BENEDICT DENIS KINNY versus TULIP BRIAN MIRANDA & ORS.

[2020] 8 S.C.R. 1080

[2020] 8 S.C.R.

ABENEDICT DENIS KINNY

TULIP BRIAN MIRANDA & ORS.

(Civil Appeal Nos.1429-1430/2020)

BMARCH 19, 2020

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Constitution of India – Art. 226 – Mumbai MunicipalCorporation Act, 1888 – s. 5B – In one civil appeal, the respondentand appellant contested the election on the seat of counsellor inCMumbai Municipal Corporation reserved for backward class citizens– s.5B of the 1888 Act required the candidate to submit caste validitycertificate on the date of filing nomination paper – It is provided inthe second proviso to s.5B that if person fails to produce thevalidity certificate within period of six months (now twelve months)Dfrom the date of election, the election shall be deemed to have beenterminated retrospectively and he shall be disqualified for being aCounsellor – On 23.02.2017 respondent was declared elected –The Scrutiny Committee by its order dated 14.08.2017 refused togrant caste validity certificate in favour of the respondent – Therespondent filed writ petition challenging the order of the ScrutinyECommittee dated 14.08.2017 – The High Court passed an interimorder dated 18.08.2017 in favour of respondent by staying the orderdated 14.08.2017 and directed not to take any action ofdisqualification against the respondent till the pendency of the writpetition – Thereafter, the High Court quashed the order of theFScrutiny Committee and remanded the matter for fresh consideration– In another civil appeal, both the appellant and respondent no.5contested election to Mumbai Municipal Corporation ward reservedfor backward class citizen – The respondent no.5 was declaredelected on 23.02.2017 – The Scrutiny Committee rejected the claimof the respondent no.5 that she belongs to ‘Koyari caste’ – TheGrespondent no. 5 filed writ petition before the High Court – TheHigh Court passed interim order dated 22.08.2017 directing not totake any coercive action against the respondent no. 5 – Later, theHigh Court set aside the order passed by the Scrutiny Committeeand declared that the respondent no.5 belonged to the ‘Koyari caste’H

– Whether the interim orders passed by the High Court in both thecivil appeals, directing not to take any coercive action against thewrit petitioners and allowing writ petitioners to continue on theirseats, were the orders beyond the jurisdiction of the High Courtu/Art. 226 and could not have been passed in view of the statutoryscheme of s. 5B – Held: The power u/Art. 226 of the Constitutionoverrides any contrary provision in statute and the power of theHigh Court u/Art. 226 cannot be taken away or abridged by anycontrary provision in statute – When citizen has right to judicialreview against any decision of statutory authority, the High Courtin exercise of judicial review had every jurisdiction to maintain thestatus quo so as to by lapse of time, the petition may not beinfructuous – The interim order can always be passed by HighCourt in exercise of writ jurisdiction to maintain the status quo inaid of the relief claimed so that at the time of final decision of thewrit petition, the relief may not become infructuous – Further, s.5Bof the Mumbai Municipal Corporation Act does not oust thejurisdiction of High Court u/Art.226 of the Constitution – There isno fetter in the jurisdiction of the High Court in granting an interimorder in case where caste claim of the respondents was illegallyrejected before the expiry of period of six months and the HighCourt granted the interim order before the expiry of the period ofsix months, as then prescribed – In the instant case, the deemingfiction under s.5B of retrospective termination of the election couldnot come in operation due to the interim order passed by the HighCourt – The interim orders passed by the High Court were not beyondthe 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 Article226 of the Constitution of India is ousted due to statutory schemeof Section 5B of the Mumbai Municipal Corporation Act?

(ii) Whether High Court had no jurisdiction to pass aninterim or final order, the effect of which is to interdict the statutoryfiction under Section 5B to the effect that in event the CasteScrutiny Certificate is not submitted within six months (now twelvemonths) from the date of election, the election shall be deemed

ABC

Ato have been terminated retrospectively and the candidate shallbe disqualified for being Councillor?

(iii) Whether the interim order dated 18.08.2017 in WritPetition No.2269 of 2017 staying the order dated 14.08.2017 ofthe Caste Scrutiny Committee with direction to respondent Nos.B2 to 4 not to take any action of disqualification as well as the finaljudgment dated 02.04.2019 remanding the matter to the CasteScrutiny Committee during which writ petitioner was held to beentitled to continue, were the orders beyond jurisdiction of theHigh Court under Article 226 and could not have been passed inview of the Statutory Scheme of Section 5B?C

(iv) Whether the interim order of the High Court dated22.08.2017 passed in Writ Petition No. 145 of 2018 directing therespondents not to take any coercive action against the writpetitioner on the basis of the Caste Scrutiny Committee’s orderas well as the final judgment of the High Court dated 02.04.2019Dallowing the writ petition and holding that writ petitioner wasentitled to continue on her seat, were the orders beyondjurisdiction of the High Court under Article 226 and could nothave been passed in view of the Statutory Scheme delineated inSection 5B? [Para 10][1090-B-G]

2. In the facts of the present case, the deeming fiction ofretrospective termination of the election could not come inoperation due to the interim order passed by the High Court,hence deeming fiction under Section 5B second proviso nevercame into existence to retrospectively terminate the election ofFthe respondent. The submission of the appellant that interimorder of the High Court could not have been allowed to continuebeyond the period of six months/one year cannot be accepted.No such fetter can be read in the jurisdiction of the High court orin the interim order passed by the High Court in exercise of thejurisdiction under Article 226 nor any kind of fetter can be readGfrom 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 Courtsunder Article 226 and this Court under Article 32 of theConstitution is an integral and essential feature of theH

Constitution and is basic structure of our Constitution. Thejurisdiction under Article 226 is original, extraordinary anddiscretionary. The look out of the High Court is to see whetherinjustice has resulted on account of any decision of constitutionalauthority, tribunal, statutory authority or an authority withinmeaning of Article 12 of the Constitution.

(ii) The Courts are guardians of the rights and liberties ofthe citizen and they shall fail in their responsibility if they abdicatetheir solemn duty towards the citizens. The scope of Article 226is very wide and can be used to remedy injustice wherever it isfound.

(iii) The power under Article 226 of the Constitutionoverrides any contrary provision in Statute and the power ofthe High Court under Article 226 cannot be taken away or abridgedby any contrary provision in Statute.

(iv) When citizen has right to judicial review against anydecision of statutory authority, the High Court in exercise ofjudicial review had every jurisdiction to maintain the status quoso as to by lapse of time, the petition may not be infructuous.The interim order can always be passed by High Court inexercise of writ jurisdiction to maintain the status quo in aid ofthe relief claimed so that at the time of final decision of the writpetition, the relief may not become infructuous.

(v) It is true that requirement of submission of Caste ValidityCertificate within period of one year under Section 5B of MumbaiMunicipal Corporation Act is mandatory requirement but in thefacts of the case before this Court before the expiry of the periodof six month, the Caste Scrutiny Committee had illegally rejectedthe claim necessitating filing of writ petition by aggrieved personsin which writ petition the interim relief was granted by the HighCourt. The power of the High Court to grant an interim relief inappropriate case cannot be held to be limited only for period ofone year, which was period envisaged in Section 5B for submissionof the Caste Validity Certificate. No such fetter on the power ofthe High Court can be read by virtue of provision of Section 5B.

(vi) There is no fetter in the jurisdiction of the High Courtin granting an interim order in case where caste claim of the

Arespondents was illegally rejected before the expiry of period ofsix months and the High Court granted the interim order beforethe expiry of the period of six months, as then prescribed.

(vii) In the facts of the present case, the deeming fictionunder Section 5B of retrospective termination of the electionBcould not come in operation due to the interim order passed bythe 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 ActCdoes not oust the jurisdiction of High Court under Article 226 ofthe Constitution.

(ii) The High Court in exercise of jurisdiction under Article226 of the Constitution can pass an order interdicting the legalfiction as contemplated under second proviso to Section 5B,Dprovided the legal fiction had not come into operation.

(iii) The interim order dated 18.08.2017 in Writ PetitionNo.2269 of 2017 as well as the impugned final judgment dated02.04.2019 were not beyond the jurisdiction of High Court underArticle 226 of the Constitution.E

(iv) The interim order dated 22.08.2017 and final judgementdated 02.04.2019 in Writ Petition No.145 of 2018 were not theorders beyond the jurisdiction of High Court under Article 226of the Constitution. [Para 52][1115-G-H; 1116-A-C]

FIn re The Kerala Education Bill, 1957, AIR 1958 SC956 : [1959] SCR 995; Mafatlal Industries Ltd. andOthers v. Union of India and Others, (1997) 5 SCC536 : [1996] 10 Suppl. SCR 585 – followed.

