GAURAV JAIN AND ANR. versus UNION OF INDIA AND ORS.

Citation: [1998] 2 S.C.R. 493 · Decided: 30-03-1998 · Supreme Court of India · Bench: SUJATA V. MANOHAR · Disposal: Case Allowed
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Judgment (excerpt)

GAURAV JAIN AND ANR. 
A 
v. 
.. 
~ 
UNION OF INDIA AND ORS. 
MARCH 30, I 998 
[MRS. SUJATA V. MANOHAR, S.P. KURDUKAR AND 
B 
D.P. WADHWA, JJ.] 
---<, 
Constitution of India, I950-Articles 32, I42 and 145-Public Interest 
Litigation-Order of Supreme Court-Enforcement of-Member of Division c 
Bench having difference of opinion-One of them resorts to Article 142-
Issuing direction for enforcement of his orders despite the dissent by other 
Judge-Held, not proper-Matter must be referred to Chief Justice of India 
of constituting larger Bench. 
In Gaurav v. Union of India & Others, (1977) 8 SCC 114, the two D 
Judges in the Division Bench, gave separate dissenting judgments. One of 
·t-
them resorted to Article 142 for the purpose of enforcement of his directions 
although his brother judge had dis:ented from those directions, on the 
ground that reference to a larger Bench would cause delay. 
In this review challenging the said directions, the appellant contended E 
that the matter must necessarily be referred to the Chief Justice of India 
for constituting a larger Bench under the provisions of Article 145(5). 
Allowing the Review Petition, this Court 
HELD : 1. When a Bench consists of two judges and they differ, even F 
# 
~ 
if it is a public interest litigation, the provisions of Article 145(5) will apply 
and the matter must necessarily be referred to the Chief Justice of India for 
constituting a larger Bench. [ 498-C) 
2. When two Juciges differ, the matter will have to be decided by a· 
larger Bench and there is bound to be some delay but such a reference is G 
necessary in the interest of justice. It is necessary that the court speaks 
with one voice and that voice is the voice of the majority as propounded in 
~ 
Article 145(5). Only then its orders can be enforced. (499-G( 
-.... 
3. Article 142 does not and cannot override Article 145(5). The.decree 
and Order issued under Article 142 must be issued with the concurrence H 
493 
494 
SUPREME COURT REPORTS 
[ 1998] 2 S.C.R. 
A of the majority of Judges hearing the matters. 1498-GI 
Prem Chand Garg and Anr. v. Excise Commissioner, U.P. and Ors., AIR 
(1963) SC 996, referred to. 
4. Powers conferred by Article 142(1) cannot contravene the provisions 
B of Article 145(5). Article 142 would not entitled a judge sitting on a Bench 
of two Judges, who differs from his colleague to issue direction for the 
enforcement of his order although it may not be the agreed order of the 
Bench of two Judges. If this were to be permitted, it would lead to conflicting 
directions being issued by each Judge under Article 142, directions which 
C may quite possibly nullify the directions given by another Judge on the same 
Bench. This would put the Court in an untenable position because if in a 
Bench of two Judges, one Judge can resort to Article 142 for enforcement 
of his directions, the second Judge can do likewise for the enforcement of 
his directions. And even in a larger Bench, a Judge holding a minority view 
can issue his order under Article 142 although it may conflict with the order 
D issued by the majority. This would put the Court in an in defensible situation 
and lead to total confusion. Article 142 is not meant for such a purpose and 
cannot be resorted to in this fashion. (499-C-F] 
E 
CIVIL APPELLATE JURISDICTION : Review Petition (C) No. 1841 
of 1997 in Writ Petition (C) No. 824 of 1988. 
(Under Article 32 of the Constitution of India.) 
. 
. 
Ms. K. Amareshwari, Gaurav Jain, R.S. Suri, Ms. Abha Jain, K.S. Bhati, 
S. Bhoumik, V. Shanna, A.K. Srivastava, Ms. Sushma Suri, Ranjan Mukherjee 
F (NP), S.K. Jain, Vijay Hansa.-ia, Y.P. Mahajan, Mrs. Ani.l Katiyar, Ms. Madhur 
Dadlani, S.K. Agnihotri, V.C. Pragasam (NP), B.B. Singh (NP), C.V.S. Rao (NP), 
D.M. Nargolkar (NP), R.K. Mehta (NP), Shri Narain (NP), Ashok Mathur (NP), 
R.P. Mishra (NP), D.N. Mukherjee (NP), M.N. Shroff(NP), Ms. S. Janar.i (NP), 
M. Veerappa (NP), Aruneshwar Gupta (NP), V. Krishnarnurthy (NP), T. Anil 
Kumar (NP) and Vishal Jeet (In person) for the appearing parti~s. 
G 
The Judgment of the Court was delivered by 
MRS. SUJAT A V. MANO HAR, J. This is a somewhat unusual review 
petition filed by the Supreme Court Bar Association and supported by Gaurav 
Jain, the original petitioner, in respect of a decision of a Bench of two judges 
H of this court, Ramaswamy and Wadhwa, JJ. in writ petition (C) No. 824of1988, 
A... 
GAURAV JAIN v. U.0.1. [SUJATA V. MANOHAR, J.] 
495 
Gaurav Jain v. Union of
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