interfere."
63. We find absolutely no merit in this hypertechnical submission of the petitioners' learned counsel. We reject the argument as unsound." Based on the aforesaid conclusions, it was submitted, that a similar approach should be adopted in this matter also, as it was rightful to preserve the "knowledge" acquired by the appellants, to enable them to use the same, to the best advantage of the society, and the citizens of the country.
16. In his endeavour to persuade this Court, that the exercise of jurisdiction under Article 142, had rightly been invoked in favour of the appellants (by the Hon'ble Presiding Judge, of the 'former Division Bench'), our attention was drawn, to a treatise by Fali S. Nariman - India's Legal System: Can it be saved?, published by Penguin Books India Pvt. Ltd., wherein the author also expressed his views, with reference to the exercise of jurisdiction by this Court, under Article 142.
Relevant extract of the opinion, is reproduced below: "If the framers of the Constitution had contemplated an era when judicial power (not prompted by any legal provision) would be exercised in the vaccum created by governmental or state inaction, they may have been a little surprised; but then (I like to believe) they may have felt the compulsion to remove the fetter of Article 37, making the Directive Principles of State Policy directly enforceable by the courts! Individual notions of justice according to individual judges, unguided by law, sometimes known as 'palm-tree justices' or 'Cadi justice' appear to be excluded under our Constitution.
As if to emphasize this, the oath required to be taken by all judges of the higher judiciary significantly omit any reference to 'justice'. Every judge of a high court or Supreme Court takes an oath to perform the duties of his or her office without fear or favour, without affection or ill will, and to 'uphold the Constitution and the law'. But some judges are more equal than others, and in our three-tier system of court administration, judges of the Supreme Court are constitutionally placed in a class apart. Under Article 136 of the Constitution, 'the Supreme Court may in its discretion grant special leave to appeal from any judgment, appeal, determination, sentence or order, in any cause or matter passed or made by any court or tribunal in the territory of India'.
The governing words are 'in its discretion'. And there is a plethora of case law to support the proposition that even where a court or tribunal below the Supreme Court has transgressed the law, the Supreme Court is not bound to interfere, and will not interfere and set it aside under its extraordinary jurisdiction under Article 136, if it is satisfied that the interests of justice have been served. There is no compulsion for the highest court to set aside even incorrect or illegal decisions of lower courts, high courts or tribunals, if the overriding considerations of justice do not so warrant.
Even after special leave is granted under Article 136, and an appeal gets admitted, the appellant must show that exceptional and special circumstances do exist, and that if there is no interference by the highest court, substantial and grave injustice would result. Under our Constitution, judges of the Supreme Court have been conferred a special and unique power, not conferred on judges of high courts or judges of any other courts in the country. Article 142(1) provides that the Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary 'for doing complete justice in any cause or matter pending before it', and any decree so passed, or order so made, is enforceable throughout the territory of India.
Judges of the highest court, conferred with this extraordinary power, are apparently empowered to disregard statutory prohibitions- 'apparently' because there has been a flip- flop in the approach of the court- judges speaking in different voices at different times. In 1991, reading Article 142, a Constitution Bench of the Court said that any prohibition, stipulation or restriction contained in ordinary law could not act as a limitation on its constitutional powers under Article 142. But seven years later, another Constitution Bench of five Justices read Article 142(1) as not empowering the Supreme Court to bypass or override a specific statutory provision.
The latter was an instance of a hard case making bad law. For the shocking behavior in Court of an advocate (always an officer of the Court), the advocate was not only punished (by a Bench of three Justices of the Supreme Court) for contempt of court, but he was also suspended from practice for a period of three years. Since the power of suspension was statutorily vested only in the Bar Council of India, and could be reviewed by the highest court only on an appeal from a decision of the Bar Council to it, a Bench of five Justices set aside the earlier order of suspension, holding that the Bench of three Justices ought not to have overlooked an express statutory provision. In my view, the apex court has virtually denuded itself of its constitutional power to do 'complete justice'.
To be at all meaningful, the words 'complete justice' must comprehend a power to disregard statutory provisions in exceptional circumstances, unless the provisions are themselves based on some fundamental principles of public policy. When declining to exercise its extraordinary jurisdiction under Article 136 of the Constitution, the Supreme Court may (and often does) refuse to correct orders and decisions passed by high courts and other courts and tribunals even where they are illegal and contrary to law, i.e., where the justice of the case calls for no-interference.
Yet under the law as now declared by the Constitution Bench, the highest court whilst deciding a particular case before it cannot consciously overlook or bypass enacted law when exercising its wide powers under Article 142. An obvious inconsistency in approach. If the Supreme Court can be trusted under Article 136 to cock a blind eye at a decision of a high court which is contrary to law (but which is otherwise 'just'), the highest court must be likewise trusted when it deliberately ignores the law in the overriding interest of doing complete justice in a particular case before it under Article 142."
