TMI Blog2020 (3) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... t take place. From the preposition laid down by this Court in Bihar Public Service Commission and Another Vs. Dr. Shiv Jatan Thakur and Others [ 1994 (7) TMI 374 - SUPREME 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. The provision of Section 11A of the Land Acquisition Act, which provides for the period within which an award shall be made contains a legislative scheme in reference to the Land Acquisition Act, 1894, the Explanation to Section 11A providing that in computing the period of two years referred to in Section 11A, the period during which any action or proceeding to be taken in pursuance of said declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AOR, Mr. Ashish Wad, Adv., Mrs. Jayashree Wad, Adv., Mr. Sidharth Mahajan, Adv., Ms. Sukriti Jaggi, Adv. and M/S. J S Wad And Co, AOR. JUDGMENT 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 interdicting a legal fiction engrafted in a State enactment. 2. These two appeals have been filed against common judgment dated 02.04.2019 passed in Writ Petitions filed by the contesting respondent. Order dated 02.05.2019 in Review Petition No. 20 of 2019 filed in Writ Petition No.3673 of 2018 has also been challenged. 3. Brief facts giving rise to these appeals are: - A. Civil Appeal NoS.1429-1430/2020 Benedict Denis Kinny versus Tulip Brian Miranda ors. i) The respondent as well as appellant contested the election on the seat of Counsellor in Mumbai Municipal Corporation reserved for Backward class citizens. On 23.02.2017, the 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 fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. The Scrutiny Committee rejected the claim of respondent No.5 that she belongs to Koyari caste which is included in the category of OBC in the State of Maharashtra vide order dated 19.08.2017. The respondent No.5 filed a Writ Petition No.145 of 2017 in which interim order dated 22.08.2017 was passed directing the respondent not to take any coercive action against the respondent No.5 on the basis of Order passed by Scrutiny Committee. ii) The High Court by impugned judgment dated 02.04.2019 allowed the writ petition filed by respondent No.5 by setting aside the order dated 19.08.2017 passed by Caste Scrutiny Committee and declared that the respondent No.5 belongs to Koyari Caste. iii) In view of setting aside of the order of Caste Scrutiny Committee, it was held that respondent No.5 was entitled to continue in her seat since the effect of disqualification was postponed by an interim order passed by the High Court in the writ petition. iv) The appellant aggrieved by the judgment dated 02.04.2019 has come up in this appeal. 4. We have heard Shri Sudhanshu S. Choudhari, learned counsel for the appellant, in both the appeals. Shri C.A. Sundaram, learned senior counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 Election Commission, a person who has applied to the Scrutiny Committee for the verification of his Caste Certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refor, 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Judge Bench of this Court in In re The Kerala Education Bill, 1957, AIR 1958 SC 956 had occasion to consider the jurisdiction of High Court under Article 226 in reference to a provision in Kerala Educational Bill, 1957. Clause 33 of Kerala Education Bill provided:- 33. Courts not to grant injunction - Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act. 23. In exercise of power vested in him by Article 143(1), the President of India had referred to this Court four questions for consideration. Question No.4, which is relevant for the present case was to the following effect:- 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in contemplation, for it will be inapt to speak of the Constitution as a law for the time being in force . He-relies on the meaning of the word law appearing in Articles 2, 4, 32(3) and 367(1) of the Constitution where it must mean law enacted by a legislature. He also relies on the definition of Indian law in Section 3(29) of the General Clauses Act and submits that the word law in clause 33 must mean a law of the same kind as the Civil Procedure Code of 1908, that is to say, a law made by an appropriate legislature in exercise of its legislative function and cannot refer to the Constitution. We find ourselves in agreement with this contention of learned counsel for the State of Kerala. We are not aware of any difficulty - and none has been shown to us - in construing clause 33 as a provision subject to the overriding provisions of Article 226 of the Constitution and our answer to Question 4 must be in the negative. 26. What has been laid down by Constitution bench of this Court in above case makes it beyond any doubt that the power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. 17. That the power of judicial review is a basic structure of Constitution - is a concept which is no longer in issue. 