Sangram Singh v. Election Tribunal Kotah and Another,GAIR 1955 S.C. 425 : [1955] SCR 1; Re: Under Article143 of the Constitution of India, AIR 1965 SC 745 :[1965] SCR 413 ; L. Chandra Kumar v. Union of Indiaand Others, (1997) 3 SCC 261 : [1997] 2 SCR 1186;Election Commission of India through Secretary v. Ashok

Kumar and Others, (2000) 8 SCC 216 : [2000] 3 Suppl.SCR 34; Asian Resurfacing of Road Agency PrivateLimited 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 ofMaharashtra and Others, (2019) 3 SCC 220; The Stateof Orissa v. Madan Gopal Rungta, [1952] SCR 28: AIR1952 SC 12; State of U.P. and Others v. Harish Chandraand Others, (1996) 9 SCC 309 : [1996] 1 Suppl. SCR260; Bihar Public Service Commission and Another v.Dr. Shiv Jatan Thakur and Others, (1994) Supp. 3 SCC220 : [1994] 2 Suppl. SCR 94 – referred to.

Anant H. Ulahalkar and Ors. v. Chief ElectionCommissioner and Ors., 2017 (1) Bom CR 230 –referred to.

A[2002] 2 SCR 383held inapplicablePara 49

[2005] 1 SCR 296held inapplicablePara 51

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1429-1430 of 2020.

BFrom 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 ofHigh Court of Judicature at Bombay.

With

C. A. No. 1431/2020

C.A. Sundaram, Sidharth Bhatnagar, Sr. Advs., SudhanshuS. Choudhari, Chintamani Bhangoji, Yogesh Kolte, Mahesh P. Shinde,Shakul R. Ghatole, Dilip Annasaheb Taur, Pramod Gokul Kathane, AmolV. Deshmukh, Abhishek Gupta, Prahalad Paranjape, Mehul M. Gupta,Aditya Sidhra, R. P. Gupta, Ashish Wad, Mrs. Jayashree Wad, SidharthDMahajan, Ms. Sukriti Jaggi, Ajeyo Sharma, M/s. J S Wad And Co., ArunR. Pedneker, Hitesh Kumar Sharma, Sachin Patil, Advs. for the appearingparties.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J.E

1. The question which has arisen in these appeals is as to whetherthe High Court in exercise of its Constitutional jurisdiction conferredunder Article 226 of Constitution of India can pass an order interdictinga legal fiction engrafted in State enactment.

F2. These two appeals have been filed against common judgmentdated 02.04.2019 passed in Writ Petitions filed by the contestingrespondent. Order dated 02.05.2019 in Review Petition No. 20 of 2019filed in Writ Petition No.3673 of 2018 has also been challenged.

3. Brief facts giving rise to these appeals are: -

GA. Civil Appeal NoS.1429-1430/2020

Benedict Denis Kinny versus Tulip Brian Miranda &ors.

i)The respondent as well as appellant contested the election onthe seat of Counsellor in Mumbai Municipal Corporationreserved for Backward class citizens. On 23.02.2017, theH

respondent No.1 was declared elected. Section 5B of MumbaiMunicipal Corporation Act required the candidate to submitcaste validity certificate on the date of filing Nomination paper.A candidate who has applied to Scrutiny Committee for theverification of his caste certificate before date of filingNomination but who had not received the validity certificateon the date of filing Nomination has to submit an undertakingthat he shall submit within period of six months from thedate of election, the validity certificate issued by the ScrutinyCommittee.

ii) It was further provided that if person fails to produce thevalidity certificate within period of six months from the dateof election, that election shall be deemed to have beenterminated retrospectively and he shall be disqualified for beinga Counsellor. The period of six months was amended to betwelve months by Amendment Act, 2018.

iii) The Scrutiny Committee vide its order dated 14.08.2017 heldthat respondent No.1 do not belong to East Indian Category.Therefore, it refused to grant Caste validity certificate in favourof the respondent. Writ Petition No.2269 of 2017 was filed byrespondent challenging order of the Caste Scrutiny Committeedated 14.08.2017.

iv) The High Court vide order dated 18.08.2017 passed an interimorder in favour of respondent No.1 in terms of Prayer clauses(b) and (c). The High Court vide its judgment and order dated02.04.2019 allowed the writ petition filed by respondent No.1and quashed the order of the Scrutiny Committee dated14.08.2017 and remanded the matter to Scrutiny Committeefor fresh consideration.

v) The High Court by the judgment dated 02.04.2019 also directedthat the respondent No.1 is entitled to continue in her seat,since the effect of disqualification was postponed by interimorder and the impugned order of the Caste Scrutiny Committeehas 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 appellantwhich too has been rejected by the High Court by the order

Adated 02.05.2019. Both the orders dated 02.04.2019 and02.05.2019 have been challenged by the appellant in this appeal.

B. Civil Appeal No.1431/2020

Smt. Prachi Prasad Parab versus The State of Maharashtraand ors.

i) Both, the appellant and respondent No.5, Sudha Shambu NathSingh contested election to the Mumbai Municipal Corporationheld from ward No.67 which was reserved for Backward classcitizen. The respondent No.5 was declared elected on23.02.2017. The Scrutiny Committee rejected the claim ofCrespondent No.5 that she belongs to ‘Koyari’ caste which isincluded in the category of OBC in the State of Maharashtravide order dated 19.08.2017. The respondent No.5 filed WritPetition No.145 of 2017 in which interim order dated 22.08.2017was passed directing the respondent not to take any coerciveDaction against the respondent No.5 on the basis of Order passedby Scrutiny Committee.

ii) The High Court by impugned judgment dated 02.04.2019allowed the writ petition filed by respondent No.5 by settingaside the order dated 19.08.2017 passed by Caste ScrutinyECommittee and declared that the respondent No.5 belongs toKoyari Caste.

iii) In view of setting aside of the order of Caste ScrutinyCommittee, it was held that respondent No.5 was entitled tocontinue in her seat since the effect of disqualification wasFpostponed by an interim order passed by the High Court in thewrit petition.

iv) The appellant aggrieved by the judgment dated 02.04.2019 hascome up in this appeal.

4. We have heard Shri Sudhanshu S. Choudhari, learned counselGfor the appellant, in both the appeals. Shri C.A. Sundaram, learned seniorcounsel has appeared on behalf of Tulip Brian Miranda. Shri SidharthBhatnagar, senior Advocate appeared for respondent No.5. We havealso heard learned counsel appearing for the State of Maharashtra.5. Shri Sudhanshu S. Choudhari, learned counsel for the appellantHsubmits that requirement of submission of Caste validity certificate by

Caste Scrutiny Committee within period of one year from the date ofelection is mandatory requirement as held by the Full-Bench of BombayHigh Court in Anant H. Ulahalkar and Ors. Vs. Chief ElectionCommissioner and Ors., 2017 (1) BomCR 230, which has receivedapproval by this Court in case of Shankar S/o Raghunath Devre (Patil)Vs. State of Maharashtra and Others, (2019) 3 SCC 220. Thecontesting respondent having failed to submit Caste Scrutiny certificatewithin one year from 23.02.2017, their election as counsellorretrospectively stands terminated and High Court committed error inallowing them to continue on their seat.

6. It is submitted that High Court could not have extended theperiod beyond one year to produce the Caste Validity certificate. Theprovisions of Section 5B of Mumbai Municipal Corporation beingmandatory, it has to be strictly construed and in no case the said periodcould have been extended by order of the High Court in exercise ofjurisdiction under Article 226 of Constitution of India. The High Courtcould not have passed any interim order against the statutory provisionas contained in Section 5B.

7. Shri C.A. Sundaram, learned senior counsel appearing for therespondent contends that Judicial remedy cannot be taken away by thestatutory provisions. The right of the respondent to judicial remedy is aFundamental Right. The High Court passed an order within the time andHigh Court in Writ Petition was considering wrong order against whichInterim order was rightly passed to protect right of the respondent sothat whole exercise may not be rendered infructuous.

8. Alternately, it is submitted that in pursuance of the remandorder now subsequently the Caste Scrutiny Committee has verified thecaste of the respondent and the order shall relate back to the date whenit was initially passed i.e. on 14.08.2017.

