Benedict Denis Kinny vs Tulip Brian Miranda on 19 March, 2020


Supreme Court of India

Benedict Denis Kinny vs Tulip Brian Miranda on 19 March, 2020

Author: Ashok Bhushan

Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna

                                                                              REPORTABLE

                                    IN THE SUPREME COURT OF INDIA
                                     CIVIL APPELLATE JURISDICTION

                               CIVIL APPEAL NOS.1429-1430/2020
                      (arising out of SLP (C) Nos. 13703-13704 of 2019)

          BENEDICT DENIS KINNY                                       ...APPELLANT(S)
                                                   VERSUS

          TULIP BRIAN MIRANDA & ORS.                                 ...RESPONDENT(S)


                                                    WITH
                                       CIVIL APPEAL NO.1431/2020
                              (arising out of SLP (C) No. 19732 of 2019)

          SMT. PRACHI PRASAD PARAB                                   ...APPELLANT(S)
                                  VERSUS

          THE STATE OF MAHARASHTRA & ORS.                            ...RESPONDENT(S)



                                               J U D G M E N T

ASHOK BHUSHAN, J.

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
Signature Not Verified

interdicting a legal fiction engrafted
Digitally signed by
MAHABIR SINGH
in a State
Date: 2020.03.19
18:37:13 IST
Reason:

enactment.

1

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

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

2
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.

3

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 dated

02.05.2019. Both the orders dated 02.04.2019

4
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.

5

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

6
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 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

7
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

8
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 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:-

9

(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

                              10
       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

11
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 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

12
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
(Vimukta Jatis), 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

13
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,-

(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:-

14
“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”.”.

14. Two more provisions of Maharashtra Act No. LXV of

2018 needs to be noted, which are contained in Chapter

15
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.”

16

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 18.08.2017

Bombay 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:-

“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

17
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
18
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
23rd February 2017. This Court, by interim
order dated 19th August 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 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
19
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

20
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 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

21
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

22
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 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
23
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
24
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:-

“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
25
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
26
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:-

“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
27
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 move the High
28
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:-

29
“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”

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

30
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
31
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:

“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
32
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
33
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; 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

34
(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:-

“28. We have thus no hesitation in
concluding that the High Court has
jurisdiction in an appropriate case to

35
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
36
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 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……………”

37

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

38
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 for issuance 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 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

39
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

40
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. XXXXXXXXXXXXXX

XXXXXXXXXXXXXX

(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

41
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?

42

(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?

(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
43
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.

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
44
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.

45

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 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
46
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

47
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 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

48
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

49
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 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………………………”

50

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

51
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

52
process of law, it is for the legislature
to 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
53
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

54
may have effect of the respondents’ continuance 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.

55
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.

56

(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

57
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

58
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.

(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

59
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

60
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.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( NAVIN SINHA )
New Delhi,
March 19, 2020.

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