31. This Court laid down in the above case that arbitrariness and malafide destroy the validity and efficacy of all orders passed by public authorities. This Court in the above case held that the jurisdiction of Article 226 is not even barred in election matter though it has to be sparingly exercised. This Court held that provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum. In paragraph 30, following was laid down:- 30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es an order of stay should be passed regard being had to the prohibition contained in Section 19(3)(c) of the 1988 Act. 36. Justice Nariman ultimately after referring the judgment of L. Chandra Kumar (supra) has set aside the conclusion of Delhi High Court in paragraph 36(d). The above judgment, thus, laid down that despite restraint in Section 19(3)(c) of Prevention of Corruption Act, the jurisdiction of the High Court to issue an interim order is not precluded. This Court in the above case has dealt with a situation when a statutory provision, i.e., Section 19(3)(c) of Prevention of Corruption Act creates a specific bar in passing a stay order. When despite the aforesaid statutory bar, High Court was held to have jurisdiction to pass an interim order, in the present case, we are concerned in a statutory scheme where there is no express or implied bar in passing an interim order by the High Court. 37. As per Section 5B, a candidate belonging to reserved category, who has made an application to the Scrutiny Committee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far as the jurisdiction of the High Courts under Article 226 of the Constitution - or of this Court under Article 32 - is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them. 39. Learned counsel for the appellant has laid great emphasis on the Full Bench Judgment of the Bombay High Court in Anant H. Ulahalkar and Ors. (supra). The three questions, which were referred before the Full Bench were as follows:- 2. The genesis of this reference is the order dated 11 August 2015 made in the present Writ Petition by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terminated retrospectively and he shall be disqualified for being a Councillor. Such retrospective termination of his election a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement and consequences of non-submission within the period prescribed is automatic retrospective termination of the election. The above pronouncement of law by Three Judge Bench is a binding precedent. The requirement of submission of certificate is a mandatory requirement failing which deemed termination of election automatically shall ensue. We, in the present case, are not to take any other view of the law as laid down in the above case. However, the point which has arisen for determination in these appeals is different i.e. as to whether High Court in exercise of jurisdiction under Article 226 can interdict the above consequences envisaged by Section 5B by passing an interim or final judgment. Before the Full Bench of the Bombay High Court as well as the Three Judge Bench of this Court in Shankar S/o Raghunath Devre (Patil) (supra), the issue as to whether the High Court has jurisdiction under Article 226 to stay the consequences of deeming provision was neither considered nor answered. We may clarify that in event there are no orders staying the consequences of deeming fiction as envisaged in proviso to Section 5B, the election shall automatically stand terminated retro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 47. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case, (1996) 3 SCC 88. In Nanjudaiah case, (1996) 10 SCC 619 the period was further stretched to have the time period run from date of service of the High Court s order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent. 50. In the above case, this Court had occasion to consider Section 6 of Land Acquisition Act. In the above case, Notification under Section 4 was issued before the commencement of Land Acquisition (Amendment) Act, 1984. The Notification under Section 6(1) was issued within the period of three years prescribed under proviso to Section 4 as it existed then. This Court held that the period prescribed is pre-emptive in nature and cannot be stretched. The observation as extracted above in paragraph 14 was made in the above context. The above judgment has no application in the issues, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution. (ii) The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens. The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found. (iii) The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute. (iv) When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 in Writ Petition No.145 of 2018 were not the orders beyond the jurisdiction of High Court under Article 226 of the Constitution. 53. We do not find any error in the impugned judgment of the High Court insofar as it continues the respondent No.1 in Civil Appeal Nos. 1429-1430 of 2020 till the decision of Scrutiny Committee is taken consequent to the setting aside of the report of the Scrutiny Committee by the impugned judgment. Insofar as the case of the respondent in Civil Appeal No. 1431 of 2020 is concerned, the High Court by the impugned judgment has not only set aside the order of the Scrutiny Committee but declared the respondent to be belonging to backward class, i.e., Koyari. 54. In the counter affidavit filed by the respondent No.1 in Civil Appeal Nos. 1429-1430 of 2020, the respondent No.1 has brought on record the order dated 30.09.2019 of the Caste Scrutiny Committee by which the Caste Scrutiny Committee has upheld the claim of respondent No.1 to belong to backward class. 55. In view of the foregoing discussions and conclusions, we do not find any error in the impugned judgment of the High Court dated 02.04.2019. There is no merit in the appeals. All the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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