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2020 (3) TMI 1373
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.... 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 filing Nomination paper. A candidate who has applied to Scrutiny Committee for the verification of his caste certificate before date of filing Nomination but who had not received the validity certificate on the date of filing Nomination has to submit an undertaking that he shall submit within a period of six months from the date of election, the validity certifi....
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....e respondent No.5 on the basis of Order passed by Scrutiny Committee. ii) The High Court by impugned judgment dated 02.04.2019 allowed the writ petition filed by respondent No.5 by setting aside the order dated 19.08.2017 passed by Caste Scrutiny Committee and declared that the respondent No.5 belongs to Koyari Caste. iii) In view of setting aside of the order of Caste Scrutiny Committee, it was held that respondent No.5 was entitled to continue in her seat since the effect of disqualification was postponed by an interim order passed by the High Court in the writ petition. iv) The appellant aggrieved by the judgment dated 02.04.2019 has come up in this appeal. 4. We have heard Shri Sudhanshu S. Choudhari, learned counsel for the appellant, in both the appeals. Shri C.A. Sundaram, learned senior counsel has appeared on behalf of Tulip Brian Miranda. Shri Sidharth Bhatnagar, senior Advocate appeared for respondent No.5. We have also heard learned counsel appearing for the State of Maharashtra. 5. Shri Sudhanshu S. Choudhari, learned counsel for the appellant submits that requirement of submission of Caste validity certificate by Caste Scrutiny Committee within period of one year....
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.... 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 election, the election shall be deemed to have been terminated retrospectively and the candidate shall be disqualified for being Councillor? (iii) Whether the interim order dated 18.08.2017 in Writ Petition No.2269 of 2017 staying the order dated 14.08.2017 of the Caste Scrutiny Committee with direction to respondent Nos. 2 to 4 not to take any action of disqualification as well as the final ju....
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....ns, 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 Certificate before the date of filing the nomination papers but who has not received the validity certificate on the date of filing of the nomination papers shall submit alongwith the nomination papers,- (i) a true copy of the application preferred by him to the Scrutiny Committee for issuance of the validity certificate or any other proof of having made such application to the Scrutiny Committee; and (ii) an underta....
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....arashtra Municipal Corporations Act, section 9A or section 51-1B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act,1965, as it stood prior to such date of commencement. 9. Any person, who has obtained the Caste Certificate and validity certificate but has not filed such certificate prior to the date of commencement of this Act, shall not be deemed to be disqualified under the provisions of the relevant Municipal law, if he submits such certificate within a period of fifteen days from the date of commencement of this Act: Provided that, the provisions of this section shall not apply where the State Election Commission has already prior to the date of commencement of this Act held elections to fill the vacancy of such person or declared the programme for holding of such election." 15. Now, reverting to the facts of case in Civil Appeal Nos.1429-1430 of 2020, the election was held and the respondent was declared elected on 23.02.2017 and as per Section 5B as existing at that time, the Caste Scrutiny Certificate verified by Caste Scrutiny Committee was to be submitted within six months i.e., by 22.08.2017. The Caste Scrutiny Committee rejected the ....
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....23rd February 2017. This Court, by interim order dated 19th August 2017 had granted protection and have put in abeyance the consequences flowing from invalidation of the claim of the petitioner. In light of the said interim order passed by us, the petitioner continued to hold the office. The claim of the petitioners has been found to be improperly rejected and we have quashed and set aside the said order and given a declaration to the effect that they belong to the caste which they claim and hence should continue to hold the said post. Pursuant to their election, in light of the said aforesaid position, the petitioners in Writ Petition Nos. 145/2018 and 3673/2018 are entitled to continue in their seats since the effect of disqualification was postponed by an interim order and we have now quashed and set aside the impugned order." 18. The validity of the interim order passed by the High Court dated 18.08.2017 as noted above and the final judgment dated 02.04.2019 are up for consideration before us. The similar issues have been raised in Civil Appeal No. 1431 of 2020, the consideration of Civil Appeal Nos. 1429-1431 of 2020 shall suffice to decide Civil Appeal No.1431 of 2020 also. ....
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....een superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of claims, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular claim." 21. The nature of jurisdiction exercised by the High Courts under Article 226 came for consideration by this Court in large number of cases. In Sangram Singh Vs. Election Tribunal Kotah and Another, AIR 1955 S.C. 425, Article 226 of the Constitution of India in reference to Section 105 of the Representation of the People Act,....
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....ant 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 State of Kerala submitted before this Court that the Constitution is the paramount law of the land, and nothing short of a constitutional amendment as provided for under the Constitution can affect any of the provisions of the Constitution, including Article 226. It was submitted that the power conferred upon High Courts under Article 226 of the Constitution is an over-riding power entitling them, under certain conditions and circumstances, to issue wr....
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....08, that is to say, a law made by an appropriate legislature in exercise of its legislative function and cannot refer to the Constitution. We find ourselves in agreement with this contention of learned counsel for the State of Kerala. We are not aware of any difficulty - and none has been shown to us - in construing clause 33 as a provision subject to the overriding provisions of Article 226 of the Constitution and our answer to Question 4 must be in the negative." 26. What has been laid down by Constitution bench of this Court in above case makes it beyond any doubt that the power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute. 27. Gajendragadkar, C.J. speaking for a Constitution Bench of this Court in Re: Under Article 143 of the Constitution of India, AIR 1965 SC 745 held that existence of judicial power in the High Court under Article 226 and this Court under Article 32 postulate the existence of a right in the citizen to move the Court otherwise the power conferred on the High Courts and this Court would be rendered vi....
