# BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS

- **Citation:** [2020] 8 S.C.R. 1080
- **Court:** Supreme Court of India
- **Decided:** 2020-03-19
- **Case number:** Civil Appeal Nos. 14291430 of 2020
- **Bench:** Ashok Bhushan, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/benedict-denis-kinny-v-tulip-brian-miranda-ors-34843
- **Pages:** 37

## Headnote

Constitution of India - Art. 226 - Mumbai Municipal
Corporation Act, 1888 - s. 5B - In one civil appeal, the respondent
and appellant contested the election on the seat of counsellor in
Mumbai Municipal Corporation reserved for backward class citizens
- s.5B of the 1888 Act required the candidate to submit caste validity
certificate on the date of filing nomination paper - It is provided in
the second proviso to s.5B that if a person fails to produce the
validity certificate within a period of six months (now twelve months)
from the date of election, the election shall be deemed to have been
terminated retrospectively and he shall be disqualified for being a
Counsellor - On 23.02.2017 respondent was declared elected -
The Scrutiny Committee by its order dated 14.08.2017 refused to
grant caste validity certificate in favour of the respondent - The
respondent filed writ petition challenging the order of the Scrutiny
Committee dated 14.08.2017 - The High Court passed an interim
order dated 18.08.2017 in favour of respondent by staying the order
dated 14.08.2017 and directed not to take any action of
disqualification against the respondent till the pendency of the writ
petition - Thereafter, the High Court quashed the order of the
Scrutiny Committee and remanded the matter for fresh consideration
- In another civil appeal, both the appellant and respondent no.5
contested election to Mumbai Municipal Corporation ward reserved
for backward class citizen - The respondent no.5 was declared
elected on 23.02.2017 - The Scrutiny Committee rejected the claim
of the respondent no.5 that she belongs to 'Koyari caste' - The
respondent no. 5 filed writ petition before the High Court - The
High Court passed interim order dated 22.08.2017 directing not to
take any coercive action against the respondent no. 5 - Later, the
High Court set aside the order passed by the Scrutiny Committee
and declared that the respondent no.5 belonged to the 'Koyari caste'
A
B
C
D
E
F
G
H
1081
- Whether the interim orders passed by the High Court in both the
civil appeals, directing not to take any coercive action against the
writ petitioners and allowing writ petitioners to continue on their
seats, were the orders beyond the jurisdiction of the High Court
u/Art. 226 and could not have been passed in view of the statutory
scheme of s. 5B - Held: The power u/Art. 226 of the Constitution
overrides any contrary provision in a statute and the power of the
High Court u/Art. 226 cannot be taken away or abridged by any
contrary provision in a statute - When a citizen has right to judicial
review against any decision of statutory authority, the High Court
in exercise of judicial review had every jurisdiction to maintain the
status quo so as to by lapse of time, the petition may not be
infructuous - The interim order can always be passed by a High
Court in exercise of writ jurisdiction to maintain the status quo in
aid of the relief claimed so that at the time of final decision of the
writ petition, the relief may not become infructuous - Further, s.5B
of the Mumbai Municipal Corporation Act does not oust the
jurisdiction of High Court u/Art.226 of the Constitution - There is
no fetter in the jurisdiction of the High Court in granting an interim
order in a case where caste claim of the respondents was illegally
rejected before the expiry of period of six months and the High
Court granted the interim order before the expiry of the period of
six months, as then prescribed - In the instant case, the deeming
fiction under s.5B of retrospective termination of the election could
not come in operation due to the interim order passed by the High
Court - The interim orders passed by the High Court were not beyond
the jurisdiction u/Art. 226 of the Constitution.
Dismissing the appeals, the Court
HELD: 1. The following points arise for consideration:-
(i) Whether the jurisdiction of the High Court under Article
226 of the Constitution of India is ousted due to statutory scheme
of Sect

## Text

_Characters 0–39,895 of 84,907. This is a partial read: ask again with offset=39895 for what follows._

A
B
C
D
E
F
G
H
1080
SUPREME COURT REPORTS
[2020] 8 S.C.R.