9. Learned counsel appearing for respondent No.5 in Civil AppealNo.1431/2020 contends that jurisdiction under Article 226 cannot becurtailed by any statutory provision. The respondent No.5 cannot be leftremedy less. It has been held that there is an inherent power in the HighCourt to pass interim orders even in Election matters. The final order ofthe High Court must relate back to the date of the impugned order beforethe High Court. The time taken in the adjudication before the courtsought not to be used against the respondent No.5. The interim ordergranted by the High Court was to protect the rights of respondent No.5

Aduring pendency of the writ petition so that in event the wrong orderpassed is set aside, the respondent No.5 may not be put to irreparableloss.

10. From the submissions of learned counsel for the parties andpleadings on record following points arise for consideration:-

(i)Whether the jurisdiction of the High Court under Article 226of the Constitution of India is ousted due to statutory Schemeof Section 5B of the Mumbai Municipal Corporation Act?

(ii) Whether High Court had no jurisdiction to pass an interim orfinal order, the effect of which is to interdict the statutoryCfiction under Section 5B to the effect that in event the CasteScrutiny Certificate is not submitted within six months (nowtwelve months) from the date of election, the election shallbe deemed to have been terminated retrospectively and thecandidate shall be disqualified for being Councillor?

D(iii) Whether the interim order dated 18.08.2017 in Writ PetitionNo.2269 of 2017 staying the order dated 14.08.2017 of theCaste Scrutiny Committee with direction to respondent Nos.2to 4 not to take any action of disqualification as well as thefinal judgment dated 02.04.2019 remanding the matter to theECaste Scrutiny Committee during which writ petitioner washeld to be entitled to continue,were the orders beyondjurisdiction of the High Court under Article 226 and could nothave been passed in view of the Statutory Scheme of Section5B?

F(iv) Whether the interim order of the High Court dated 22.08.2017passed in Writ Petition No. 145 of 2018directing therespondents not to take any coercive action against the writpetitioner on the basis of the Caste Scrutiny Committee’sorder as well as the final judgment of the High Court dated02.04.2019 allowing the writ petition and holding that writGpetitioner was entitled to continue on her seat, were the ordersbeyond jurisdiction of the High Court under Article 226 andcould not have been passed in view of the Statutory Schemedelineated in Section 5B?

11. Before we proceed to consider the respective submissions ofHthe learned counsel for the parties on the points as noted above, we may

first look into the relevant Constitutional and statutory provisions governingthe 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 municipality. Inconsequence of Constitutional (Seventy-fourth) Amendment, theprovisions of the Mumbai Municipal Corporation Act, 1888 were amendedby inserting Section 5A by Maharashtra Act No. 41 of 1994 providingfor reservation of seats. Section 5B was inserted by Maharashtra ActNo.25 of 2006 w.e.f. 19.08.2006 providing for “person contesting electionfor reserved seat to submit Caste Certificates and Validity Certificate”.The provision of Section 5B were deleted by Maharashtra Act No.13 of2008 but were again re-inserted w.e.f. 08.10.2012 by Maharashtra ActNo.21 of 2012. By Maharashtra Act No.13 of 2015, the expression“before 31.12.2013 came to be substituted by the expression before31.12.2017”, which came into effect w.e.f. 01.04.2015. At the time,when the election in question was held,following provision of Section 5Bwas in force:-

“5B. Person contesting election for reserved seats to submitCaste Certificate and Validity Certificate:- Every persondesirous of contesting election to seat reserved for the ScheduledCastes, Scheduled Tribes, or, as the case may be, Backward Classof Citizens, shall be required to submit, alongwith the nominationpaper, Caste Certificate issued by the Competent Authority andthe Validity Certificate issued by the Scrutiny Committee inaccordance with the provisions of the Maharashtra ScheduledCastes, Scheduled Tribes, De-notified Tribes (VimuktaJatis),Nomadic Tribes, Other Backward Classes and Special BackwardCategory (Regulation of Issuance and Verification of) CasteCertificate Act, 2000 (Nag, XXIII of 2001).

Provided that for the General or bye-elections for whichthe last date of filing of nomination falls on or before the 31[st]December, 2017, in accordance with the election programmedeclared by the State Election Commission, person who hasapplied to the Scrutiny Committee for the verification of his CasteCertificate before the date of filing the nomination papers butwho has not received the validity certificate on the date of filingof the nomination papers shall submit alongwith the nominationpapers,-

(i)a true copy of the application preferred by him to theScrutiny Committee for issuance of the validity certificateor any other proof of having made such application tothe Scrutiny Committee; and

(ii)an undertaking that he shall submit, within period ofsix months from the date of his election, the validitycertificate issued by the Scrutiny Committee;

Provided further that, if the person fails to produce thevalidity certificate within period of six months from the date ofhis election, his election shall be deemed to have been terminatedretrospectively and he shall be disqualified for being Councillor.”

13. further amendment was made in Section 5B by MaharashtraAct No.LXV of 2018. In Section 5B of the Mumbai Municipal CorporationAct, following amendments were made:-

“2. In section 5B of the Mumbai Municipal Corporation ActD(hereinafter in this Chapter referred to as “Mumbai CorporationAct”),—

(a) in the first proviso, in clause (ii), for the words “sixmonths” the words “twelve months” shall be substituted and shallbe deemed to have been substituted with effect from 7th April2015;

(b) in the second proviso, for the words “six months” thewords “twelve months” shall be substituted and shall be deemedto have been substituted with effect from 7th April 2015;(c) after the second proviso, the following proviso shall beadded, namely:—

“Provided also that, in respect of the undertaking filed byany person under clause (ii) of the first proviso, before the date ofcommencement of the Mumbai Municipal Corporation, theMaharashtra Municipal Corporations and the MaharashtraMunicipal Councils, Nagar Panchayats and Industrial Townships(Third Amendment) Act, 2018, the period of “six months” specifiedin such undertaking shall be deemed to have been substituted as“twelve months”.”.

14. Two more provisions of Maharashtra Act No. LXV of 2018needs 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 theState Election Commission for conducting the elections or anyprogramme declared by it therefor, prior to the date ofcommencement of the Mumbai Municipal Corporation, theMaharashtra Municipal Corporations and the MaharashtraMunicipal Councils, Nagar Panchayats and Industrial Townships(Third Amendment) Act, 2018, for filling up the resultant vacancyin view of the provisions of section 5B or sub-section (2A) ofsection 37 of the Mumbai Municipal Corporation Act, section 5Bor sub-section (1B) of section 19 of the Maharashtra MunicipalCorporations Act, section 9A or section 51-1B of the MaharashtraMunicipal Councils, Nagar Panchayats and Industrial TownshipsAct,1965, as it stood prior to such date of commencement.

9. Any person, who has obtained the Caste Certificate and validitycertificate but has not filed such certificate prior to the date ofcommencement of this Act, shall not be deemed to be disqualifiedunder the provisions of the relevant Municipal law, if he submitssuch certificate within period of fifteen days from the date ofcommencement of this Act:

Provided that, the provisions of this section shall not applywhere the State Election Commission has already prior to thedate of commencement of this Act held elections to fill the vacancyof such person or declared the programme for holding of suchelection.”

15. Now, reverting to the facts of case in Civil Appeal Nos.1429-1430 of 2020, the election was held and the respondent was declaredelected on 23.02.2017 and as per Section 5B as existing at that time, theCaste Scrutiny Certificate verified by Caste Scrutiny Committee was tobe submitted within six months i.e., by 22.08.2017. The Caste ScrutinyCommittee rejected the claim of respondent by order dated 14.08.2017,which was challenged by filing Writ Petition No. 2269 of 2017 beforehe Bombay High Court. On 18.08.2017Bombay High Court grantedinterim 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 followingeffect:-

A“5. In that view of the matter, issue notice, returnable after twoweeks. In the meantime, there shall be ad-interim relief in termsof prayer clauses (b) and (c).”

16. Prayers (b) and (c) in the writ petition were to the followingeffect:-B

“(b) Pending the hearing and final disposal of the present petition,this Hon’ble Court may be please to stay the effect, operationand implementation of the impugned judgment and award dated14/08/2017 passed by the Respondent No.5.

