BENEDICT DENIS KINNY versus TULIP BRIAN MIRANDA & ORS.
[2020] 8 S.C.R. 1080, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Body
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1080
[2020] 8 S.C.R. 1080
BENEDICT DENIS KINNY
v.
TULIP BRIAN MIRANDA & ORS.
(Civil Appeal Nos.1429-1430/2020)
MARCH 19, 2020
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Constitution of India – Art. 226 – Mumbai Municipal
Corporation Act, 1888 – s. 5B – In one civil appeal, the respondent
and appellant contested the election on the seat of counsellor in
Mumbai Municipal Corporation reserved for backward class citizens
– s.5B of the 1888 Act required the candidate to submit caste validity
certificate on the date of filing nomination paper – It is provided in
the second proviso to s.5B that if a person fails to produce the
validity certificate within a period of six months (now twelve months)
from the date of election, the election shall be deemed to have been
terminated retrospectively and he shall be disqualified for being a
Counsellor – On 23.02.2017 respondent was declared elected –
The Scrutiny Committee by its order dated 14.08.2017 refused to
grant caste validity certificate in favour of the respondent – The
respondent filed writ petition challenging the order of the Scrutiny
Committee dated 14.08.2017 – The High Court passed an interim
order dated 18.08.2017 in favour of respondent by staying the order
dated 14.08.2017 and directed not to take any action of
disqualification against the respondent till the pendency of the writ
petition – Thereafter, the High Court quashed the order of the
Scrutiny Committee and
remanded the matter for fresh consideration
– In another civil appeal, both the appellant and respondent no.5
contested election to Mumbai Municipal Corporation ward reserved
for backward class citizen – The respondent no.5 was declared
elected on 23.02.2017 – The Scrutiny Committee rejected the claim
of the respondent no.5 that she belongs to ‘Koyari caste’ – The
respondent no. 5 filed writ petition before the High Court – The
High Court passed interim order dated 22.08.2017 directing not to
take any coercive action against the respondent no. 5 – Later, the
High Court set aside the order passed by the Scrutiny Committee
and declared that the respondent no.5 belonged to the ‘Koyari caste’
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– Whether the interim orders passed by the High Court in both the
civil appeals, directing not to take any coercive action against the
writ petitioners and allowing writ petitioners to continue on their
seats, were the orders beyond the jurisdiction of the High Court
u/Art. 226 and could not have been passed in view of the statutory
scheme of s. 5B – Held: The power u/Art. 226 of the Constitution
overrides any contrary provision in a statute and the power of the
High Court u/Art. 226 cannot be taken away or abridged by any
contrary provision in a statute – When a citizen has right to judicial
review against any decision of statutory authority, the High Court
in exercise of judicial review had every jurisdiction to maintain the
status quo so as to by lapse of time, the petition may not be
infructuous – The interim order can always be passed by a High
Court in exercise of writ jurisdiction to maintain the status quo in
aid of the relief claimed so that at the time of final decision of the
writ petition, the relief may not become infructuous – Further, s.5B
of the Mumbai Municipal Corporation Act does not oust the
jurisdiction of High Court u/Art.226 of the Constitution – There is
no fetter in the jurisdiction of the High Court in granting an interim
order in a case where caste claim of the respondents was illegally
rejected before the expiry of period of six months and the High
Court granted the interim order before the expiry of the period of
six months,
as then prescribed – In the instant case, the deeming
fiction under s.5B of retrospective termination of the election could
not come in operation due to the interim order passed by the High
Court – The interim orders passed by the High Court were not beyond
the jurisdiction u/Art. 226 of the Constitution.
Dismissing the appeals, the Court
HELD: 1. The following points arise for consideration:-
(i) Whether the jurisdiction of the High Court under Article
226 of the Constitution of India is ousted due to statutory scheme
of Section 5B of the Mumbai Municipal Corporation Act?
(ii) Whether High Court had no jurisdiction to pass an
interim or final order, the effect of which is to interdict the statutory
fiction under Section 5B to the effect that in event the Caste
Scrutiny Certificate is not submitted within six months (now twelve
months) from the date of election, the election shall be deemed
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
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to have been terminated retrospectively and the candidate shall
be disqualified for being Councillor?
(iii) Whether the interim order dated 18.08.2017 in Writ
Petition No.2269 of 2017 staying the order dated 14.08.2017 of
the Caste Scrutiny Committee with direction to respondent Nos.
2 to 4 not to take any action of disqualification as well as the final
judgment dated 02.04.2019 remanding the matter to the Caste
Scrutiny Committee during which writ petitioner was held to be
entitled to continue, were the orders beyond jurisdiction of the
High Court under Article 226 and could not have been passed in
view of the Statutory Scheme of Section 5B?
(iv) Whether the interim order of the High Court dated
22.08.2017 passed in Writ Petition No. 145 of 2018 directing the
respondents not to take any coercive action against the writ
petitioner on the basis of the Caste Scrutiny Committee’s order
as well as the final judgment of the High Court dated 02.04.2019
allowing the writ petition and holding that writ petitioner was
entitled to continue on her seat, were the orders beyond
jurisdiction of the High Court under Article 226 and could not
have been passed in view of the Statutory Scheme delineated in
Section 5B? [Para 10][1090-B-G]
2. In the facts of the present case, the deeming fiction of
retrospective termination of the election could not come in
operation due to the interim order passed by the High Court,
hence deeming
fiction under Section 5B second proviso never
came into existence to retrospectively terminate the election of
the respondent. The submission of the appellant that interim
order of the High Court could not have been allowed to continue
beyond the period of six months/one year cannot be accepted.
No such fetter can be read in the jurisdiction of the High court or
in the interim order passed by the High Court in exercise of the
jurisdiction under Article 226 nor any kind of fetter can be read
from any State enactment. [Para 51][1114-B-D]
3. This Court arrives at following conclusions:-
(i) The power of judicial review vested in the High Courts
under Article 226 and this Court under Article 32 of the
Constitution is an integral and essential feature of the
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Constitution and is basic structure of our Constitution. The
jurisdiction under Article 226 is original, extraordinary and
discretionary. The look out of the High Court is to see whether
injustice has resulted on account of any decision of a constitutional
authority, a tribunal, a statutory authority or an authority within
meaning of Article 12 of the Constitution.
(ii) The Courts are guardians of the rights and liberties of
the citizen and they shall fail in their responsibility if they abdicate
their solemn duty towards the citizens. The scope of Article 226
is very wide and can be used to remedy injustice wherever it is
found.
(iii) The power under Article 226 of the Constitution
overrides any contrary provision in a Statute and the power of
the High Court under Article 226 cannot be taken away or abridged
by any contrary provision in a Statute.
(iv) When a citizen has right to judicial review against any
decision of statutory authority, the High Court in exercise of
judicial review had every jurisdiction to maintain the status quo
so as to by lapse of time, the petition may not be infructuous.
The interim order can always be passed by a High Court in
exercise of writ jurisdiction to maintain the status quo in aid of
the relief claimed so that at the time of final decision of the writ
petition, the relief may not become infructuous.
(v) It is true that requirement of submission of Caste Validity
Certificate within a period of one year under Section 5B
of Mumbai
Municipal Corporation Act is mandatory requirement but in the
facts of the case before this Court before the expiry of the period
of six month, the Caste Scrutiny Committee had illegally rejected
the claim necessitating filing of writ petition by aggrieved persons
in which writ petition the interim relief was granted by the High
Court. The power of the High Court to grant an interim relief in
appropriate case cannot be held to be limited only for a period of
one year, which was period envisaged in Section 5B for submission
of the Caste Validity Certificate. No such fetter on the power of
the High Court can be read by virtue of provision of Section 5B.
(vi) There is no fetter in the jurisdiction of the High Court
in granting an interim order in a case where caste claim of the
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respondents was illegally rejected before the expiry of period of
six months and the High Court granted the interim order before
the expiry of the period of six months, as then prescribed.
(vii) In the facts of the present case, the deeming fiction
under Section 5B of retrospective termination of the election
could not come in operation due to the interim order passed by
the High Court. [Para 51][1114-D-H; 1115-A-F]
4.  This Court, for the discussion and conclusions as above,
answer the points formulated in following manner: -
(i) Section 5B of the Mumbai Municipal Corporation Act
does not oust the jurisdiction of High Court under Article 226 of
the Constitution.
(ii) The High Court in exercise of jurisdiction under Article
226 of the Constitution can pass an order interdicting the legal
fiction as contemplated under second proviso to Section 5B,
provided the legal fiction had not come into operation.
(iii) The interim order dated 18.08.2017 in Writ Petition
No.2269 of 2017 as well as the impugned final judgment dated
02.04.2019 were not beyond the jurisdiction of High Court under
Article 226 of the Constitution.