1080
[2020] 8 S.C.R. 1080
BENEDICT DENIS KINNY
v.
TULIP BRIAN MIRANDA & ORS.
(Civil Appeal Nos.1429-1430/2020)
MARCH 19, 2020
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Constitution of India - Art. 226 - Mumbai Municipal
Corporation Act, 1888 - s. 5B - In one civil appeal, the respondent
and appellant contested the election on the seat of counsellor in
Mumbai Municipal Corporation reserved for backward class citizens
- s.5B of the 1888 Act required the candidate to submit caste validity
certificate on the date of filing nomination paper - It is provided in
the second proviso to s.5B that if a person fails to produce the
validity certificate within a period of six months (now twelve months)
from the date of election, the election shall be deemed to have been
terminated retrospectively and he shall be disqualified for being a
Counsellor - On 23.02.2017 respondent was declared elected -
The Scrutiny Committee by its order dated 14.08.2017 refused to
grant caste validity certificate in favour of the respondent - The
respondent filed writ petition challenging the order of the Scrutiny
Committee dated 14.08.2017 - The High Court passed an interim
order dated 18.08.2017 in favour of respondent by staying the order
dated 14.08.2017 and directed not to take any action of
disqualification against the respondent till the pendency of the writ
petition - Thereafter, the High Court quashed the order of the
Scrutiny Committee and remanded the matter for fresh consideration
- In another civil appeal, both the appellant and respondent no.5
contested election to Mumbai Municipal Corporation ward reserved
for backward class citizen - The respondent no.5 was declared
elected on 23.02.2017 - The Scrutiny Committee rejected the claim
of the respondent no.5 that she belongs to 'Koyari caste' - The
respondent no. 5 filed writ petition before the High Court - The
High Court passed interim order dated 22.08.2017 directing not to
take any coercive action against the respondent no. 5 - Later, the
High Court set aside the order passed by the Scrutiny Committee
and declared that the respondent no.5 belonged to the 'Koyari caste'
A
B
C
D
E
F
G
H
1081
- Whether the interim orders passed by the High Court in both the
civil appeals, directing not to take any coercive action against the
writ petitioners and allowing writ petitioners to continue on their
seats, were the orders beyond the jurisdiction of the High Court
u/Art. 226 and could not have been passed in view of the statutory
scheme of s. 5B - Held: The power u/Art. 226 of the Constitution
overrides any contrary provision in a statute and the power of the
High Court u/Art. 226 cannot be taken away or abridged by any
contrary provision in a statute - When a citizen has right to judicial
review against any decision of statutory authority, the High Court
in exercise of judicial review had every jurisdiction to maintain the
status quo so as to by lapse of time, the petition may not be
infructuous - The interim order can always be passed by a High
Court in exercise of writ jurisdiction to maintain the status quo in
aid of the relief claimed so that at the time of final decision of the
writ petition, the relief may not become infructuous - Further, s.5B
of the Mumbai Municipal Corporation Act does not oust the
jurisdiction of High Court u/Art.226 of the Constitution - There is
no fetter in the jurisdiction of the High Court in granting an interim
order in a case where caste claim of the respondents was illegally
rejected before the expiry of period of six months and the High
Court granted the interim order before the expiry of the period of
six months, as then prescribed - In the instant case, the deeming
fiction under s.5B of retrospective termination of the election could
not come in operation due to the interim order passed by the High
Court - The interim orders passed by the High Court were not beyond
the jurisdiction u/Art. 226 of the Constitution.
Dismissing the appeals, the Court
HELD: 1. The following points arise for consideration:-
(i) Whether the jurisdiction of the High Court under Article
226 of the Constitution of India is ousted due to statutory scheme
of Section 5B of the Mumbai Municipal Corporation Act?
(ii) Whether High Court had no jurisdiction to pass an
interim or final order, the effect of which is to interdict the statutory
fiction under Section 5B to the effect that in event the Caste
Scrutiny Certificate is not submitted within six months (now twelve
months) from the date of election, the election shall be deemed
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
A
B
C
D
E
F
G
H
1082
SUPREME COURT REPORTS
[2020] 8 S.C.R.
to have been terminated retrospectively and the candidate shall
be disqualified for being Councillor?