(c) Pending the hearing and final disposal of the present petition,Cthis Hon’ble Court may be please to direct the respondentNo.2 and 4 not to take any action of dis-qualification basedon the impugned judgment and award dated 14/08/2017 passedby the Respondent No.5"

17. The effect of the interim order dated 18.08.2017 was that theDrespondent Nos.2 and 4 to the writ petition were restrained from takingany action of dis-qualification based on the order dated 14.08.2017 ofthe Caste Scrutiny Committee. The respondent thereafter due to stay ofdisqualification continued to hold his office. The writ petition was finallydecided by the Bombay High Court on 02.04.2019. The High Court heldEthat order of the Scrutiny Committee dated 14.08.2017 rejecting theclaim of the respondent is unsustainable. The writ petition was allowedand the matter was remanded to the Scrutiny Committee forreconsideration. High Court vide its judgment dated 02.04.2019 also tookthe view that since interim order was granted protecting the electedcandidate, keeping in abeyance the consequences flowing fromFinvalidation of the claim, they were entitled to continue in their seats. Inparagraph 57 of the judgment, following has been held:-

“57. …………………………….The question is only about thetwo petitioners i.e. in Writ Petition Nos. 145/2018 and 3673/2018where we have allowed the writ petition and have quashed andGset aside the order passed by the Scrutiny Committee. The electionsto the Municipal Corporation were held in February 2017 and theresult came to be declared on 23[rd]February 2017. This Court, byinterim order dated 19[th]August 2017 had granted protection andhave put in abeyance the consequences flowing from invalidationof the claim of the petitioner. In light of the said interim orderH

passed by us, the petitioner continued to hold the office. The claimof the petitioners has been found to be improperly rejected andwe have quashed and set aside the said order and given adeclaration to the effect that they belong to the caste which theyclaim and hence should continue to hold the said post. Pursuant totheir election, in light of the said aforesaid position, the petitionersin Writ Petition Nos. 145/2018 and 3673/2018 are entitled tocontinue in their seats since the effect of disqualification waspostponed by an interim order and we have now quashed and setaside the impugned order.”18. The validity of the interim order passed by the High Courtdated 18.08.2017 as noted above and the final judgment dated 02.04.2019are up for consideration before us. The similar issues have been raisedin 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 2020also.

19. Whether the interim order of the High Court dated 18.08.2017could have been continued the respondent –Tulip Brian Miranda on herseat even though six months period prescribed in Section 5B for submittingCaste Scrutiny Certificate came to an end on 22.08.2017 and whetherthe election of respondent shall stand retrospectively terminated on22.08.2017 and further judgment dated 02.04.2019 could not have allowedthe respondent to continue on her seat despite expiry of period of oneyear, which was substituted in place of six months by Maharashtra ActNo. LXV of 2018. These are the various aspects, which need to beanswered in these appeals.

20. We need to first notice the nature and extent of the jurisdictionof the High Court under Article 226 of the Constitution of India. Thepower of judicial review vested in the High Courts under Article 226 andthis Court under Article 32 of the Constitution is an integral and essentialfeature of the Constitution and is basic structure of our Constitution.The jurisdiction under Article 226 is original, extraordinary anddiscretionary. The look out of the High Court is to see whether injusticehas resulted on account of any decision of constitutional authority, astatutory authority, tribunal or an authority within meaning of Article12 of the Constitution. The judicial review is designed to prevent casesof abuse of power or neglect of duty by the public authority. Thejurisdiction under Article 226 is used for enforcement of various rights

Aof the public or to compel public/statutory authorities to discharge thepublic functions entrusted on them. The Courts are guardians of therights and liberties of the citizen and they shall fail in their responsibilityif they abdicate their solemn duty towards the citizens. The scope ofArticle 226 is very wide and can be used to remedy injustice whereverit is found. The High Court and Supreme Court are the ConstitutionalBCourts, which have been conferred right of judicial review to protect thefundamental and other rights of the citizens. Halsbury’s Laws of England,Fifth Edition, Volume 24 dealing with the nature of the jurisdiction ofsuperior and inferior courts stated that no matter is deemed to be beyondthe jurisdiction of superior court unless it is expressly shown to be so.CIn paragraph 619, Halsbury’s Laws of England States:-“The chief distinctions between superior and inferior courtsare found in connection with jurisdiction. Prima facie, nomatter is deemed to be beyond the jurisdiction of superiorcourt unless it is expressly shown to be so, while nothing isDwithin the jurisdiction of an inferior court unless it is expresslyshown on the face of the proceedings that the particular matteris within the cognizance of the particular court. An objectionto the jurisdiction of one of the superior courts of generaljurisdiction must show what other court has jurisdiction, soas to make it clear that the exercise by the superior court ofEits general jurisdiction is unnecessary. The High Court, forexample, is court of universal jurisdiction andsuperintendency in certain classes of claims, and cannot bedeprived of its ascendancy by showing that some other courtcould have entertained the particular claim.”F21. The nature of jurisdiction exercised by the High Courts underArticle 226 came for consideration by this Court in large number ofcases. In Sangram Singh Vs. Election Tribunal Kotah and Another,AIR 1955 S.C. 425, Article 226 of the Constitution of India in referenceto Section 105 of the Representation of the People Act, 1951 came forGconsideration. Section 105 of the Representation of People Act providedthat “every order of the Tribunal made under this Act (Representationof People Act) shall be final and conclusive”. Argument was raised inthe above case that neither the High Court nor the Supreme Court canitself transgress the law in trying to set right what it considers is an errorof law on the part of the Court or Tribunal whose records are underH

consideration. It was held that jurisdiction of the High Court remains toits fullest extent despite Section 105. This Court also held that jurisdictionof the High Court in Article 226 and under Article 136 conferred on thisCourt cannot be taken away by legislative device. In paragraph 13,following has been laid down:-

“13. The jurisdiction which Articles 226 and 136 confer entitlesthe High Courts and this Court to examine the decisions of alltribunals to see whether they have acted illegally. That jurisdictioncannot be taken away by legislative device that purports to conferpower on tribunal to act illegally by enacting statute that itsillegal acts shall become legal the moment the tribunal chooses tosay they are legal. The legality of an act or conclusion is somethingthat exists outside and apart from the decision of an inferior tribunal.

It is part of the law of the land which cannot be finallydetermined or altered by any tribunal of limited jurisdiction. TheHigh Courts and the Supreme Court alone can determine whatthe law of the land is vis-a-vis all other courts and tribunals andthey alone can pronounce with authority and finality on what islegal and what is not. All that an inferior tribunal can do is toreach tentative conclusion which is subject to review underArticles 226 and 136. Therefore, the jurisdiction of the High Courtsunder Article 226 with that of the Supreme Court above themremains to its fullest extent despite Section 105.”

22. Seven Judge Bench of this Court in In re The KeralaEducation Bill, 1957, AIR 1958 SC 956 had occasion to considerthe jurisdiction of High Court under Article 226 in reference to provisionin Kerala Educational Bill, 1957. Clause 33 of Kerala Education Billprovided:-

“33. Courts not to grant injunction - Notwithstanding anythingcontained in the Code of Civil Procedure, 1908, or in any otherlaw for the time being in force, no court shall grant any temporaryinjunction or make any interim order restraining any proceedingswhich is being or about to be taken under this Act.”

23. In exercise of power vested in him by Article 143(1), thePresident of India had referred to this Court four questions forconsideration. Question No.4, which is relevant for the present casewas to the following effect:-

DEF

1098SUPREME COURT REPORTS

A“Q.4. Does clause 33 of the Kerala Education Bill or any provisionsthereof, offend Article 226 of the Constitution in anyparticulars or to any extend?”

24. Answering the question No.4, this Court held that no enactmentof State Legislature can take away or abridge the jurisdiction and powerBconferred on the High Court under Article 226. The learned counselappearing for the State of Kerala submitted before this Court that theConstitution is the paramount law of the land, and nothing short of aconstitutional amendment as provided for under the Constitution canaffect any of the provisions of the Constitution, including Article 226. Itwas submitted that the power conferred upon High Courts under ArticleC226 of the Constitution is an over-riding power entitling them, undercertain conditions and circumstances, to issue writs, orders and directionsto subordinate courts, tribunals and authorities notwithstanding any ruleor law to the contrary. The Constitution Bench in paragraph 35 hasnoticed the stand taken on behalf of State of Kerala in following words:-

“35.XXXXXXXXXXXXXXXXXXXX

The State of Kerala in their statement of case disowns inthe following words all intentions in that behalf:

“52. Kerala State asks this Honourable Court to answerEthe fourth question in the negative, on the ground that the powergiven to High Courts by Article 226 remains unaffected by thesaid clause 33.