(iv) The interim order dated 22.08.2017 and final judgement
dated 02.04.2019 in Writ Petition No.145 of 2018 were not the
orders beyond the jurisdiction of High Court under Article 226
of the Constitution. [Para 52][1115-G-H; 1116-A-C]
In re The Kerala Education Bill, 1957, AIR 1958 SC
956 : [1959] SCR 995;
Mafatlal Industries Ltd. and
Others v. Union of India and Others, (1997) 5 SCC
536 : [1996] 10 Suppl. SCR  585 – followed.
Sangram Singh v. Election Tribunal Kotah and Another,
AIR 1955 S.C. 425 : [1955] SCR 1; Re: Under Article
143 of the Constitution of India, AIR 1965 SC 745 :
[1965] SCR 413 ; L. Chandra Kumar v. Union of India
and Others, (1997) 3 SCC 261 : [1997] 2 SCR 1186;
Election Commission of India through Secretary v. Ashok
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Kumar and Others, (2000) 8 SCC 216 : [2000] 3 Suppl.
SCR 34; Asian Resurfacing of Road Agency Private
Limited and Another v. Central Bureau of Investigation,
(2018) 16 SCC 299 : [2018] 2 SCR 1045 – relied on.
Padma Sundara Rao (Dead) and Others v. State of T.N.
and Others, (2002) 3 SCC 533 : [2002] 2 SCR 383; K.
Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 :
[2005] 1 SCR 296 – held inapplicable.
Shankar S/o Raghunath Devre (Patil) v. State of
Maharashtra and Others, (2019) 3 SCC 220; The State
of Orissa v. Madan Gopal Rungta, [1952] SCR 28: AIR
1952 SC 12; State of U.P. and Others v. Harish Chandra
and Others, (1996) 9 SCC 309 : [1996] 1 Suppl. SCR
260; Bihar Public Service Commission and Another v.
Dr. Shiv Jatan Thakur and Others, (1994) Supp. 3 SCC
220 : [1994] 2 Suppl. SCR 94 – referred to.
Anant H. Ulahalkar and Ors. v. Chief Election
Commissioner and Ors., 2017 (1) Bom CR 230 –
referred to.
Case Law Reference
(2019) 3 SCC 220
referred to
Para 5
[1955] SCR 1
relied on
Para 21
[1959] SCR 995
followed
Para 22
[1965] SCR 413
relied on
Para 27
[1997] 2 SCR 1186
relied on
Para 28
[2000] 3 Suppl. SCR 34
relied on
Para 30
[2018] 2 SCR 1045
relied on
Para 32
[1996] 10 Suppl. SCR 585
followed
Para 38
[1952] SCR 28
referred to
Para 44
[1996] 1 Suppl. SCR 260
referred to
Para 45
[1994] 2 Suppl. SCR 94
referred to
Para 46
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
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[2002] 2 SCR 383
held inapplicable
Para 49
[2005] 1 SCR 296
held inapplicable
Para 51
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1429-
1430 of 2020.
From the Judgment and Order dated 02.04.2019 in WP No. 3673/
2018 and Order dated 02.05.2019 in Review Petition (L) No. 20/2019 of
High Court of Judicature at Bombay.
With
C. A. No. 1431/2020
C.A. Sundaram, Sidharth Bhatnagar, Sr. Advs., Sudhanshu
S. Choudhari, Chintamani Bhangoji, Yogesh Kolte, Mahesh P. Shinde,
Shakul R. Ghatole, Dilip Annasaheb Taur, Pramod Gokul Kathane, Amol
V. Deshmukh, Abhishek Gupta, Prahalad Paranjape, Mehul M. Gupta,
Aditya Sidhra, R. P. Gupta, Ashish Wad, Mrs. Jayashree Wad, Sidharth
Mahajan, Ms. Sukriti Jaggi, Ajeyo Sharma, M/s. J S Wad And Co., Arun
R. Pedneker,  Hitesh Kumar Sharma, Sachin Patil, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. The question which has arisen in these appeals is as to whether
the High Court in exercise of its Constitutional jurisdiction conferred
under Article 226 of Constitution of India can pass an order interdicting
a legal fiction engrafted in a State enactment.
2. These two appeals have been filed against common judgment
dated 02.04.2019 passed in Writ Petitions filed by the contesting
respondent. Order dated 02.05.2019 in Review Petition No. 20 of 2019
filed in Writ Petition No.3673 of 2018 has also been challenged.
3. Brief facts giving rise to these
appeals are: -
A. Civil Appeal NoS.1429-1430/2020
    Benedict Denis Kinny versus Tulip Brian Miranda &ors.
i)
The respondent as well as appellant contested the election on
the seat of Counsellor in Mumbai Municipal Corporation
reserved for Backward class citizens. On 23.02.2017, the
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respondent No.1 was declared elected. Section 5B of Mumbai
Municipal Corporation Act required the candidate to submit
caste validity certificate on the date of filing Nomination paper.
A candidate who has applied to Scrutiny Committee for the
verification of his caste certificate before date of filing
Nomination but who had not received the validity certificate
on the date of filing Nomination has to submit an undertaking
that he shall submit within a period of six months from the
date of election, the validity certificate issued by the Scrutiny
Committee.
ii) It was further provided that if a person fails to produce the
validity certificate within a period of six months from the date
of election, that election shall be deemed to have been
terminated retrospectively and he shall be disqualified for being
a Counsellor. The period of six months was amended to be
twelve months by Amendment Act, 2018.
iii) The Scrutiny Committee vide its order dated 14.08.2017 held
that respondent No.1 do not belong to East Indian Category.
Therefore, it refused to grant Caste validity certificate in favour
of the respondent. Writ Petition No.2269 of 2017 was filed by
respondent challenging order of the Caste Scrutiny Committee
dated 14.08.2017.
iv) The High Court vide order dated 18.08.2017 passed an interim
order in favour of respondent No.1 in terms of Prayer clauses
(b) and (c). The High Court vide its judgment and order dated
02.04.2019 allowed the writ petition filed
by respondent No.1
and quashed the order of the Scrutiny Committee dated
14.08.2017 and remanded the matter to Scrutiny Committee
for fresh consideration.
v) The High Court by the judgment dated 02.04.2019 also directed
that the respondent No.1 is entitled to continue in her seat,
since the effect of disqualification was postponed by interim
order and the impugned order of the Caste Scrutiny Committee
has been set aside.
vi) Aggrieved by the judgment and order dated 02.04.2019,
Review Petition(L) No.20 of 2019 was filed by the appellant
which too has been rejected by the High Court by the order
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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dated 02.05.2019. Both the orders dated 02.04.2019 and
02.05.2019 have been challenged by the appellant in this appeal.
B. Civil Appeal No.1431/2020
Smt. Prachi Prasad Parab versus The State of Maharashtra
and ors.
i) Both, the appellant and respondent No.5, Sudha Shambu Nath
Singh contested election to the Mumbai Municipal Corporation
held from ward No.67 which was reserved for Backward class
citizen. The respondent No.5 was declared elected on
23.02.2017. The Scrutiny Committee rejected the claim of
respondent No.5 that she belongs to ‘Koyari’ caste which is
included in the category of OBC in the State of Maharashtra
vide order dated 19.08.2017. The respondent No.5 filed a Writ
Petition No.145 of 2017 in which interim order dated 22.08.2017
was passed directing the respondent not to take any coercive
action against the respondent No.5 on the basis of Order passed
by Scrutiny Committee.
ii) The High Court by impugned judgment dated 02.04.2019
allowed the writ petition filed by respondent No.5 by setting
aside the order dated 19.08.2017 passed by Caste Scrutiny
Committee and declared that the respondent No.5 belongs to
Koyari Caste.
iii) In view of setting aside of the order of Caste Scrutiny
Committee, it was held that respondent No.5 was entitled to
continue in her seat since the effect of disqualification was
postponed by an interim order passed by the High Court in the
writ petition.
iv) The appellant aggrieved
by the judgment dated 02.04.2019 has
come up in this appeal.
4. We have heard Shri Sudhanshu S. Choudhari, learned counsel
for the appellant, in both the appeals. Shri C.A. Sundaram, learned senior
counsel has appeared on behalf of Tulip Brian Miranda. Shri Sidharth
Bhatnagar, senior Advocate appeared for respondent No.5. We have
also heard learned counsel appearing for the State of Maharashtra.
5. Shri Sudhanshu S. Choudhari, learned counsel for the appellant
submits that requirement of submission of Caste validity certificate by
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Caste Scrutiny Committee within period of one year from the date of
election is a mandatory requirement as held by the Full-Bench of Bombay
High Court in Anant H. Ulahalkar and Ors. Vs. Chief Election
Commissioner and Ors., 2017 (1) BomCR 230, which has received
approval by this Court in case of Shankar S/o Raghunath Devre (Patil)
Vs. State of Maharashtra and Others, (2019) 3 SCC 220.  The
contesting respondent having failed to submit Caste Scrutiny certificate
within one year from 23.02.2017, their election as counsellor
retrospectively stands terminated and High Court committed error in
allowing them to continue on their seat.