(iii) Whether the interim order dated 18.08.2017 in Writ
Petition No.2269 of 2017 staying the order dated 14.08.2017 of
the Caste Scrutiny Committee with direction to respondent Nos.
2 to 4 not to take any action of disqualification as well as the final
judgment dated 02.04.2019 remanding the matter to the Caste
Scrutiny Committee during which writ petitioner was held to be
entitled to continue, were the orders beyond jurisdiction of the
High Court under Article 226 and could not have been passed in
view of the Statutory Scheme of Section 5B?
(iv) Whether the interim order of the High Court dated
22.08.2017 passed in Writ Petition No. 145 of 2018 directing the
respondents not to take any coercive action against the writ
petitioner on the basis of the Caste Scrutiny Committee's order
as well as the final judgment of the High Court dated 02.04.2019
allowing the writ petition and holding that writ petitioner was
entitled to continue on her seat, were the orders beyond
jurisdiction of the High Court under Article 226 and could not
have been passed in view of the Statutory Scheme delineated in
Section 5B? [Para 10][1090-B-G]
2. In the facts of the present case, the deeming fiction of
retrospective termination of the election could not come in
operation due to the interim order passed by the High Court,
hence deeming fiction under Section 5B second proviso never
came into existence to retrospectively terminate the election of
the respondent. The submission of the appellant that interim
order of the High Court could not have been allowed to continue
beyond the period of six months/one year cannot be accepted.
No such fetter can be read in the jurisdiction of the High court or
in the interim order passed by the High Court in exercise of the
jurisdiction under Article 226 nor any kind of fetter can be read
from any State enactment. [Para 51][1114-B-D]
3. This Court arrives at following conclusions:-
(i) The power of judicial review vested in the High Courts
under Article 226 and this Court under Article 32 of the
Constitution is an integral and essential feature of the
A
B
C
D
E
F
G
H
1083
Constitution and is basic structure of our Constitution. The
jurisdiction under Article 226 is original, extraordinary and
discretionary. The look out of the High Court is to see whether
injustice has resulted on account of any decision of a constitutional
authority, a tribunal, a statutory authority or an authority within
meaning of Article 12 of the Constitution.
(ii) The Courts are guardians of the rights and liberties of
the citizen and they shall fail in their responsibility if they abdicate
their solemn duty towards the citizens. The scope of Article 226
is very wide and can be used to remedy injustice wherever it is
found.
(iii) The power under Article 226 of the Constitution
overrides any contrary provision in a Statute and the power of
the High Court under Article 226 cannot be taken away or abridged
by any contrary provision in a Statute.
(iv) When a citizen has right to judicial review against any
decision of statutory authority, the High Court in exercise of
judicial review had every jurisdiction to maintain the status quo
so as to by lapse of time, the petition may not be infructuous.
The interim order can always be passed by a High Court in
exercise of writ jurisdiction to maintain the status quo in aid of
the relief claimed so that at the time of final decision of the writ
petition, the relief may not become infructuous.
(v) It is true that requirement of submission of Caste Validity
Certificate within a period of one year under Section 5B of Mumbai
Municipal Corporation Act is mandatory requirement but in the
facts of the case before this Court before the expiry of the period
of six month, the Caste Scrutiny Committee had illegally rejected
the claim necessitating filing of writ petition by aggrieved persons
in which writ petition the interim relief was granted by the High
Court. The power of the High Court to grant an interim relief in
appropriate case cannot be held to be limited only for a period of
one year, which was period envisaged in Section 5B for submission
of the Caste Validity Certificate. No such fetter on the power of
the High Court can be read by virtue of provision of Section 5B.
(vi) There is no fetter in the jurisdiction of the High Court
in granting an interim order in a case where caste claim of the
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
A
B
C
D
E
F
G
H
1084
SUPREME COURT REPORTS
[2020] 8 S.C.R.
respondents was illegally rejected before the expiry of period of
six months and the High Court granted the interim order before
the expiry of the period of six months, as then prescribed.