53. Kerala State contends that the argument that clause 33affects Article 226 is without foundation.

F54. The Constitution is the paramount law of the land, andnothing short of constitutional amendment as provided for underthe Constitution can affect any of the provisions of the Constitution,including Article 226. The power conferred upon High Courtsunder Article 226 of the Constitution is an overriding power entitlingthem, under certain conditions and circumstances, to issue writs,Gorders and directions to subordinate courts, tribunals and authoritiesnotwithstanding any rule or law to the contrary.”

25. This Court expressed its agreement with the submissions madeby State of Kerala and held that clause 33 is subject to the overridingprovisions of Article 226 of the Constitution of India. This Court laidHdown following:-

“Learned counsel for the State of Kerala submits that clause33 must be read subject to Articles 226 and 32 of the Constitution.He relies on the well known principle of construction that if aprovision in statute is capable of two interpretations then thatinterpretation should be adopted which will make the provisionvalid rather than the one which will make it invalid. He relies onthe words “other law for the time being in force” as positivelyindicating that the clause has not the Constitution in contemplation,for it will be inapt to speak of the Constitution as “law for thetime being in force”. He-relies on the meaning of the word “law”appearing in Articles 2, 4, 32(3) and 367(1) of the Constitutionwhere it must mean law enacted by legislature. He also relieson the definition of “Indian law” in Section 3(29) of the GeneralClauses Act and submits that the word “law” in clause 33 mustmean law of the same kind as the Civil Procedure Code of1908, that is to say, law made by an appropriate legislature inexercise of its legislative function and cannot refer to theConstitution. We find ourselves in agreement with this contentionof learned counsel for the State of Kerala. We are not aware ofany difficulty — and none has been shown to us — in construingclause 33 as provision subject to the overriding provisions ofArticle 226 of the Constitution and our answer to Question 4 mustbe in the negative.”26. What has been laid down by Constitution bench of this Courtin above case makes it beyond any doubt that the power under Article226 of the Constitution overrides any contrary provision in Statute andthe power of the High Court under Article 226 cannot be taken away orabridged by any contrary provision in Statute.

27. Gajendragadkar, C.J. speaking for Constitution Bench ofthis Court in Re: Under Article 143 of the Constitution of India,AIR 1965 SC 745 held that existence of judicial power in the HighCourt under Article 226 and this Court under Article 32 postulate theexistence of right in the citizen to move the Court otherwise the powerconferred on the High Courts and this Court would be rendered virtuallymeaningless.In paragraph 129 following was held:-

“129. If the power of the High Courts under Article 226 and theauthority of this Court under Article 32 are not subject to anyexceptions, then it would be futile to contend that citizen cannot

ABC

Amove the High Courts or this Court to invoke their jurisdictioneven in cases where his fundamental rights have been violated.The existence of judicial power in that behalf must necessarilyand inevitably postulate the existence of right in the citizen tomove the Court in that behalf; otherwise the power conferred onthe High Courts and this Court would be rendered virtuallyBmeaningless. Let it not be forgotten that the judicial powerconferred on the High Courts and this Court is meant for theprotection of the citizens’ fundamental rights, and so, in theexistence of the said judicial power itself is necessarily involvedthe right of the citizen to appeal to the said power in properCcase.”

28. Seven Judge Bench in L. Chandra Kumar Vs. Union ofIndia and Others, (1997) 3 SCC 261 again had occasion to examinethe nature and extent of jurisdiction of the High Court under Article 226.It was held that power of judicial review under Article 226 and ArticleD32 of the Constitution is an integral and essential feature of theConstitution, constituting part of its basic structure. The Constitution Benchwas examining the validity of clause 2(d) of Article 323A and clause3(d) of Article 323B, which excluded the jurisdiction of the High Court.Article 323A clause 2(d) provided as under:-

E“323A. Administrative tribunals.- (1) Parliament may, by law,provide for the adjudication or trial by administrative tribunals ofdisputes and complaints with respect to recruitment and conditionsof service of persons appointed to public services and posts inconnection with the affairs of the Union or of any State or of anylocal or other authority within the territory of India or under theFcontrol of the Government of India or of any corporation ownedor controlled by the Government.

(2) law made under clause (1) may—

XXXXXXXXXXXXXXXXXXX

G(d) exclude the jurisdiction of all courts, except the jurisdiction ofthe Supreme Court under article 136, with respect to the disputes orcomplaints 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 clause2(d) of Article 323-A and clause 3(d) of Article 323-B, to theextent they exclude the jurisdiction of the High Courts and theSupreme Court under Articles 226/227 and 32 of the Constitution,are unconstitutional. Section 28 of the Act and the “exclusion ofjurisdiction” clauses in all other legislations enacted under the aegisof Articles 323-A and 323-B would, to the same extent, beunconstitutional. The jurisdiction conferred upon the High Courtsunder Articles 226/227 and upon the Supreme Court under Article32 of the Constitution is part of the inviolable basic structure ofour Constitution. While this jurisdiction cannot be ousted, othercourts and Tribunals may perform supplemental role indischarging the powers conferred by Articles 226/227 and 32 ofthe Constitution………………………..”

30. In Election Commission of India through Secretary Vs.

Ashok Kumar and Others, (2000) 8 SCC 216, Three Judge Benchhad occasion to consider the jurisdiction of the High Court under Article226 to entertain petition and to issue interim direction aftercommencement of electoral process. In reference to bar as created byArticle 329 of the Constitution of India, this Court quoted with approvalstatement 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 natureof the jurisdiction exercised by them came up for the considerationof this Court in M.V. Elisabeth v. Harwan Investment andTrading (P) Ltd., 1993 Supp. (2) SCC 433. It was held that theHigh Courts in India are superior courts of record. They haveoriginal and appellate jurisdiction. They have inherent andsupplementary powers. Unless expressly or impliedly barred andsubject to the appellate or discretionary jurisdiction of SupremeCourt, the High Courts have unlimited jurisdiction including thejurisdiction to determine their own powers. The followingstatement 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 jurisdictionof superior court unless it is expressly shown to be so, whilenothing is within the jurisdiction of an inferior court unless it isexpressly shown on the face of the proceedings that theparticular matter is within the cognisance of the particularcourt.”

16. This Court observed that the jurisdiction of courts is carvedout of sovereign power of the State. People of free India aresovereign and the exercise of judicial power is articulated in theprovisions of the Constitution to be exercised by courts under theConstitution and the laws thereunder. It cannot be confined to theCprovisions of imperial statutes of bygone age. Access to courtwhich is an important right vested in every citizen implies theexistence of the power of the Court to render justice according tolaw. Where statute is silent and judicial intervention is required,courts strive to redress grievances according to what is perceivedDto be principles of justice, equity and good conscience.

17. That the power of judicial review is basic structure ofConstitution — is concept which is no longer in issue.”

31. This Court laid down in the above case that arbitrariness andmalafide destroy the validity and efficacy of all orders passed by publicEauthorities. This Court in the above case held that the jurisdiction

of Article 226 is not even barred in election matter though it hasto be sparingly exercised.This Court held that provisions of theConstitution and the Act read together do not totally exclude the right ofa citizen to approach the court so as to have the wrong done remediedFby invoking the judicial forum. In paragraph 30, following was laid down:-

“30. To what extent Article 329(b) has an overriding effect onArticle 226 of the Constitution? The two Constitution Bencheshave held that Representation of the People Act, 1951 providesfor only one remedy; that remedy being by an election petition tobe presented after the election is over and there is no remedyprovided at any intermediate stage. The non obstante clause withwhich Article 329 opens, pushes out Article 226 where the disputetakes the form of calling in question an election (see para 25 ofMohinder Singh Gill case, (1978) 1 SCC 405). The provisionsof the Constitution and the Act read together do not totally exclude

the right of citizen to approach the court so as to have the wrongdone remedied by invoking the judicial forum; nevertheless thelesson is that the election rights and remedies are statutory, ignorethe trifles even if there are irregularities or illegalities, and knockthe doors of the courts when the election proceedings in questionare over. Two-pronged attack on anything done during the electionproceedings is to be avoided — one during the course of theproceedings and the other at its termination, for such two-prongedattack, if allowed, would unduly protract or obstruct the functioningof democracy.”