17. Learned counsel, then drew our attention to the decision in State v. Sanjeev Nanda, (2012) 8 SCC 450, and pointed out to the following observations recorded therein: "122. Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community what they owe. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one's action and inaction, human lives have been lost." Based on the above, it was the contention of learned counsel for the appellants, that Courts can consider, whether it was necessary to travel one extra mile, to do complete justice.
It was submitted, that the question whether this Court should travel an extra mile, in the facts of this case, is not difficult to answer. It was submitted, that this Court must travel the extra mile, to preserve the "knowledge" acquired by the appellants, which would enable them to give effect to the same, by effectively utilizing it for the welfare of the nation. According to learned counsel, in his opinion, the case in hand, did not present a situation, where anyone could have a second thought, simply because, there would be no one adversely affected, by adoption of such a course.
18. Learned counsel also placed reliance on Sushil Ansal v. State, (2015) 10 SCC 359, and highlighted the position expressed in paragraph 11, which is extracted below: "11. In view of the aforestated undisputed facts, the issue with regard to imposition of sentence upon the appellants is to be decided by us. We are concerned with imposition of sentence in a criminal case and not with awarding damages in a civil case. Principles for deciding both are different." It was submitted, that on the basis of the aforesaid determination, cumulative benefit of the society, in receiving service rendered by professionals (like the appellants), should also be taken into consideration.
19. Last of all, reliance was placed on Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433, wherein also, illegal admissions were dealt with. In the above judgment, this Court held as under: "71. In the present case, we have no doubt in our mind that the fault is attributed to all the stakeholders involved in the process of admission, i.e., the Ministry concerned of the Union of India, the Directorate of Medical Education in the State of Chhattisgarh, the Dean of Jagdalpur College and all the three members of the Committee which granted admission to both the appellants on 30-9-2006. But the students are also not innocent. They have certainly taken advantage of being persons of influence.
The father of Appellant 2 Akansha Adile was the Director of Medical Education, State of Chhattisgarh at the relevant time and as noticed above, the entire process of admission was handled through the Directorate. The students well knew that the admissions can only be given on the basis of merit in the entrance test and they had not ranked so high that they were entitled to the admission on that basis alone. In fact, they were also aware of the fact that no other candidate had been informed and that no one was present due to non-intimation. Out of favouritism and arbitrariness, they had been given admission by completing the entire admission process within a few hours on 30-9-2006.
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73. In the present case, we are informed that the students have already sat for their final examination and are about to complete their courses. Even if we have to protect their admissions on the ground of equity, they cannot be granted such relief except on appropriate terms. By their admissions, firstly, other candidates of higher merit have been denied admission in the MBBS course. Secondly, they have taken advantage of a very low professional college fee, as in private or colleges other than the government colleges, the fee payable would be Rs. 1,95,000/- per year for general admission and for management quota, the fee payable would be Rs. 4,00,000/- per year, but in government colleges, it is Rs. 4,000/- per year. So, they have taken a double advantage.
As per their merit, they obviously would not have got admission into the Jagdalpur College and would have been given admission in private colleges. The ranks that they obtained in the competitive examination clearly depict this possibility, because there were only 50 seats in Jagdalpur College and there are hundreds of candidates above the appellants in the order of merit. They have also, arbitrarily and unfairly, benefited from lower fees charged in Jagdalpur College.
74. On the peculiar facts and circumstances of the case, though we find no legal or other infirmity in the judgment under appeal, but to do complete justice between the parties within the ambit of Article 142 of the Constitution of India, we would permit the appellants to complete their professional courses, subject to the condition that each one of them pay a sum of Rs. 5 lakhs to Jagdalpur College, which amount shall be utilized for developing the infrastructure in Jagdalpur College."
20. In order to further illustrate the scope of the exercise of jurisdiction, vested in this Court under Article 142, learned counsel placed reliance on Academy of Nutrition Improvement v. Union of India, (2011) 8 SCC 274. It was submitted, that in the above case, the controversy related to a ban on non-iodized salt. The said ban was unsustainable in law. Be that as it may, the Court in exercise of its jurisdiction under Article 142, invoked the ground of public health, to continue the existing position, till such time as remedial action was taken by Parliament. In this behalf, our attention was drawn to the following observations of this Court: "What Relief?
68. We have already noticed that as at present there is no material to show that universal salt iodisation will be injurious to public health (that is to the majority of populace who do not suffer from iodine deficiency). But we are constrained to hold that Rule 44-I is ultra vires the Act and therefore, not valid. The result would be that the ban on sale of non- iodised salt for human consumption will be raised, which may not be in the interest of public health.