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....B were held to be unconstitutional. In paragraph 99, Constitution Bench laid down following:- "99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution............................." 30. In Election Commission of India through Secretary Vs. Ashok Kumar and Others, (2000) 8 SCC 216, a Three Judge Bench had occasion to consider the jurisdiction of the High Court under Article 226 to entertain a petiti....
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....6 is not even barred in election matter though it has to be sparingly exercised. This Court held that provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum. In paragraph 30, following was laid down:- "30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case, (1978) 1 SCC 405). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles ev....
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....tion Act, 1988 held that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition before a High Court. In paragraph 52 and 54, following has been laid down:- "52. The question as to whether the inherent power of a High Court would be available to stay a trial under the Act necessarily leads us to an inquiry as to whether such inherent power sounds in constitutional, as opposed to statutory law. First and foremost, it must be appreciated that the High Courts are established by the Constitution and are courts of record which will have all powers of such courts, including the power to punish contempt of themselves (see Article 215). The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it. In an instructive passage by a Constitution Bench of this Court in Powers, Privileges and Immunities of State Legislatures, In re, Special Reference No. 1 of 1964, Gajendragadkar, C.J. held: (SCR p. 499 : AIR p. 789, para 138) "138. Besides, in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited j....
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....t 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 substituted by twelve months), failing which his election shall be deemed to have been terminated retrospectively. The second proviso to Section 5B creates a deeming fiction, which operates when a person failed to produce the Validity Certificate within a period of six months/twelve months from the date of his election. The present is a case where before expiry of period of six months from the date of election, i.e., 23.02.2017, the Caste Scrutiny Committee has rejected the claim of respondent and a writ p....
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....B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them." 39. Learned counsel for the appellant has laid great emphasis on the Full Bench Judgment of the Bombay High Court in Anant H. Ulahalkar and Ors. (supra). The three questions, which were referred before the Full Bench were as follows:- "2. The genesis of this reference is the order dated 11 August 2015 made in the present Writ Petition by the Division Bench (Coram: Naresh H. Patil & V.L. Achliya, JJ). This order takes cognizance of the aforesaid conflict and opines that the matter be placed before the Hon'ble Chief Justice to consider whether reference needs to be made to a Larger Bench. The order also notes that the following questions of law arise : "(i) Whether the time limit prescribed under section 9-A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, for submission of caste val....
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.... 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 and disqualification for being a Councillor would be automatic and validation of his caste claim after the stipulated period would not result in restoration of his election. The questions raised, stand answered accordingly." 41. The judgment of the Full Bench of Bombay High Court came for consideration before this Court in Shankar S/o Raghunath Devre (Patil) Vs. State of Maharashtra and Others, (2019) 3 SCC 220. This Court after noticing the above provision upheld the decision of the Full Bench of the Bombay Hig....
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....erent i.e. as to whether High Court in exercise of jurisdiction under Article 226 can interdict the above consequences envisaged by Section 5B by passing an interim or final judgment. Before the Full Bench of the Bombay High Court as well as the Three Judge Bench of this Court in Shankar S/o Raghunath Devre (Patil) (supra), the issue as to whether the High Court has jurisdiction under Article 226 to stay the consequences of deeming provision was neither considered nor answered. We may clarify that in event there are no orders staying the consequences of deeming fiction as envisaged in proviso to Section 5B, the election shall automatically stand terminated retrospectively but in the present case in the facts of both the appeals, the consequences of deeming fiction as contained in second proviso to Section 5B were stayed/interdicted by order of the High Court, hence the retrospective termination could not take place. 43. Shri Sudhanshu S. Choudhari, learned counsel for the appellant has also submitted that High Court was not empowered to continue the interim relief granted to the writ petitioners beyond a period of one year from the date of election as per the statutory scheme unde....
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....se 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. From the above preposition laid down by this Court, it is clear that such interim direction can be passed by the High Court under Article 226, which could have helped or aided the Court in granting main relief sought in the writ petition. In the present case, the decision of the Caste Scrutiny Committee having been challenged by the writ petitioners and the High Court finding prima facie substance in the submissions granted interim order, which ultimately fructified in final order setting aside the decision of....
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....ion 6(1), but also by a non-prescribed period. Same can never be the legislative intent." 50. In the above case, this Court had occasion to consider Section 6 of Land Acquisition Act. In the above case, Notification under Section 4 was issued before the commencement of Land Acquisition (Amendment) Act, 1984. The Notification under Section 6(1) was issued within the period of three years prescribed under proviso to Section 4 as it existed then. This Court held that the period prescribed is pre-emptive in nature and cannot be stretched. The observation as extracted above in paragraph 14 was made in the above context. The above judgment has no application in the issues, which have come for consideration in the present case. Present is not a case of any causes omissus, which is sought to be filled up by any kind of judicial interpretation. 51. Shri Choudhari has also placed reliance on K. Prabhakaran Vs. P. Jayarajan, (2005) 1 SCC 754 for the preposition that subsequent decision of setting aside the conviction would not have the effect of wiping out the disqualification, which did exist on the focal point dates. The decisive dates are the dates of election and the date of scrutiny of....
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....rdians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens. The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found. (iii) The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute. (iv) When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous. (v) It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case before us before th....