32. We may notice another Three Judge Bench judgment of thisCourt in Asian Resurfacing of Road Agency Private Limited andAnother Vs. Central Bureau of Investigation, (2018) 16 SCC 299.In the above case, jurisdiction of the High Court under Article 226 cameto be considered in light of provisions of Section 19(3)(c) of the Preventionof Corruption Act, 1988. We may first notice Section 19(3)(c) of thePrevention of Corruption Act, which is to the following effect:-

“19. Previous sanction necessary for prosecution.—

XXXXXXXXXXXXXXXX

(3) Notwithstanding anything contained in the Code of CriminalProcedure, 1973—

(c) no court shall stay the proceedings under this Act on any otherground and no court shall exercise the powers of revision in relationto any interlocutory order passed in inquiry, trial, appeal or otherproceedings.”

33. There being difference of opinion amongst different Benchesof this Court as well as of all the High Courts, reference was made toa Three Judge Bench of the Delhi High Court. In the above Three JudgeBench, High Court had held that even if petition Under Section 482 ofthe Code of Criminal Procedure or writ petition Under Article 227 ofthe Constitution of India is entertained by the High Court under nocircumstances an order of stay should be passed regard being had to theprohibition contained in Section 19(3)(c) of the 1988 Act. Justice AdarshKumar Goel speaking for this Court held that despite Section 19(1)(c),the High Court in an appropriate case can grant stay and laid downfollowing in paragraph 28:-

“28. We have thus no hesitation in concluding that the High Courthas jurisdiction in an appropriate case to consider the challengeagainst an order framing charge and also to grant stay but howsuch power is to be exercised and when stay ought to be grantedneeds to be considered further.”

B34. Justice R.F. Nariman delivered concurring opinion and inhis judgment after extracting Section 19 of Prevention of CorruptionAct, 1988 held that Section 19(3)(c)cannot be read as ban on themaintainability of petition before High Court. In paragraph 52 and54, following has been laid down:-

C“52. The question as to whether the inherent power of HighCourt would be available to stay trial under the Act necessarilyleads us to an inquiry as to whether such inherent power soundsin constitutional, as opposed to statutory law. First and foremost,it must be appreciated that the High Courts are established by theConstitution and are courts of record which will have all powersDof such courts, including the power to punish contempt ofthemselves (see Article 215). The High Court, being superiorcourt of record, is entitled to consider questions regarding its ownjurisdiction when raised before it. In an instructive passage by aConstitution Bench of this Court in Powers, Privileges andEImmunities 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 superior Court of Record, it isfor the court to consider whether any matter falls within itsjurisdiction or not. Unlike Court of limited jurisdiction, thesuperior court is entitled to determine for itself questions aboutits own jurisdiction. “Prima facie”, says Halsbury, ‘no matteris deemed to be beyond the jurisdiction of superior courtunless it is expressly shown to be so, while nothing is withinthe jurisdiction of an inferior court unless it is expressly shownon the face of the proceedings that the particular matter iswithin the cognizance of the particular court’ [Halsbury’s Lawsof England, Vol. 9, p. 349].”

54. It is thus clear that the inherent power of court set up by theConstitution is power that inheres in such court because it is aHsuperior court of record, and not because it is conferred by the

Code of Criminal Procedure. This is power vested by theConstitution itself, inter alia, under Article 215 as aforestated. Also,as such High Courts have the power, nay, the duty to protect thefundamental rights of citizens under Article 226 of the Constitution,the inherent power to do justice in cases involving the liberty ofthe citizen would also sound in Article 21 of the Constitution. Thisbeing the constitutional position, it is clear that Section 19(3)(c)cannot be read as ban on the maintainability of petition filedbefore the High Court under Section 482 of the Code of CriminalProcedure, the non obstante clause in Section 19(3) applying onlyto the Code of Criminal Procedure……………”

35. The Delhi High Court’s judgment’s conclusion in paragraph36(d) was set aside. The Delhi High Court in paragraph 36(d), whichjudgment was impugned before this Court had laid down:-

“36. In view of our aforesaid discussion, we proceed to answerthe reference on following terms:

(d) Even if petition under Section 482 of the Code of CriminalProcedure or writ petition under Article 227 of the Constitutionof India is entertained by the High Court under no circumstancesan order of stay should be passed regard being had to theprohibition contained in Section 19(3)(c) of the 1988 Act.”

36. Justice Nariman ultimately after referring the judgment ofL. Chandra Kumar (supra) has set aside the conclusion of Delhi HighCourt in paragraph 36(d). The above judgment, thus, laid down that despiterestraint in Section 19(3)(c) of Prevention of Corruption Act, thejurisdiction of the High Court to issue an interim order is not precluded.This Court in the above case has dealt with situation when statutoryprovision, i.e., Section 19(3)(c) of Prevention of Corruption Act createsa specific bar in passing stay order. When despite the aforesaidstatutory bar, High Court was held to have jurisdiction to pass an interimorder, in the present case, we are concerned in statutory scheme wherethere is no express or implied bar in passing an interim order by the HighCourt.

37. As per Section 5B, candidate belonging to reserved category,who has made an application to the Scrutiny Committee forissuance ofValidity Certificate prior to date of filing of nomination is obliged to submitthe certificate within six months from the date of election(now substituted

Aby twelve months), failing which his election shall be deemed to havebeen terminated retrospectively. The second proviso to Section 5B createsa deeming fiction, which operates when person failed to produce theValidity Certificate within period of six months/twelve months fromthe date of his election. The present is case where before expiry ofperiod of six months from the date of election, i.e., 23.02.2017, the CasteBScrutiny Committee has rejected the claim of respondent and writpetition was filed by the respondent before expiry of period of six monthsand the High Court also granted an interim order on 18.08.2017, i.e.,within period of six months, after expiry of which the deeming fictionwas to come into existence. The interim order was passed by the HighCCourt before deeming fiction of termination of election retrospectivelycame into operation. The consequence of non-filing of Validity Certificatewithin period of six months was postponed rather interdicted by theinterim order of the High Court. The jurisdiction of the High Court topass the above interim order dated 18.08.2017 is questioned by theappellants. Caste Scrutiny Committee, which is statutory authorityDconstituted under State enactment to verify the caste claimed by citizens,in event, illegally rejects the claim of citizen, does the citizen has no rightto seek judicial remedy? Can the illegal rejection of caste claim of acitizen is fait accompli after expiry of period of six months? When acitizen has right to judicial review against any decision of statutoryEauthority, the High Court in exercise of judicial review had everyjurisdiction to maintain the status quo so as to by lapse of time, the petitionmay not be infructuous. The interim order can always be passed by aHigh Court in exercise of writ jurisdiction to maintain the status quo sothat at the time of final decision of the writ petition, the relief may notbecome infructuous.F

38. We are conscious of the fact that the High Court has toexercise jurisdiction under Article 226 with due regard to the legislativeintent manifested by provisions of enactment. Nine Judges ConstitutionBench in Mafatlal Industries Ltd. and Others Vs. Union of Indiaand Others, (1997) 5 SCC 536 had laid down such preposition inGparagraph 108 in following words:-

“108. XXXXXXXXXXXXXX

XXXXXXXXXXXXXX

(x)………………………So far as the jurisdiction of the HighCourts under Article 226 of the Constitution — or of this Courtunder Article 32 — is concerned, it remains unaffected by theprovisions of the Act. Even so, the Court would, while exercisingthe jurisdiction under the said articles, have due regard to thelegislative intent manifested by the provisions of the Act. The writpetition would naturally be considered and disposed of in the lightof and in accordance with the provisions of Section 11-B. This isfor the reason that the power under Article 226 has to be exercisedto effectuate the regime of law and not for abrogating it. Evenwhile acting in exercise of the said constitutional power, the HighCourt cannot ignore the law nor can it override it. The powerunder Article 226 is conceived to serve the ends of law and not totransgress them.”

39. Learned counsel for the appellant has laid great emphasis onthe Full Bench Judgment of the Bombay High Court in Anant H.Ulahalkar and Ors. (supra). The three questions, which were referredbefore the Full Bench were as follows:-

“2. The genesis of this reference is the order dated 11 August2015 made in the present Writ Petition by the Division Bench(Coram: Naresh H. Patil & V.L. Achliya, JJ). This order takescognizance of the aforesaid conflict and opines that the matter beplaced before the Hon’ble Chief Justice to consider whetherreference needs to be made to Larger Bench. The order alsonotes that the following questions of law arise :

“(i) Whether the time limit prescribed under section 9-A of theMaharashtra Municipal Councils, Nagar Panchayats andIndustrial Townships Act, 1965, for submission of caste validitycertificate by elected Councillor is mandatory in nature?