We are therefore, of the view that the Central Government should have at least six months' time to thoroughly review the compulsory iodisation policy (universal salt iodisation for human consumption) with reference to latest inputs and research data and if after such review, is of the view that universal iodisation scheme requires to be continued, bring appropriate legislation or other measures in accordance with law to continue the compulsory iodisation programme.
69. The question is having held that Rule 44-I to be invalid, whether we can permit the continuation of the ban on sale of non-iodised salt for human consumption for any period. Article 142 of the Constitution vests unfettered independent jurisdiction to pass any order in public interest to do complete justice, if exercise of such jurisdiction is not be contrary to any express provision of law. 70. In Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, this Court observed: (SCC p. 432, para 48)
"48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice 'between the parties in any cause or matter pending before it'. The very nature of the power must lead the court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by 'ironing out the creases' in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute settling. It is well recognised and established that this Court has always been a law maker and its role travels beyond merely dispute settling.
It is a 'problem solver in the nebulous areas' (see. K. Veeraswami v. Union of India, (1991) 3 SCC 655) but the substantive statutory provisions dealing with the subject-matter of a given case, cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject."
71. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284, this Court after reiterating that this Court in exercise of its jurisdiction under Article 142 of the Constitution would not pass any order which would amount to supplanting substantive law applicable to the case or ignoring express statutory provisions dealing with the subject, observed as follows: (SCC p. 294, para 27)
"27. It may therefore be understood that the plenary powers of this Court under Article 142 of the Constitution are inherent in the court and are complementary to those powers which are specifically conferred on the court by various statutes though are not limited by those statutes.
These powers also exist independent of the statutes with a view to do complete justice between the parties...and are in the nature of supplementary powers...(and) may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice. The advantage that is derived from a constitutional provision couched in such a wide compass is that it prevents 'clogging or obstruction of the stream of justice'. (See: Supreme Court Bar Assn. (supra))".
72. In view of the above and to do complete justice between the parties in the interest of public health, in exercise of our jurisdiction under Article 142 of the Constitution, we direct the continuation of the ban contained in Rule 44-I for a period of six months. The Central Government may within that period review the compulsory iodisation programme and if it decides to continue, may introduce appropriate legislative or other measures.
It is needless to say that if it fails to take any action within the expiry of six months from today, Rule 44-I shall cease to operate." Based on the conclusions drawn in the above judgments, it was submitted, that in the same manner in which judicial notice was taken by this Court, on the ground of "public health", this Court needed to take into consideration, the "knowledge" component (acquired by the appellants), and the impossibility of transferability of the intellectual property, to invoke Article 142 of the Constitution, to legitimize the curriculum successfully completed by the appellants. As such, it was pointed out, that the present consideration also falls within the permissible constitutional parameters.
It was accordingly pleaded, that the view expressed by the Hon'ble Presiding Judge (of the 'former Division Bench'), should be affirmed. 21. Having adverted to the situations wherein this Court has positively exercised power under Article 142, to provide relief to the concerned parties, learned counsel also placed for our consideration, two judgments rendered by this Court, wherein the Court had declined to exercise the power vested in it under Article 142. First of all, reference was made to Priyanka Estates International Private Limited v. State of Assam, (2010) 2 SCC 27, wherein this Court held as under:
"58. In the case in hand, it is noted that a number of occupiers were put in possession of the respective flats by the builder/developer constructed unauthorisedly in violation of the laws. Thus, looking to the matter from all angles it cannot be disputed that ultimately the flat owners are going to be the greater sufferers rather than builder who has already pocketed the price of the flat.
59. It is a sound policy to punish the wrong-doer and it is in that spirit that the courts have moulded the reliefs of granting compensation to the victims in exercise of the powers conferred on it. In doing so, the courts are required to take into account not only the interest of the petitioners and the respondents but also the interest of public as a whole with a view that public bodies or officials or builders do not act unlawfully and do perform their duties properly.
60. In the case in hand, admittedly, at no point of time Appellant 1, M/s. Priyanka Estates International (P) Ltd. was able to show to its prospective purchasers the Occupancy Certificate or Completion Certificate issued by the authorities concerned. The same could not even be shown to us and without it, Appellant 1 could not have embarked into sale of flats as it was mandatorily required.
61. The instant case is not a case of breach of contract. It is a clear case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances.
62. Even though at the first instance, we thought of invoking this Court's jurisdiction conferred under Article 142 of the Constitution of India so as to do complete justice between the parties and to direct awarding of reasonable/suitable compensation/interest to the flat owners, whose flats are ultimately going to be demolished, but, with a heavy heart, we have restrained ourselves from doing so, for variety of reasons and on account of various disputed questions that may be posed in the matter. However, we grant liberty to those, whose flats are ultimately going to be demolished, to exhaust the remedy that may be available to them in accordance with law."