6. It is submitted that High Court could not have extended the
period beyond one year to produce the Caste Validity certificate. The
provisions of Section 5B of Mumbai Municipal Corporation being
mandatory, it has to be strictly construed and in no case the said period
could have been extended by order of the High Court in exercise of
jurisdiction under Article 226 of Constitution of India. The High Court
could not have passed any interim order against the statutory provision
as contained in Section 5B.
7. Shri C.A. Sundaram, learned senior counsel appearing for the
respondent contends that Judicial remedy cannot be taken away by the
statutory provisions. The right of the respondent to judicial remedy is a
Fundamental Right. The High Court passed an order within the time and
High Court in Writ Petition was considering a wrong
order against which
Interim order was rightly passed to protect right of the respondent so
that whole exercise may not be rendered infructuous.
8. Alternately, it is submitted that in pursuance of the remand
order now subsequently the Caste Scrutiny Committee has verified the
caste of the respondent and the order shall relate back to the date when
it was initially passed i.e. on 14.08.2017.
9. Learned counsel appearing for respondent No.5 in Civil Appeal
No.1431/2020 contends that jurisdiction under Article 226 cannot be
curtailed by any statutory provision. The respondent No.5 cannot be left
remedy less. It has been held that there is an inherent power in the High
Court to pass interim orders even in Election matters. The final order of
the High Court must relate back to the date of the impugned order before
the High Court. The time taken in the adjudication before the courts
ought not to be used against the respondent No.5. The interim order
granted by the High Court was to protect the rights of respondent No.5
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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during pendency of the writ petition so that in event the wrong order
passed is set aside, the respondent No.5 may not be put to irreparable
loss.
10. From the submissions of learned counsel for the parties and
pleadings on record following points arise for consideration:-
(i)
Whether the jurisdiction of the High Court under Article 226
of the Constitution of India is ousted due to statutory Scheme
of Section 5B of the Mumbai Municipal Corporation Act?
(ii) Whether High Court had no jurisdiction to pass an interim or
final order, the effect of which is to interdict the statutory
fiction under Section 5B to the effect that in event the Caste
Scrutiny Certificate is not submitted within six months (now
twelve months) from the date of election, the election shall
be deemed to have been terminated retrospectively and the
candidate shall be disqualified for being Councillor?
(iii) Whether the interim order dated 18.08.2017 in Writ Petition
No.2269 of 2017 staying the order dated 14.08.2017 of the
Caste Scrutiny Committee with direction to respondent Nos.2
to 4 not to take any action of disqualification as well as the
final judgment dated 02.04.2019 remanding the matter to the
Caste Scrutiny Committee during which writ petitioner was
held to be entitled to continue,were the orders beyond
jurisdiction of the High Court under Article 226 and could not
have been passed in view of the Statutory Scheme of Section
5B?
(iv)
Whether the interim order of the High Court dated 22.08.2017
passed in Writ Petition No. 145 of 2018directing the
respondents not to take any coercive action against the writ
petitioner on the basis of the Caste Scrutiny Committee’s
order as well as the final judgment of the High Court dated
02.04.2019 allowing the writ petition and holding that writ
petitioner was entitled to continue on her seat, were the orders
beyond jurisdiction of the High Court under Article 226 and
could not have been passed in view of the Statutory Scheme
delineated in Section 5B?
11. Before we proceed to consider the respective submissions of
the learned counsel for the parties on the points as noted above, we may
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first look into the relevant Constitutional and statutory provisions governing
the field.
12. By the Constitution (Seventy-fourth Amendment) Act, 1992,
Part IXA “The Municipalities” have been inserted in the Constitution.
Article 243T provides for reservation of seats in a municipality. In
consequence of Constitutional (Seventy-fourth) Amendment, the
provisions of the Mumbai Municipal Corporation Act, 1888 were amended
by inserting Section 5A by Maharashtra Act No. 41 of 1994 providing
for reservation of seats.  Section 5B was inserted by Maharashtra Act
No.25 of 2006 w.e.f. 19.08.2006 providing for “person contesting election
for reserved seat to submit Caste Certificates and Validity Certificate”.
The provision of Section 5B were deleted by Maharashtra Act No.13 of
2008 but were again re-inserted w.e.f. 08.10.2012 by Maharashtra Act
No.21 of 2012.  By Maharashtra Act No.13 of 2015, the expression
“before 31.12.2013 came to be substituted by the expression before
31.12.2017”, which came into effect w.e.f. 01.04.2015.  At the time,
when the election in question was held,following provision of Section 5B
was in force:-
“5B. Person contesting election for reserved seats to submit
Caste Certificate and Validity Certificate:- Every person
desirous of contesting election to a seat reserved for the Scheduled
Castes, Scheduled Tribes, or, as the case may be, Backward Class
of Citizens, shall be required to submit, alongwith the nomination
paper, Caste
Certificate issued by the Competent Authority and
the Validity Certificate issued by the Scrutiny Committee in
accordance with the provisions of the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes (VimuktaJatis),
Nomadic Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance and Verification of) Caste
Certificate Act, 2000 (Nag, XXIII of 2001).
Provided that for the General or bye-elections for which
the last date of filing of nomination falls on or before the 31st
December, 2017, in accordance with the election programme
declared by the State Election Commission, a person who has
applied to the Scrutiny Committee for the verification of his Caste
Certificate before the date of filing the nomination papers but
who has not received the validity certificate on the date of filing
of the nomination papers shall submit alongwith the nomination
papers,-
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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(i)
a true copy of the application preferred by him to the
Scrutiny Committee for issuance of the validity certificate
or any other proof of having made such application to
the Scrutiny Committee; and
(ii)
an undertaking that he shall submit, within a period of
six months from the date of his election, the validity
certificate issued by the Scrutiny Committee;
Provided further that, if the person fails to produce the
validity certificate within a period of six months from the date of
his election, his election shall be deemed to have been terminated
retrospectively and he shall be disqualified for being a Councillor.”
13. A further amendment was made in Section 5B by Maharashtra
Act No.LXV of 2018.  In Section 5B of the Mumbai Municipal Corporation
Act, following amendments were made:-
“2. In section 5B of the Mumbai Municipal Corporation Act
(hereinafter in this Chapter referred to as “Mumbai Corporation
Act”),—
(a) in the first proviso, in clause (ii), for the words “six
months” the words “twelve months” shall be substituted and shall
be deemed to have been substituted with effect from 7th April
2015;
(b) in the second proviso, for the words “six months” the
words “twelve months” shall be substituted and shall be deemed
to have been substituted with effect from 7th April 2015;
(c) after the second proviso, the following proviso shall be
added, namely:—
“Provided also that, in respect of the undertaking filed by
any
person under clause (ii) of the first proviso, before the date of
commencement of the Mumbai Municipal Corporation, the
Maharashtra Municipal Corporations and the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
(Third Amendment) Act, 2018, the period of “six months” specified
in such undertaking shall be deemed to have been substituted as
“twelve months”.”.
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14. Two more provisions of Maharashtra Act No. LXV of 2018
needs to be noted, which are contained in Chapter V “Miscellaneous”,
i.e., Sections 8 and 9, which are to the following effect:-
“8. Nothing in this Act shall affect the elections conducted by the
State Election Commission for conducting the elections or any
programme declared by it therefor, prior to the date of
commencement of the Mumbai Municipal Corporation, the
Maharashtra Municipal Corporations and the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
(Third Amendment) Act, 2018, for filling up the resultant vacancy
in view of the provisions of section 5B or sub-section (2A) of
section 37 of the Mumbai Municipal Corporation Act, section 5B
or sub-section (1B) of section 19 of the Maharashtra Municipal
Corporations Act, section 9A or section 51-1B of the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
Act,1965, as it stood prior to such date of commencement.
9. Any person, who has obtained the Caste Certificate and validity
certificate but has not filed such certificate prior to the date of
commencement of this Act, shall not be deemed to be disqualified
under the provisions of the relevant Municipal law, if he submits
such certificate within a period of fifteen days from the date of
commencement of this Act:
Provided that, the provisions of this section shall not apply
where the State Election Commission has already prior to the
date of
commencement of this Act held elections to fill the vacancy
of such person or declared the programme for holding of such
election.”
15. Now, reverting to the facts of case in Civil Appeal Nos.1429-
1430 of 2020, the election was held and the respondent was declared
elected on 23.02.2017 and as per Section 5B as existing at that time, the
Caste Scrutiny Certificate verified by Caste Scrutiny Committee was to
be submitted within six months i.e., by 22.08.2017. The Caste Scrutiny
Committee rejected the claim of respondent by order dated 14.08.2017,
which was challenged by filing a Writ Petition No. 2269 of 2017 before
he Bombay High Court.  On 18.08.2017Bombay High Court granted
interim order in terms of prayer clause (b)&(c) of the writ petition.