(ii) Whether the failure on the part of person elected as Councillorto produce the caste validity certificate within the period of sixmonths from the date on which he was declared elected,irrespective of facts and circumstances and eventuality beyondthe control of such person to produce validity certificate wouldautomatically result into termination of his election withretrospective effect?

(iii) Whether the validation of caste claim of elected Councillor bythe Scrutiny Committee beyond the prescribed period wouldautomatically result into termination of such Councillor withretrospective operation?”

40. The Full Bench in the above case was considering Section 9-BA of Maharashtra Municipal Councils, Nagar Panchayats and IndustrialTownships Act, 1965, which is pari materia to Section 5B of MumbaiMunicipal Corporations Act, 1888. The High Court after elaborateconsideration has held that requirement of submitting the caste certificatewithin period of six months is mandatory requirement. In paragraphs98, 99 and 100, following was laid down:-C

“98. In the present case also the legislature in enacting Section 9-A has provided for statutory fiction, which is evident from theuse of expression “his election shall be deemed to have beenterminated retrospectively and he shall be disqualified being aCouncillor”. The statutory fiction must be allowed to have its fullDplay. No other provision or reason has been pointed out to takethe view that consequences prescribed under second proviso toSection 9-A are not automatic or would require any furtheradjudication once it is established that the person elected has failedto produce the Validity Certificate within stipulated period of sixEmonths from the date of his election.99. The validation of caste claim of the elected Councillor by theScrutiny Committee beyond the prescribed period would have noeffect upon the statutory consequences prescribed under thesecond proviso to Section 9-A i.e. deemed retrospectiveFtermination of the election of such Councillor and his disqualificationfor being Councillor. The subsequent validation or issue of theValidity Certificate will therefore be irrelevant for the purpose ofrestoration of the Councillor’s election but, such validation willobviously entitle him to contest the election to be held on accountof termination of his election and the consequent vacancy causedGthereby.

100. In the result, we hold that the time limit of six monthsprescribed in the two provisos to Section 9-A of the said Act,within which an elected person is required to produce the ValidityCertificate from the Scrutiny Committee is mandatory.

Further, in terms of second proviso to Section 9-A if personfails to produce Validity Certificate within period of six monthsfrom the date on which he is elected, his election shall be deemedto have been terminated retrospectively and he shall be disqualifiedfor being Councillor.

Such retrospective termination of his election anddisqualification for being Councillor would be automatic andvalidation of his caste claim after the stipulated period would notresult in restoration of his election.

The questions raised, stand answered accordingly.”

41. The judgment of the Full Bench of Bombay High Court camefor 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 theFull Bench of the Bombay High Court that Statute engrafts mandatoryrequirement in law. In paragraphs 7, 8 and 9, this Court laid downfollowing:-

“7. proviso to the aforesaid main provision of the statute wasbrought in subsequently which permitted candidate to file his/her nomination even in the absence of the validity certificateprovided he/she encloses with the nomination true copy of theapplication filed by him/her before the Scrutiny Committee andan undertaking that he/she shall submit, within period of sixmonths from the date of his/her election, the validity certificateissued by the Scrutiny Committee.

8. There is second proviso which contemplates that on the failureof the person(s) concerned to produce the validity certificate withinthe time-frame stipulated his election “shall be deemed to havebeen terminated retrospectively and he shall be disqualifiedfor being Councillor”.

9. We have read and considered the very elaborate reasoningadopted by the Full Bench of the High Court in coming to itsconclusions that the aforesaid provisions of the statute engrafts amandatory requirement in law. The High Court, in our consideredview, very rightly came to the aforesaid conclusion along with thefurther finding that equities in individual case(s) would not be agood ground to hold the provision to be directory. In fact, the High

ACourt has supported its decision by weighty reasons to hold thatreading the provisions to be directory would virtually amount torendering the same to be nugatory.

42. This Court also rejected the submission that hardship in fewcases would not be good ground to hold the provision to be directory.BThere can be no dispute to the preposition as laid down by this Courtthat requirement of submitting the Caste certificate within period ofsix months (now twelve months) under proviso to Section 5B is amandatory requirement and consequences of non-submission within theperiod prescribed is automatic retrospective termination of the election.The above pronouncement of law by Three Judge Bench is bindingCprecedent. The requirement of submission of certificate is mandatoryrequirement failing which deemed termination of election automaticallyshall ensue. We, in the present case, are not to take any other view ofthe law as laid down in the above case. However, the point which hasarisen for determination in these appeals is different i.e. as to whetherDHigh Court in exercise of jurisdiction under Article 226 can interdict theabove consequences envisaged by Section 5B by passing an interim orfinal judgment. Before the Full Bench of the Bombay High Court aswell as the Three Judge Bench of this Court in Shankar S/o RaghunathDevre (Patil) (supra), the issue as to whether the High Court hasjurisdiction under Article 226 to stay the consequences of deemingEprovision was neither considered nor answered. We may clarify that inevent there are no orders staying the consequences of deeming fictionas envisaged in proviso to Section 5B, the election shall automaticallystand terminated retrospectively but in the present case in the facts ofboth the appeals, the consequences of deeming fiction as contained inFsecond proviso to Section 5B were stayed/interdicted by order of theHigh Court, hence the retrospective termination could not take place.

43. Shri Sudhanshu S. Choudhari, learned counsel for the appellanthas also submitted that High Court was not empowered to continue theinterim relief granted to the writ petitioners beyond period of one yearGfrom the date of election as per the statutory scheme under Section 5B.It is true that requirement of submission of Caste Validity Certificatewithin period of one year is statutory requirement but in the facts ofthe case before us before the expiry of the period, Caste ScrutinyCommittee has illegally rejected the claim necessitating filing of writpetition by aggrieved persons in which writ petition the interim reliefH

was granted by the High Court. The power of the High Court to grantan interim relief in appropriate case cannot be held to be limited only forperiod of one year, which was period envisaged in Section 5B forsubmission of the Caste Validity Certificate. No such fetter on the powerof the High Court can be read by virtue of provision of Section 5B.

44. The reliance of learned counsel for the appellant on thejudgment of this Court in the case of The State of Orissa Vs. MadanGopal Rungta, 1952 SCR 28: AIR 1952 SC 12 that interim reliefcan be granted only in aid of and as ancillary to the main relief, does notsupport the case of the appellant. In the present case, the interim reliefwas granted by the High Court, which was in aid of and ancillary to themain relief, which could be granted to the appellant at the time ofdetermination 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 309has held that there can be no mandamus against statute, hence, theHigh Court could not have issued writ of mandamus because therewas an interim order in favour of respondent No.1. In the final judgmentpassed by the High Court dated 02.04.2019, there is direction of theHigh Court to continue the respondent in their elected office. The tenureof the office for which the respondents were elected had not come to anend, hence, present was not case of issue any direction to continue therespondent beyond the period of tenure. The interim order passed by theHigh Court was in exercise of judicial review by the High Court to protectthe rights of the respondents.

46. Learned counsel for the appellant has also relied on judgmentof this Court in Bihar Public Service Commission and Another Vs.Dr. Shiv Jatan Thakur and Others, (1994) Supp. 3 SCC 220. ThisCourt in the above case in paragraph 38 has laid down following:-

“38. …………….It is true that Article 226 of the Constitutionempowers the High Court to exercise its discretionary jurisdictionto issue directions, orders or writs, including writs in the nature ofhabeas corpus, certiorari, quo warranto and mandamus or any ofthem for the enforcement of the rights conferred under theConstitution or for an other purpose, but such discretion to issuedirections or writs or orders conferred on the High Court underArticle 226 being judicial discretion to be exercised on the basis

1112SUPREME COURT REPORTS

Aof well-established judicial norms, could not have been used bythe High Court to make the said interim orders which could nothave in any way helped or aided the Court in granting the mainrelief sought in the writ petition………………………”

47. From the above preposition laid down by this Court, it is clearBthat such interim direction can be passed by the High Court under Article226, which could have helped or aided the Court in granting main reliefsought in the writ petition. In the present case, the decision of the CasteScrutiny Committee having been challenged by the writ petitioners andthe High Court finding prima facie substance in the submissions grantedinterim order, which ultimately fructified in final order setting aside theCdecision of the Caste Scrutiny Committee. The interim order, thus, passedby the High Court was in aid of the main relief, which was granted bythe High Court.