It was submitted, that the aforesaid judgment pertained to violations of building norms, and the Court considered it inappropriate, to provide relief to the persons who had purchased flats, despite their vehement contention, that they were not guilty of violating the building regulations (as the builders who had sold the flats to them, had raised constructions in violation of the building norms). Additionally, reference was made to Uttar Pradesh Avas Evam Vikas Parishad v. Uttar Pradesh Power Corporation Limited, (2011) 10 SCC 643, wherein our attention was invited to the following observations:
"29. Mr. Pallav Shishodia, learned Senior Counsel also urged that the appellants are migrants from Gujarat. They have settled in Chidambaram about thirty years back and the livelihood of the entire family of the appellants which comprised of about 40 members is dependant on the saw mill existing on the subject land. Having regard to these facts, he would submit that we invoke our jurisdiction under Article 142 of the Constitution and declare the acquisition of the appellants' land bad in law to do complete justice.
30. There is no doubt that by compulsory acquisition of their land, the appellants have been put to hardship. As a matter of fact, the RDO was alive to this problem. In his report dated 14-9-1989, the RDO did observe that the landowners have spent considerable money to raise the level of the land for constructing compound wall and running saw mill. He was, however, of the opinion that the appellants' land was very suitable for the expansion of the depot and that suitable compensation can be paid to the landowners to enable them to purchase an alternative land. The appellants, however, proceeded to challenge the acquisition. The litigation has traversed upto this Court and taken about 22 years. The public purpose has been stalled for more than two decades.
31. Being the highest court, an extraordinary power has been conferred on this Court under Article 142 to pass any decree, order or direction in the matter to do complete justice between the parties. The power is plenary in nature and not inhibited by constraints or limitations. However, the power under Article 142 is not exercised routinely. It is rather exercised sparingly and very rarely. In the name of justice to the appellants, under Article 142, nothing should be done that would result in frustrating the acquisition of land which has been completed long back by following the procedure under the Act and after giving full opportunity to the appellants under Section 5-A.
The possession of the land has also been taken as far back as on 25-7-2001." It was submitted, that the contours and parameters of the consideration recorded in the two cases referred to by him, could not be extended to the case of the appellants, which is unique and distinguishable from the cited cases, for reasons already expressed above. 22. Our attention was also drawn to the judgment rendered in State of Punjab v. Rafiq Masih (Whitewasher), (2014) 8 SCC 883, wherein this Court recorded the distinction between the exercise of jurisdiction vested in this Court under Article 136 as against Article 142.
The relevant determination was expressed in the following paragraphs:
"8. In our view, the law laid down in Chandi Prasad Uniyal case, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Articles 136 and 142 of the Constitution of India. Distinctively, although the words employed under the two aforesaid provisions speak of the powers of this Court, the former vest a plenary jurisdiction in the Supreme Court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter.
The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged Under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing 'complete justice' in any cause or matter.
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12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice-oriented approach as against the strict rigours of the law. The directions issued by the court can normally be categorized into one, in the nature of moulding of relief and the other, as the declaration of law.
"Declaration of law" as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land. This Court in the case of Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72, Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and in State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India.
They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalized and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared.
The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case."
Based on the above distinction between the exercise of jurisdiction under Articles 136 and 142 of the Constitution, it was submitted, that the power to do complete justice under Article 142, was far-far beyond the power vested in this Court under Article 136. It was therefore, the submission of learned counsel, that this Court should not refrain from extending complete justice to the appellants, in the manner expressed by the Hon'ble Presiding Judge (of the 'former Division Bench').
23. Mr. Shyam Divan, learned senior counsel, entered appearance on behalf of an appellant (in C.A. No.1752 of 2016). Some of the submissions advanced by learned counsel, were the same as were canvassed by Mr. R. Venkataramani. Rather than repeating the same, we have incorporated the said submissions, along with the contentions advanced by Mr. R. Venkataramani. Mr. Shyam Divan during the course of advancing his submissions, pointed out, that even though the appellant represented by him, was admitted to the MBBS course in 2008, he had not yet qualified all the professional examinations of the course. It was submitted, that the cancellation order in case of the appellant, was passed after 6 years of his admission (- in April 2014).
Referring to the factual position noticed in the impugned judgment, dated 7.10.2014 (rendered by the High Court of Madhya Pradesh), it was submitted, that in the Pre-Medical Test conducted for admissions in the year 2008, the candidatures of 42 students were cancelled, on account of discovery of tampering in their