Paragraph 5 of the interim order dated 18.08.2017 is to the following
effect:-
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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“5. In that view of the matter, issue notice, returnable after two
weeks.  In the meantime, there shall be ad-interim relief in terms
of prayer clauses (b) and (c).”
16. Prayers (b) and (c) in the writ petition were to the following
effect:-
“(b) Pending the hearing and final disposal of the present petition,
this Hon’ble Court may be please to stay the effect, operation
and implementation of the impugned judgment and award dated
14/08/2017 passed by the Respondent No.5.
(c) Pending the hearing and final disposal of the present petition,
this Hon’ble Court may be please to direct the respondent
No.2 and 4 not to take any action of dis-qualification based
on the impugned judgment and award dated 14/08/2017 passed
by the Respondent No.5"
17. The effect of the interim order dated 18.08.2017 was that the
respondent Nos.2 and 4 to the writ petition were restrained from taking
any action of dis-qualification based on the order dated 14.08.2017 of
the Caste Scrutiny Committee. The respondent thereafter due to stay of
disqualification continued to hold his office. The writ petition was finally
decided by the Bombay High Court on 02.04.2019. The High Court held
that order of the Scrutiny Committee dated 14.08.2017 rejecting the
claim of the respondent is unsustainable. The writ petition was allowed
and the matter was remanded to the Scrutiny Committee for
reconsideration. High Court vide its judgment dated 02.04.2019 also
took
the view that since interim order was granted protecting the elected
candidate, keeping in abeyance the consequences flowing from
invalidation of the claim, they were entitled to continue in their seats.  In
paragraph 57 of the judgment, following has been held:-
“57. …………………………….The question is only about the
two petitioners i.e. in Writ Petition Nos. 145/2018 and 3673/2018
where we have allowed the writ petition and have quashed and
set aside the order passed by the Scrutiny Committee. The elections
to the Municipal Corporation were held in February 2017 and the
result came to be declared on 23rdFebruary 2017. This Court, by
interim order dated 19thAugust 2017 had granted protection and
have put in abeyance the consequences flowing from invalidation
of the claim of the petitioner. In light of the said interim order
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passed by us, the petitioner continued to hold the office. The claim
of the petitioners has been found to be improperly rejected and
we have quashed and set aside the said order and given a
declaration to the effect that they belong to the caste which they
claim and hence should continue to hold the said post. Pursuant to
their election, in light of the said aforesaid position, the petitioners
in Writ Petition Nos. 145/2018 and 3673/2018 are entitled to
continue in their seats since the effect of disqualification was
postponed by an interim order and we have now quashed and set
aside the impugned order.”
18. The validity of the interim order passed by the High Court
dated 18.08.2017 as noted above and the final judgment dated 02.04.2019
are up for consideration before us. The similar issues have been raised
in Civil Appeal No. 1431 of 2020, the consideration of Civil Appeal Nos.
1429-1431 of 2020 shall suffice to decide Civil Appeal No.1431 of 2020
also.
19. Whether the interim order of the High Court dated 18.08.2017
could have been continued the respondent –Tulip Brian Miranda on her
seat even though six months period prescribed in Section 5B for submitting
Caste Scrutiny Certificate came to an end on 22.08.2017 and whether
the election of respondent shall stand retrospectively terminated on
22.08.2017 and further judgment dated 02.04.2019 could not have allowed
the respondent to continue on her seat despite expiry of period of one
year, which was
substituted in place of six months by Maharashtra Act
No. LXV of 2018. These are the various aspects, which need to be
answered in these appeals.
20. We need to first notice the nature and extent of the jurisdiction
of the High Court under Article 226 of the Constitution of India. The
power of judicial review vested in the High Courts under Article 226 and
this Court under Article 32 of the Constitution is an integral and essential
feature of the Constitution and is basic structure of our Constitution.
The jurisdiction under Article 226 is original, extraordinary and
discretionary. The look out of the High Court is to see whether injustice
has resulted on account of any decision of a constitutional authority, a
statutory authority, a tribunal or an authority within meaning of Article
12 of the Constitution. The judicial review is designed to prevent cases
of abuse of power or neglect of a duty by the public authority.  The
jurisdiction under Article 226 is used for enforcement of various rights
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
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of the public or to compel public/statutory authorities to discharge the
public functions entrusted on them. The Courts are guardians of the
rights and liberties of the citizen and they shall fail in their responsibility
if they abdicate their solemn duty towards the citizens. The scope of
Article 226 is very wide and can be used to remedy injustice wherever
it is found. The High Court and Supreme Court are the Constitutional
Courts, which have been conferred right of judicial review to protect the
fundamental and other rights of the citizens. Halsbury’s Laws of England,
Fifth Edition, Volume 24 dealing with the nature of the jurisdiction of
superior and inferior courts stated that no matter is deemed to be beyond
the jurisdiction of a superior court unless it is expressly shown to be so.
In paragraph 619, Halsbury’s Laws of England States:-
“The chief distinctions between superior and inferior courts
are found in connection with jurisdiction. Prima facie, no
matter is deemed to be beyond the jurisdiction of a superior
court unless it is expressly shown to be so, while nothing is
within the jurisdiction of an inferior court unless it is expressly
shown on the face of the proceedings that the particular matter
is within the cognizance of the particular court. An objection
to the jurisdiction of one of the superior courts of general
jurisdiction must show what other court has jurisdiction, so
as to make it clear that
the exercise by the superior court of
its general jurisdiction is unnecessary. The High Court, for
example, is a court of universal jurisdiction and
superintendency in certain classes of claims, and cannot be
deprived of its ascendancy by showing that some other court
could have entertained the particular claim.”
21. The nature of jurisdiction exercised by the High Courts under
Article 226 came for consideration by this Court in large number of
cases.  In Sangram Singh Vs. Election Tribunal Kotah and Another,
AIR 1955 S.C. 425, Article 226 of the Constitution of India in reference
to Section 105 of the Representation of the People Act, 1951 came for
consideration.  Section 105 of the Representation of People Act provided
that “every order of the Tribunal made under this Act (Representation
of People Act) shall be final and conclusive”. Argument was raised in
the above case that neither the High Court nor the Supreme Court can
itself transgress the law in trying to set right what it considers is an error
of law on the part of the Court or Tribunal whose records are under
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consideration. It was held that jurisdiction of the High Court remains to
its fullest extent despite Section 105.  This Court also held that jurisdiction
of the High Court in Article 226 and under Article 136 conferred on this
Court cannot be taken away by a legislative device. In paragraph 13,
following has been laid down:-
“13. The jurisdiction which Articles 226 and 136 confer entitles
the High Courts and this Court to examine the decisions of all
tribunals to see whether they have acted illegally. That jurisdiction
cannot be taken away by a legislative device that purports to confer
power on a tribunal to act illegally by enacting a statute that its
illegal acts shall become legal the moment the tribunal chooses to
say they are legal. The legality of an act or conclusion is something
that exists outside and apart from the decision of an inferior tribunal.
It is a part of the law of the land which cannot be finally
determined or altered by any tribunal of limited jurisdiction. The
High Courts and the Supreme Court alone can determine what
the law of the land is vis-a-vis all other courts and tribunals and
they alone can pronounce with authority and finality on what is
legal and what is not. All that an inferior tribunal can do is to
reach a tentative conclusion which is subject to review under
Articles 226 and 136. Therefore, the jurisdiction of the High Courts
under Article 226 with that of the Supreme Court above them
remains to its fullest extent
despite Section 105.”
22. A Seven Judge Bench of this Court in In re The Kerala
Education Bill, 1957, AIR 1958 SC 956 had occasion to consider
the jurisdiction of High Court under Article 226 in reference to a provision
in Kerala Educational Bill, 1957. Clause 33 of Kerala Education Bill
provided:-
“33. Courts not to grant injunction - Notwithstanding anything
contained in the Code of Civil Procedure, 1908, or in any other
law for the time being in force, no court shall grant any temporary
injunction or make any interim order restraining any proceedings
which is being or about to be taken under this Act.”
23. In exercise of power vested in him by Article 143(1), the
President of India had referred to this Court four questions for
consideration. Question No.4, which is relevant for the present case
was to the following effect:-
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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“Q.4. Does clause 33 of the Kerala Education Bill or any provisions
thereof, offend Article 226 of the Constitution in any
particulars or to any extend?”