48. The learned counsel for the appellant has also referred toLand Acquisition Act, 1984 and submit that there is no provision underDSection 5B similar to Explanation to Section 11A of the Land AcquisitionAct, 1984, which exclude the period of stay granted by the Court incomputing the period mentioned in the main provision. The provision ofSection 11A of the Land Acquisition Act, which provides for the periodwithin which an award shall be made contains legislative scheme inEreference to the Land Acquisition Act, 1894, the Explanation to Section11A providing that in computing the period of two years referred to inSection 11A, the period during which any action or proceeding to betaken in pursuance of said declaration is stated by an order of the Courtshall be excluded. Section 11A is legislative scheme in reference toLand Acquisition Act, which provision is entirely different and does notFlend any support to the submission made by the learned counsel for theappellant.49. Learned counsel for the appellant has relied on judgment ofthis Court in Padma Sundara Rao (Dead) and Others Vs. State ofT.N. and Others, (2002) 3 SCC 533 for the preposition that legislativeGcasus omissus cannot be supplied by judicial interpretative process. ThisCourt in the above case laid down following in paragraph 14:-

“14. While interpreting provision the court only interprets thelaw and cannot legislate it. If provision of law is misused andsubjected to the abuse of process of law, it is for the legislature to

amend, modify or repeal it, if deemed necessary. (See RishabhAgro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5SCC 515) The legislative casus omissus cannot be supplied byjudicial interpretative process. Language of Section 6(1) is plainand unambiguous. There is no scope for reading something into it,as was done in Narasimhaiah case, (1996) 3 SCC 88. InNanjudaiah case, (1996) 10 SCC 619 the period was furtherstretched to have the time period run from date of service of theHigh Court’s order. Such view cannot be reconciled with thelanguage of Section 6(1). If the view is accepted it would meanthat case can be covered by not only clause (i) and/or clause(ii) of the proviso to Section 6(1), but also by non-prescribedperiod. Same can never be the legislative intent.”

50. In the above case, this Court had occasion to consider Section6 of Land Acquisition Act. In the above case, Notification under Section4 was issued before the commencement of Land Acquisition(Amendment) Act, 1984. The Notification under Section 6(1) was issuedwithin the period of three years prescribed under proviso to Section 4 asit existed then. This Court held that the period prescribed is pre-emptivein nature and cannot be stretched. The observation as extracted abovein paragraph 14 was made in the above context. The above judgmenthas no application in the issues, which have come for consideration inthe present case. Present is not case of any causes omissus, which issought to be filled up by any kind of judicial interpretation.

51. Shri Choudhari has also placed reliance on K. PrabhakaranVs. P. Jayarajan, (2005) 1 SCC 754 for the preposition that subsequentdecision of setting aside the conviction would not have the effect ofwiping out the disqualification, which did exist on the focal point dates.The decisive dates are the dates of election and the date of scrutiny ofnomination and not the date of judgment in an election petition or inappeal there against. There can be no dispute to the preposition as laiddown by this Court in K. Prabhakaran (supra). Present is not caseof any kind of disqualification of the respondent at the time of holdingelection or on the date of scrutiny of nomination. The above judgmenthas no application at all. We, thus, do not find any substance in thesubmission of the learned counsel for the appellant that High Court couldnot have passed an interim order in the writ petitions filed by therespondents, which may have effect of the respondents’ continuance

Aafter expiry of period of six months by which date, they had to file theirCaste Validity Certificate. There is no fetter in the jurisdiction of theHigh Court in granting an interim order in case where caste claim byrespondents was illegally rejected before the expiry of period of sixmonths and the High Court granted the interim order before the expiryof period of six months. In the facts of the present case, the deemingBfiction of retrospective termination of the election could not come inoperation due to the interim order passed by the High Court, hence deemingfiction under Section 5B second proviso never came into existence toretrospectively terminate the election of the respondent. We have alreadyheld that the submission of the appellant that interim order of the HighCCourt could not have been allowed to continue beyond the period of sixmonths/one year cannot be accepted. No such fetter can be read in thejurisdiction of the High court or in the interim order passed by the HighCourt in exercise of the jurisdiction under Article 226 nor any kind offetter can be read from any State enactment. In view of the foregoingdiscussions, we arrive at following conclusions:-D

(i)The power of judicial review vested in the High Courtsunder Article 226 and this Court under Article 32 of theConstitution is an integral and essential feature of theConstitution and is basic structure of our Constitution. Thejurisdiction under Article 226 is original, extraordinary andEdiscretionary. The look out of the High Court is to seewhether injustice has resulted on account of any decisionof constitutional authority, tribunal, statutory authorityor an authority within meaning of Article 12 of theConstitution.

F(ii)The Courts are guardians of the rights and liberties of thecitizen and they shall fail in their responsibility if theyabdicate their solemn duty towards the citizens. The scopeof Article 226 is very wide and can be used to remedyinjustice wherever it is found.

G(iii)The power under Article 226 of the Constitution overridesany contrary provision in Statute and the power of theHigh Court under Article 226 cannot be taken away orabridged by any contrary provision in Statute.

(iv)When citizen has right to judicial review against anyHdecision of statutory authority, the High Court in exercise

of judicial review had every jurisdiction to maintain the statusquo so as to by lapse of time, the petition may not beinfructuous. The interim order can always be passed by aHigh Court in exercise of writ jurisdiction to maintain thestatus quo in aid of the relief claimed so that at the time offinal decision of the writ petition, the relief may not becomeinfructuous.

(v)It is true that requirement of submission of Caste ValidityCertificate within period of one year under Section 5B ofMumbai Municipal Corporation Act is mandatoryrequirement but in the facts of the case before us beforeCthe expiry of the period of six month, the Caste ScrutinyCommittee had illegally rejected the claim necessitating filingof writ petition by aggrieved persons in which writ petitionthe interim relief was granted by the High Court. The powerof the High Court to grant an interim relief in appropriatecase cannot be held to be limited only for period of oneDyear, which was period envisaged in Section 5B forsubmission of the Caste Validity Certificate. No such fetteron the power of the High Court can be read by virtue ofprovision of Section 5B.

(vi)There is no fetter in the jurisdiction of the High Court ingranting an interim order in case where caste claim ofthe respondents was illegally rejected before the expiry ofperiod of six months and the High Court granted the interimorder before the expiry of the period of six months, as thenprescribed.

(vii)In the facts of the present case, the deeming fiction underSection 5B of retrospective termination of the election couldnot come in operation due to the interim order passed bythe High Court.

52. We, for the discussion and conclusions as above, answer thepoints formulated in following manner: -

(i)Section 5B of the Mumbai Municipal Corporation Act doesnot oust the jurisdiction of High Court under Article 226 ofthe Constitution.

A(ii)The High Court in exercise of jurisdiction under Article 226of the Constitution can pass an order interdicting the legalfiction as contemplated under second proviso to Section5B, provided the legal fiction had not come into operation.

(iii)The interim order dated 18.08.2017 in Writ Petition No.2269Bof 2017 as well as the impugned final judgment dated02.04.2019 were not beyond the jurisdiction of High Courtunder Article 226 of the Constitution.

(iv)The interim order dated 22.08.2017 and final judgementdated 02.04.2019 in Writ Petition No.145 of 2018 were notCthe orders beyond the jurisdiction of High Court underArticle 226 of the Constitution.

53. We do not find any error in the impugned judgment of theHigh Court insofar as it continues the respondent No.1 in Civil AppealNos. 1429-1430 of 2020 till the decision of Scrutiny Committee is takenDconsequent to the setting aside of the report of the Scrutiny Committeeby the impugned judgment. Insofar as the case of the respondent in CivilAppeal No. 1431 of 2020 is concerned, the High Court by the impugnedjudgment has not only set aside the order of the Scrutiny Committee butdeclared the respondent to be belonging to backward class, i.e., Koyari.

E54. In the counter affidavit filed by the respondent No.1 in CivilAppeal Nos. 1429-1430 of 2020, the respondent No.1 has brought onrecord the order dated 30.09.2019 of the Caste Scrutiny Committee bywhich the Caste Scrutiny Committee has upheld the claim of respondentNo.1 to belong to backward class.

F55. In view of the foregoing discussions and conclusions, we donot find any error in the impugned judgment of the High Court dated02.04.2019. There is no merit in the appeals. All the appeals are dismissed.

Ankit Gyan

Appeals dismissed.