24. Answering the question No.4, this Court held that no enactment
of State Legislature can take away or abridge the jurisdiction and power
conferred on the High Court under Article 226. The learned counsel
appearing for the State of Kerala submitted before this Court that the
Constitution is the paramount law of the land, and nothing short of a
constitutional amendment as provided for under the Constitution can
affect any of the provisions of the Constitution, including Article 226. It
was submitted that the power conferred upon High Courts under Article
226 of the Constitution is an over-riding power entitling them, under
certain conditions and circumstances, to issue writs, orders and directions
to subordinate courts, tribunals and authorities notwithstanding any rule
or law to the contrary. The Constitution Bench in paragraph 35 has
noticed the stand taken on behalf of State of Kerala in following words:-
“35.
XXXXXXXXXXXXXXXXXXXX
The State of Kerala in their statement of case disowns in
the following words all intentions in that behalf:
“52. Kerala State asks this Honourable Court to answer
the fourth question in the negative, on the ground that the power
given to High Courts by Article 226 remains unaffected by the
said clause 33.
53. Kerala State contends
that the argument that clause 33
affects Article 226 is without foundation.
54. The Constitution is the paramount law of the land, and
nothing short of a constitutional amendment as provided for under
the Constitution can affect any of the provisions of the Constitution,
including Article 226. The power conferred upon High Courts
under Article 226 of the Constitution is an overriding power entitling
them, under certain conditions and circumstances, to issue writs,
orders and directions to subordinate courts, tribunals and authorities
notwithstanding any rule or law to the contrary.”
25. This Court expressed its agreement with the submissions made
by State of Kerala and held that clause 33 is subject to the overriding
provisions of Article 226 of the Constitution of India.  This Court laid
down following:-
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“Learned counsel for the State of Kerala submits that clause
33 must be read subject to Articles 226 and 32 of the Constitution.
He relies on the well known principle of construction that if a
provision in a statute is capable of two interpretations then that
interpretation should be adopted which will make the provision
valid rather than the one which will make it invalid. He relies on
the words “other law for the time being in force” as positively
indicating that the clause has not the Constitution in contemplation,
for it will be inapt to speak of the Constitution as a “law for the
time being in force”. He-relies on the meaning of the word “law”
appearing in Articles 2, 4, 32(3) and 367(1) of the Constitution
where it must mean law enacted by a legislature. He also relies
on the definition of “Indian law” in Section 3(29) of the General
Clauses Act and submits that the word “law” in clause 33 must
mean a law of the same kind as the Civil Procedure Code of
1908, that is to say, a law made by an appropriate legislature in
exercise of its legislative function and cannot refer to the
Constitution. We find ourselves in agreement with this contention
of learned counsel for the State of Kerala. We are not aware of
any difficulty — and none has been shown to us — in construing
clause 33 as a provision subject to the overriding provisions of
Article 226 of the Constitution and our answer to Question 4 must
be in the negative.”
26. What has been laid down by
Constitution bench of this Court
in above case makes it beyond any doubt that the power under Article
226 of the Constitution overrides any contrary provision in a Statute and
the power of the High Court under Article 226 cannot be taken away or
abridged by any contrary provision in a Statute.
27. Gajendragadkar, C.J. speaking for a Constitution Bench of
this Court in Re: Under Article 143 of the Constitution of India,
AIR 1965 SC 745 held that existence of judicial power in the High
Court under Article 226 and this Court under Article 32 postulate the
existence of a right in the citizen to move the Court otherwise the power
conferred on the High Courts and this Court would be rendered virtually
meaningless.In paragraph 129 following was held:-
“129. If the power of the High Courts under Article 226 and the
authority of this Court under Article 32 are not subject to any
exceptions, then it would be futile to contend that a citizen cannot
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move the High Courts or this Court to invoke their jurisdiction
even in cases where his fundamental rights have been violated.
The existence of judicial power in that behalf must necessarily
and inevitably postulate the existence of a right in the citizen to
move the Court in that behalf; otherwise the power conferred on
the High Courts and this Court would be rendered virtually
meaningless. Let it not be forgotten that the judicial power
conferred on the High Courts and this Court is meant for the
protection of the citizens’ fundamental rights, and so, in the
existence of the said judicial power itself is necessarily involved
the right of the citizen to appeal to the said power in a proper
case.”
28. A Seven Judge Bench in L. Chandra Kumar Vs. Union of
India and Others, (1997) 3 SCC 261 again had occasion to examine
the nature and extent of jurisdiction of the High Court under Article 226.
It was held that power of judicial review under Article 226 and Article
32 of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure. The Constitution Bench
was examining the validity of clause 2(d) of Article 323A and clause
3(d) of Article 323B, which excluded the jurisdiction of the High Court.
Article 323A clause 2(d) provided as under:-
“323A. Administrative tribunals.- (1) Parliament may, by law,
provide for the adjudication or trial by administrative tribunals of
disputes and complaints with respect to recruitment and conditions
of service of persons appointed to public services and posts in
connection with the affairs of the Union or of any State or of any
local or other authority within the territory of India or under the
control of the Government of India or of any corporation owned
or controlled by the Government.
(2) A law made under clause (1) may—
XXXXXXXXXXXXXXXXXXX
(d) exclude the jurisdiction of all courts, except the jurisdiction of
the Supreme Court under article 136, with respect to the disputes or
complaints referred to in clause (1);
XXXXXXXXXXXXXXXX”
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29. The provisions of clause 2(d) of Article 323A and clause 3(d)
of Article 323B were held to be unconstitutional. In paragraph 99,
Constitution Bench laid down following:-
“99. In view of the reasoning adopted by us, we hold that clause
2(d) of Article 323-A and clause 3(d) of Article 323-B, to the
extent they exclude the jurisdiction of the High Courts and the
Supreme Court under Articles 226/227 and 32 of the Constitution,
are unconstitutional. Section 28 of the Act and the “exclusion of
jurisdiction” clauses in all other legislations enacted under the aegis
of Articles 323-A and 323-B would, to the same extent, be
unconstitutional. The jurisdiction conferred upon the High Courts
under Articles 226/227 and upon the Supreme Court under Article
32 of the Constitution is a part of the inviolable basic structure of
our Constitution. While this jurisdiction cannot be ousted, other
courts and Tribunals may perform a supplemental role in
discharging the powers conferred by Articles 226/227 and 32 of
the Constitution………………………..”
30. In Election Commission of India through Secretary Vs.
Ashok Kumar and Others, (2000) 8 SCC 216, a Three Judge Bench
had occasion to consider the jurisdiction of the High Court under Article
226 to entertain a petition and to issue interim direction after
commencement of electoral process. In reference to bar as created by
Article 329 of the Constitution of India, this Court quoted with approval
statement of Halsbury’s Laws of
England, Fourth Edition, Volume 10,
Para 713, in following words:-
“15. The constitutional status of the High Courts and the nature
of the jurisdiction exercised by them came up for the consideration
of this Court in M.V. Elisabeth v. Harwan Investment and
Trading (P) Ltd., 1993 Supp. (2) SCC 433. It was held that the
High Courts in India are superior courts of record. They have
original and appellate jurisdiction. They have inherent and
supplementary powers. Unless expressly or impliedly barred and
subject to the appellate or discretionary jurisdiction of Supreme
Court, the High Courts have unlimited jurisdiction including the
jurisdiction to determine their own powers. The following
statement of law from Halsbury’s Laws of England (4th Edn.,
Vol. 10, para 713) was quoted with approval:
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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“Prima facie, no matter is deemed to be beyond the jurisdiction
of a superior court unless it is expressly shown to be so, while
nothing is within the jurisdiction of an inferior court unless it is
expressly shown on the face of the proceedings that the
particular matter is within the cognisance of the particular
court.”
16. This Court observed that the jurisdiction of courts is carved
out of sovereign power of the State. People of free India are
sovereign and the exercise of judicial power is articulated in the
provisions of the Constitution to be exercised by courts under the
Constitution and the laws thereunder. It cannot be confined to the
provisions of imperial statutes of a bygone age. Access to court
which is an important right vested in every citizen implies the
existence of the power of the Court to render justice according to
law. Where statute is silent and judicial intervention is required,
courts strive to redress grievances according to what is perceived
to be principles of justice, equity and good conscience.
17. That the power of judicial review is a basic structure of
Constitution — is a concept which is no longer in issue.”
31. This Court laid down in the above case that arbitrariness and
malafide destroy the validity and efficacy of all orders passed by public
authorities. This Court in the above case held that the jurisdiction
of Article 226 is not even barred in election matter though it has
to
be sparingly exercised.This Court held that provisions of the
Constitution and the Act read together do not totally exclude the right of
a citizen to approach the court so as to have the wrong done remedied
by invoking the judicial forum.  In paragraph 30, following was laid down:-
“30. To what extent Article 329(b) has an overriding effect on
Article 226 of the Constitution? The two Constitution Benches
have held that Representation of the People Act, 1951 provides
for only one remedy; that remedy being by an election petition to
be presented after the election is over and there is no remedy
provided at any intermediate stage. The non obstante clause with
which Article 329 opens, pushes out Article 226 where the dispute
takes the form of calling in question an election (see para 25 of
Mohinder Singh Gill case, (1978) 1 SCC 405). The provisions
of the Constitution and the Act read together do not totally exclude
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the right of a citizen to approach the court so as to have the wrong
done remedied by invoking the judicial forum; nevertheless the
lesson is that the election rights and remedies are statutory, ignore
the trifles even if there are irregularities or illegalities, and knock
the doors of the courts when the election proceedings in question
are over. Two-pronged attack on anything done during the election
proceedings is to be avoided — one during the course of the
proceedings and the other at its termination, for such two-pronged
attack, if allowed, would unduly protract or obstruct the functioning
of democracy.”
32. We may notice another Three Judge Bench judgment of this
Court in Asian Resurfacing of Road Agency Private Limited and
Another Vs. Central Bureau of Investigation, (2018) 16 SCC 299.
In the above case, jurisdiction of the High Court under Article 226 came
to be considered in light of provisions of Section 19(3)(c) of the Prevention
of Corruption Act, 1988. We may first notice Section 19(3)(c) of the
Prevention of Corruption Act, which is to the following effect:-
“19. Previous sanction necessary for prosecution.—
XXXXXXXXXXXXXXXX
(3) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973—
(c) no court shall stay the proceedings under this Act on any other
ground and no court shall exercise the powers of revision in relation
to any interlocutory order passed in inquiry, trial, appeal or other
proceedings.”
33. There being
difference of opinion amongst different Benches
of this Court as well as of all the High Courts, a reference was made to
a Three Judge Bench of the Delhi High Court. In the above Three Judge
Bench, High Court had held that even if a petition Under Section 482 of
the Code of Criminal Procedure or a writ petition Under Article 227 of
the Constitution of India is entertained by the High Court under no
circumstances an order of stay should be passed regard being had to the
prohibition contained in Section 19(3)(c) of the 1988 Act. Justice Adarsh
Kumar Goel speaking for this Court held that despite Section 19(1)(c),
the High Court in an appropriate case can grant stay and laid down
following in paragraph 28:-
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[ASHOK BHUSHAN, J.]
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“28. We have thus no hesitation in concluding that the High Court
has jurisdiction in an appropriate case to consider the challenge
against an order framing charge and also to grant stay but how
such power is to be exercised and when stay ought to be granted
needs to be considered further.”
34. Justice R.F. Nariman delivered a concurring opinion and in
his judgment after extracting Section 19 of Prevention of Corruption
Act, 1988 held that Section 19(3)(c)cannot be read as a ban on the
maintainability of a petition before a High Court. In paragraph 52 and
54, following has been laid down:-
“52. The question as to whether the inherent power of a High
Court would be available to stay a trial under the Act necessarily
leads us to an inquiry as to whether such inherent power sounds
in constitutional, as opposed to statutory law. First and foremost,
it must be appreciated that the High Courts are established by the
Constitution and are courts of record which will have all powers
of such courts, including the power to punish contempt of
themselves (see Article 215). The High Court, being a superior
court of record, is entitled to consider questions regarding its own
jurisdiction when raised before it. In an instructive passage by a
Constitution Bench of this Court in Powers, Privileges and
Immunities of State Legislatures, In re, Special Reference No.
1 of 1964, Gajendragadkar, C.J. held: (SCR p. 499 : AIR p. 789,
para
138)
“138. Besides, in the case of a superior Court of Record, it is
for the court to consider whether any matter falls within its
jurisdiction or not. Unlike a Court of limited jurisdiction, the
superior court is entitled to determine for itself questions about
its own jurisdiction. “Prima facie”, says Halsbury, ‘no matter
is deemed to be beyond the jurisdiction of a superior court
unless it is expressly shown to be so, while nothing is within
the jurisdiction of an inferior court unless it is expressly shown
on the face of the proceedings that the particular matter is
within the cognizance of the particular court’ [Halsbury’s Laws
of England, Vol. 9, p. 349].”
54. It is thus clear that the inherent power of a court set up by the
Constitution is a power that inheres in such court because it is a
superior court of record, and not because it is conferred by the
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Code of Criminal Procedure. This is a power vested by the
Constitution itself, inter alia, under Article 215 as aforestated. Also,
as such High Courts have the power, nay, the duty to protect the
fundamental rights of citizens under Article 226 of the Constitution,
the inherent power to do justice in cases involving the liberty of
the citizen would also sound in Article 21 of the Constitution. This
being the constitutional position, it is clear that Section 19(3)(c)
cannot be read as a ban on the maintainability of a petition filed
before the High Court under Section 482 of the Code of Criminal
Procedure, the non obstante clause in Section 19(3) applying only
to the Code of Criminal Procedure……………”
35. The Delhi High Court’s judgment’s conclusion in paragraph
36(d) was set aside. The Delhi High Court in paragraph 36(d), which
judgment was impugned before this Court had laid down:-
“36. In view of our aforesaid discussion, we proceed to answer
the reference on following terms:
(d) Even if a petition under Section 482 of the Code of Criminal
Procedure or a writ petition under Article 227 of the Constitution
of India is entertained by the High Court under no circumstances
an order of stay should be passed regard being had to the
prohibition contained in Section 19(3)(c) of the 1988 Act.”
36. Justice Nariman ultimately after referring the judgment of
L. Chandra Kumar (supra) has set aside the conclusion of Delhi High
Court in paragraph 36(d). The above
judgment, thus, laid down that despite
restraint in Section 19(3)(c) of Prevention of Corruption Act, the
jurisdiction of the High Court to issue an interim order is not precluded.
This Court in the above case has dealt with a situation when a statutory
provision, i.e., Section 19(3)(c) of Prevention of Corruption Act creates
a specific bar in passing a stay order. When despite the aforesaid
statutory bar, High Court was held to have jurisdiction to pass an interim
order, in the present case, we are concerned in a statutory scheme where
there is no express or implied bar in passing an interim order by the High
Court.
37. As per Section 5B, a candidate belonging to reserved category,
who has made an application to the Scrutiny Committee forissuance of
Validity Certificate prior to date of filing of nomination is obliged to submit
the certificate within six months from the date of election(now substituted
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by twelve months), failing which his election shall be deemed to have
been terminated retrospectively. The second proviso to Section 5B creates
a deeming fiction, which operates when a person failed to produce the
Validity Certificate within a period of six months/twelve months from
the date of his election. The present is a case where before expiry of
period of six months from the date of election, i.e., 23.02.2017, the Caste
Scrutiny Committee has rejected the claim of respondent and a writ
petition was filed by the respondent before expiry of period of six months
and the High Court also granted an interim order on 18.08.2017, i.e.,
within a period of six months, after expiry of which the deeming fiction
was to come into existence. The interim order was passed by the High
Court before a deeming fiction of termination of election retrospectively
came into operation. The consequence of non-filing of Validity Certificate
within a period of six months was postponed rather interdicted by the
interim order of the High Court. The jurisdiction of the High Court to
pass the above interim order dated 18.08.2017 is questioned by the
appellants. Caste Scrutiny Committee, which is a statutory authority
constituted under State enactment to verify the caste claimed by citizens,
in event, illegally rejects the claim of citizen, does the citizen has no right
to seek judicial remedy? Can the illegal rejection of caste claim of a
citizen is a fait accompli after expiry of period of six months?  When a
citizen has right to judicial review against any decision of statutory
authority, the High Court in exercise of judicial review had every
jurisdiction to maintain the status quo so as to by lapse of time, the petition
may not be infructuous. The interim order can always be passed by a
High Court in exercise of writ jurisdiction to maintain the status quo so
that at the time of final decision of the writ petition, the relief may not
become infructuous.
38. We are conscious of the fact that the High Court has to
exercise jurisdiction under Article 226 with due regard to the legislative
intent manifested by provisions of enactment. A Nine Judges Constitution
Bench in Mafatlal Industries Ltd. and Others Vs. Union of India
and Others, (1997) 5 SCC 536 had laid down such preposition in
paragraph 108 in following words:-
“108.
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(x)………………………So far as the jurisdiction of the High
Courts under Article 226 of the Constitution — or of this Court
under Article 32 — is concerned, it remains unaffected by the
provisions of the Act. Even so, the Court would, while exercising
the jurisdiction under the said articles, have due regard to the
legislative intent manifested by the provisions of the Act. The writ
petition would naturally be considered and disposed of in the light
of and in accordance with the provisions of Section 11-B. This is
for the reason that the power under Article 226 has to be exercised
to effectuate the regime of law and not for abrogating it. Even
while acting in exercise of the said constitutional power, the High
Court cannot ignore the law nor can it override it. The power
under Article 226 is conceived to serve the ends of law and not to
transgress them.”
39. Learned counsel for the appellant has laid great emphasis on
the Full Bench Judgment of the Bombay High Court in Anant H.
Ulahalkar and Ors. (supra). The three questions, which were referred
before the Full Bench were as follows:-
“2. The genesis of this reference is the order dated 11 August
2015 made in the present Writ Petition by the Division Bench
(Coram: Naresh H. Patil & V.L. Achliya, JJ). This order takes
cognizance of the aforesaid conflict and opines that the matter be
placed before the Hon’ble Chief Justice to consider whether
reference needs to be made to a Larger Bench. The order also
notes that
the following questions of law arise :
“(i) Whether the time limit prescribed under section 9-A of the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965, for submission of caste validity
certificate by elected Councillor is mandatory in nature?
(ii) Whether the failure on the part of person elected as Councillor
to produce the caste validity certificate within the period of six
months from the date on which he was declared elected,
irrespective of facts and circumstances and eventuality beyond
the control of such person to produce validity certificate would
automatically result into termination of his election with
retrospective effect?
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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(iii) Whether the validation of caste claim of elected Councillor by
the Scrutiny Committee beyond the prescribed period would
automatically result into termination of such Councillor with
retrospective operation?”
40. The Full Bench in the above case was considering Section 9-
A of Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965, which is pari materia to Section 5B of Mumbai
Municipal Corporations Act, 1888. The High Court after elaborate
consideration has held that requirement of submitting the caste certificate
within a period of six months is a mandatory requirement. In paragraphs
98, 99 and 100, following was laid down:-
“98. In the present case also the legislature in enacting Section 9-
A has provided for a statutory fiction, which is evident from the
use of expression “his election shall be deemed to have been
terminated retrospectively and he shall be disqualified being a
Councillor”. The statutory fiction must be allowed to have its full
play. No other provision or reason has been pointed out to take
the view that consequences prescribed under second proviso to
Section 9-A are not automatic or would require any further
adjudication once it is established that the person elected has failed
to produce the Validity Certificate within a stipulated period of six
months from the date of his election.
99. The validation of caste claim of the elected Councillor by the
Scrutiny
Committee beyond the prescribed period would have no
effect upon the statutory consequences prescribed under the
second proviso to Section 9-A i.e. deemed retrospective
termination of the election of such Councillor and his disqualification
for being a Councillor. The subsequent validation or issue of the
Validity Certificate will therefore be irrelevant for the purpose of
restoration of the Councillor’s election but, such validation will
obviously entitle him to contest the election to be held on account
of termination of his election and the consequent vacancy caused
thereby.
100. In the result, we hold that the time limit of six months
prescribed in the two provisos to Section 9-A of the said Act,
within which an elected person is required to produce the Validity
Certificate from the Scrutiny Committee is mandatory.
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Further, in terms of second proviso to Section 9-A if a person
fails to produce Validity Certificate within a period of six months
from the date on which he is elected, his election shall be deemed
to have been terminated retrospectively and he shall be disqualified
for being a Councillor.
Such retrospective termination of his election and
disqualification for being a Councillor would be automatic and
validation of his caste claim after the stipulated period would not
result in restoration of his election.
The questions raised, stand answered accordingly.”
41. The judgment of the Full Bench of Bombay High Court came
for consideration before this Court in Shankar S/o Raghunath Devre
(Patil) Vs. State of Maharashtra and Others, (2019) 3 SCC 220.
This Court after noticing the above provision upheld the decision of the
Full Bench of the Bombay High Court that Statute engrafts a mandatory
requirement in law. In paragraphs 7, 8 and 9, this Court laid down
following:-
“7. A proviso to the aforesaid main provision of the statute was
brought in subsequently which permitted a candidate to file his/
her nomination even in the absence of the validity certificate
provided he/she encloses with the nomination a true copy of the
application filed by him/her before the Scrutiny Committee and
an undertaking that he/she shall submit, within a period of six
months from the date of his/her election, the validity certificate
issued by the Scrutiny Committee.
8. There is a
second proviso which contemplates that on the failure
of the person(s) concerned to produce the validity certificate within
the time-frame stipulated his election “shall be deemed to have
been terminated retrospectively and he shall be disqualified
for being a Councillor”.
9. We have read and considered the very elaborate reasoning
adopted by the Full Bench of the High Court in coming to its
conclusions that the aforesaid provisions of the statute engrafts a
mandatory requirement in law. The High Court, in our considered
view, very rightly came to the aforesaid conclusion along with the
further finding that equities in individual case(s) would not be a
good ground to hold the provision to be directory. In fact, the High
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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Court has supported its decision by weighty reasons to hold that
reading the provisions to be directory would virtually amount to
rendering the same to be nugatory.
42. This Court also rejected the submission that hardship in few
cases would not be a good ground to hold the provision to be directory.
There can be no dispute to the preposition as laid down by this Court
that requirement of submitting the Caste certificate within a period of
six months (now twelve months) under proviso to Section 5B is a
mandatory requirement and consequences of non-submission within the
period prescribed is automatic retrospective termination of the election.
The above pronouncement of law by Three Judge Bench is a binding
precedent. The requirement of submission of certificate is a mandatory
requirement failing which deemed termination of election automatically
shall ensue. We, in the present case, are not to take any other view of
the law as laid down in the above case. However, the point which has
arisen for determination in these appeals is different i.e. as to whether
High Court in exercise of jurisdiction under Article 226 can interdict the
above consequences envisaged by Section 5B by passing an interim or
final judgment. Before the Full Bench of the Bombay High Court as
well as the Three Judge Bench of this Court in Shankar S/o Raghunath
Devre (Patil) (supra), the issue as to whether the High Court has
jurisdiction under
Article 226 to stay the consequences of deeming
provision was neither considered nor answered. We may clarify that in
event there are no orders staying the consequences of deeming fiction
as envisaged in proviso to Section 5B, the election shall automatically
stand terminated retrospectively but in the present case in the facts of
both the appeals, the consequences of deeming fiction as contained in
second proviso to Section 5B were stayed/interdicted by order of the
High Court, hence the retrospective termination could not take place.
43. Shri Sudhanshu S. Choudhari, learned counsel for the appellant
has also submitted that High Court was not empowered to continue the
interim relief granted to the writ petitioners beyond a period of one year
from the date of election as per the statutory scheme under Section 5B.
It is true that requirement of submission of Caste Validity Certificate
within a period of one year is statutory requirement but in the facts of
the case before us before the expiry of the period, Caste Scrutiny
Committee has illegally rejected the claim necessitating filing of writ
petition by aggrieved persons in which writ petition the interim relief
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was granted by the High Court. The power of the High Court to grant
an interim relief in appropriate case cannot be held to be limited only for
period of one year, which was period envisaged in Section 5B for
submission of the Caste Validity Certificate. No such fetter on the power
of the High Court can be read by virtue of provision of Section 5B.
44. The reliance of learned counsel for the appellant on the
judgment of this Court in the case of The State of Orissa Vs. Madan
Gopal Rungta, 1952 SCR 28: AIR 1952 SC 12 that interim relief
can be granted only in aid of and as ancillary to the main relief, does not
support the case of the appellant.  In the present case, the interim relief
was granted by the High Court, which was in aid of and ancillary to the
main relief, which could be granted to the appellant at the time of
determination of his rights.
45. Shri Choudhari further submits that this Court in State of U.P.
and Others Vs. Harish Chandra and Others, (1996) 9 SCC 309
has held that there can be no mandamus against a statute, hence, the
High Court could not have issued a writ of mandamus because there
was an interim order in favour of respondent No.1. In the final judgment
passed by the High Court dated 02.04.2019, there is direction of the
High Court to continue the respondent in their elected office. The tenure
of the office for which the respondents were elected had not come to an
end, hence, present was not a case of issue any direction to
continue the
respondent beyond the period of tenure. The interim order passed by the
High Court was in exercise of judicial review by the High Court to protect
the rights of the respondents.
46. Learned counsel for the appellant has also relied on judgment
of this Court in Bihar Public Service Commission and Another Vs.
Dr. Shiv Jatan Thakur and Others, (1994) Supp. 3 SCC 220. This
Court in the above case in paragraph 38 has laid down following:-
“38. …………….It is true that Article 226 of the Constitution
empowers the High Court to exercise its discretionary jurisdiction
to issue directions, orders or writs, including writs in the nature of
habeas corpus, certiorari, quo warranto and mandamus or any of
them for the enforcement of the rights conferred under the
Constitution or for an other purpose, but such discretion to issue
directions or writs or orders conferred on the High Court under
Article 226 being a judicial discretion to be exercised on the basis
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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of well-established judicial norms, could not have been used by
the High Court to make the said interim orders which could not
have in any way helped or aided the Court in granting the main
relief sought in the writ petition………………………”
47. From the above preposition laid down by this Court, it is clear
that such interim direction can be passed by the High Court under Article
226, which could have helped or aided the Court in granting main relief
sought in the writ petition. In the present case, the decision of the Caste
Scrutiny Committee having been challenged by the writ petitioners and
the High Court finding prima facie substance in the submissions granted
interim order, which ultimately fructified in final order setting aside the
decision of the Caste Scrutiny Committee.  The interim order, thus, passed
by the High Court was in aid of the main relief, which was granted by
the High Court.
48. The learned counsel for the appellant has also referred to
Land Acquisition Act, 1984 and submit that there is no provision under
Section 5B similar to Explanation to Section 11A of the Land Acquisition
Act, 1984, which exclude the period of stay granted by the Court in
computing the period mentioned in the main provision. The provision of
Section 11A of the Land Acquisition Act, which provides for the period
within which an award shall be made contains a legislative scheme in
reference to the Land Acquisition Act, 1894, the
Explanation to Section
11A providing that in computing the period of two years referred to in
Section 11A, the period during which any action or proceeding to be
taken in pursuance of said declaration is stated by an order of the Court
shall be excluded.  Section 11A is a legislative scheme in reference to
Land Acquisition Act, which provision is entirely different and does not
lend any support to the submission made by the learned counsel for the
appellant.
49. Learned counsel for the appellant has relied on judgment of
this Court in Padma Sundara Rao (Dead) and Others Vs. State of
T.N. and Others, (2002) 3 SCC 533 for the preposition that legislative
casus omissus cannot be supplied by judicial interpretative process. This
Court in the above case laid down following in paragraph 14:-
“14. While interpreting a provision the court only interprets the
law and cannot legislate it. If a provision of law is misused and
subjected to the abuse of process of law, it is for the legislature to
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amend, modify or repeal it, if deemed necessary. (See Rishabh
Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5
SCC 515) The legislative casus omissus cannot be supplied by
judicial interpretative process. Language of Section 6(1) is plain
and unambiguous. There is no scope for reading something into it,
as was done in Narasimhaiah case, (1996) 3 SCC 88. In
Nanjudaiah case, (1996) 10 SCC 619 the period was further
stretched to have the time period run from date of service of the
High Court’s order. Such a view cannot be reconciled with the
language of Section 6(1). If the view is accepted it would mean
that a case can be covered by not only clause (i) and/or clause
(ii) of the proviso to Section 6(1), but also by a non-prescribed
period. Same can never be the legislative intent.”
50. In the above case, this Court had occasion to consider Section
6 of Land Acquisition Act. In the above case, Notification under Section
4 was issued before the commencement of Land Acquisition
(Amendment) Act, 1984. The Notification under Section 6(1) was issued
within the period of three years prescribed under proviso to Section 4 as
it existed then. This Court held that the period prescribed is pre-emptive
in nature and cannot be stretched. The observation as extracted above
in paragraph 14 was made in the above context. The above judgment
has no application in the issues, which have come for consideration in
the present case. Present is not a case of any
causes omissus, which is
sought to be filled up by any kind of judicial interpretation.
51. Shri Choudhari has also placed reliance on K. Prabhakaran
Vs. P. Jayarajan, (2005) 1 SCC 754 for the preposition that subsequent
decision of setting aside the conviction would not have the effect of
wiping out the disqualification, which did exist on the focal point dates.
The decisive dates are the dates of election and the date of scrutiny of
nomination and not the date of judgment in an election petition or in
appeal there against. There can be no dispute to the preposition as laid
down by this Court in K. Prabhakaran (supra). Present is not a case
of any kind of disqualification of the respondent at the time of holding
election or on the date of scrutiny of nomination. The above judgment
has no application at all. We, thus, do not find any substance in the
submission of the learned counsel for the appellant that High Court could
not have passed an interim order in the writ petitions filed by the
respondents, which may have effect of the respondents’ continuance
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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after expiry of period of six months by which date, they had to file their
Caste Validity Certificate. There is no fetter in the jurisdiction of the
High Court in granting an interim order in a case where caste claim by
respondents was illegally rejected before the expiry of period of six
months and the High Court granted the interim order before the expiry
of period of six months. In the facts of the present case, the deeming
fiction of retrospective termination of the election could not come in
operation due to the interim order passed by the High Court, hence deeming
fiction under Section 5B second proviso never came into existence to
retrospectively terminate the election of the respondent. We have already
held that the submission of the appellant that interim order of the High
Court could not have been allowed to continue beyond the period of six
months/one year cannot be accepted. No such fetter can be read in the
jurisdiction of the High court or in the interim order passed by the High
Court in exercise of the jurisdiction under Article 226 nor any kind of
fetter can be read from any State enactment. In view of the foregoing
discussions, we arrive at following conclusions:-
(i)
The power of judicial review vested in the High Courts
under Article 226 and this Court under Article 32 of the
Constitution is an integral and essential feature of the
Constitution and is basic structure of our Constitution. The
jurisdiction under Article 226 is original, extraordinary and
discretionary. The look out of the High Court is to see
whether injustice has resulted on account of any decision
of a constitutional authority, a tribunal, a statutory authority
or an authority within meaning of Article 12 of the
Constitution.
(ii)
The Courts are guardians of the rights and liberties of the
citizen and they shall fail in their responsibility if they
abdicate their solemn duty towards the citizens. The scope
of Article 226 is very wide and can be used to remedy
injustice wherever it is found.
(iii)
The power under Article 226 of the Constitution overrides
any contrary provision in a Statute and the power of the
High Court under Article 226 cannot be taken away or
abridged by any contrary provision in a Statute.
(iv)
When a citizen has right to judicial review against any
decision of statutory authority, the High Court in exercise
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of judicial review had every jurisdiction to maintain the status
quo so as to by lapse of time, the petition may not be
infructuous. The interim order can always be passed by a
High Court in exercise of writ jurisdiction to maintain the
status quo in aid of the relief claimed so that at the time of
final decision of the writ petition, the relief may not become
infructuous.
(v)
It is true that requirement of submission of Caste Validity
Certificate within a period of one year under Section 5B of
Mumbai Municipal Corporation Act is mandatory
requirement but in the facts of the case before us before
the expiry of the period of six month, the Caste Scrutiny
Committee had illegally rejected the claim necessitating filing
of writ petition by aggrieved persons in which writ petition
the interim relief was granted by the High Court. The power
of the High Court to grant an interim relief in appropriate
case cannot be held to be limited only for a period of one
year, which was period envisaged in Section 5B for
submission of the Caste Validity Certificate. No such fetter
on the power of the High Court can be read by virtue of
provision of Section 5B.
(vi)
There is no fetter in the jurisdiction of the High Court in
granting an interim order in a case where caste claim of
the respondents was illegally rejected before the expiry of
period of six months and the High Court granted the interim
order before the expiry of the period of six months, as then
prescribed.
(vii)
In the facts of the present case, the deeming fiction under
Section 5B of retrospective termination of the election could
not come in operation due to the interim order passed by
the High Court.
52. We, for the discussion and conclusions as above, answer the
points formulated in following manner: -
(i)
Section 5B of the Mumbai Municipal Corporation Act does
not oust the jurisdiction of High Court under Article 226 of
the Constitution.
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
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(ii)
The High Court in exercise of jurisdiction under Article 226
of the Constitution can pass an order interdicting the legal
fiction as contemplated under second proviso to Section
5B, provided the legal fiction had not come into operation.
(iii)
The interim order dated 18.08.2017 in Writ Petition No.2269
of 2017 as well as the impugned final judgment dated
02.04.2019 were not beyond the jurisdiction of High Court
under Article 226 of the Constitution.
(iv)
The interim order dated 22.08.2017 and final judgement
dated 02.04.2019 in Writ Petition No.145 of 2018 were not
the orders beyond the jurisdiction of High Court under
Article 226 of the Constitution.
53. We do not find any error in the impugned judgment of the
High Court insofar as it continues the respondent No.1 in Civil Appeal
Nos. 1429-1430 of 2020 till the decision of Scrutiny Committee is taken
consequent to the setting aside of the report of the Scrutiny Committee
by the impugned judgment. Insofar as the case of the respondent in Civil
Appeal No. 1431 of 2020 is concerned, the High Court by the impugned
judgment has not only set aside the order of the Scrutiny Committee but
declared the respondent to be belonging to backward class, i.e., Koyari.
54. In the counter affidavit filed by the respondent No.1 in Civil
Appeal Nos. 1429-1430 of 2020, the respondent No.1 has brought on
record the order dated 30.09.2019 of the Caste Scrutiny Committee by
which the
Caste Scrutiny Committee has upheld the claim of respondent
No.1 to belong to backward class.
55. In view of the foregoing discussions and conclusions, we do
not find any error in the impugned judgment of the High Court dated
02.04.2019. There is no merit in the appeals. All the appeals are dismissed.
Ankit Gyan
Appeals dismissed.