(vii) In the facts of the present case, the deeming fiction
under Section 5B of retrospective termination of the election
could not come in operation due to the interim order passed by
the High Court. [Para 51][1114-D-H; 1115-A-F]
4. This Court, for the discussion and conclusions as above,
answer the points formulated in following manner: -
(i) Section 5B of the Mumbai Municipal Corporation Act
does not oust the jurisdiction of High Court under Article 226 of
the Constitution.
(ii) The High Court in exercise of jurisdiction under Article
226 of the Constitution can pass an order interdicting the legal
fiction as contemplated under second proviso to Section 5B,
provided the legal fiction had not come into operation.
(iii) The interim order dated 18.08.2017 in Writ Petition
No.2269 of 2017 as well as the impugned final judgment dated
02.04.2019 were not beyond the jurisdiction of High Court under
Article 226 of the Constitution.
(iv) The interim order dated 22.08.2017 and final judgement
dated 02.04.2019 in Writ Petition No.145 of 2018 were not the
orders beyond the jurisdiction of High Court under Article 226
of the Constitution. [Para 52][1115-G-H; 1116-A-C]
In re The Kerala Education Bill, 1957, AIR 1958 SC
956 : [1959] SCR 995; Mafatlal Industries Ltd. and
Others v. Union of India and Others, (1997) 5 SCC
536 : [1996] 10 Suppl. SCR 585 - followed.
Sangram Singh v. Election Tribunal Kotah and Another,
AIR 1955 S.C. 425 : [1955] SCR 1; Re: Under Article
143 of the Constitution of India, AIR 1965 SC 745 :
[1965] SCR 413 ; L. Chandra Kumar v. Union of India
and Others, (1997) 3 SCC 261 : [1997] 2 SCR 1186;
Election Commission of India through Secretary v. Ashok
A
B
C
D
E
F
G
H
1085
Kumar and Others, (2000) 8 SCC 216 : [2000] 3 Suppl.
SCR 34; Asian Resurfacing of Road Agency Private
Limited and Another v. Central Bureau of Investigation,
(2018) 16 SCC 299 : [2018] 2 SCR 1045 - relied on.
Padma Sundara Rao (Dead) and Others v. State of T.N.
and Others, (2002) 3 SCC 533 : [2002] 2 SCR 383; K.
Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 :
[2005] 1 SCR 296 - held inapplicable.
Shankar S/o Raghunath Devre (Patil) v. State of
Maharashtra and Others, (2019) 3 SCC 220; The State
of Orissa v. Madan Gopal Rungta, [1952] SCR 28: AIR
1952 SC 12; State of U.P. and Others v. Harish Chandra
and Others, (1996) 9 SCC 309 : [1996] 1 Suppl. SCR
260; Bihar Public Service Commission and Another v.
Dr. Shiv Jatan Thakur and Others, (1994) Supp. 3 SCC
220 : [1994] 2 Suppl. SCR 94 - referred to.
Anant H. Ulahalkar and Ors. v. Chief Election
Commissioner and Ors., 2017 (1) Bom CR 230 -
referred to.
Case Law Reference
(2019) 3 SCC 220
referred to
Para 5
[1955] SCR 1
relied on
Para 21
[1959] SCR 995
followed
Para 22
[1965] SCR 413
relied on
Para 27
[1997] 2 SCR 1186
relied on
Para 28
[2000] 3 Suppl. SCR 34
relied on
Para 30
[2018] 2 SCR 1045
relied on
Para 32
[1996] 10 Suppl. SCR 585
followed
Para 38
[1952] SCR 28
referred to
Para 44
[1996] 1 Suppl. SCR 260
referred to
Para 45
[1994] 2 Suppl. SCR 94
referred to
Para 46
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
A
B
C
D
E
F
G
H
1086
SUPREME COURT REPORTS
[2020] 8 S.C.R.
[2002] 2 SCR 383
held inapplicable
Para 49
[2005] 1 SCR 296
held inapplicable
Para 51
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 14291430 of 2020.
From the Judgment and Order dated 02.04.2019 in WP No. 3673/
2018 and Order dated 02.05.2019 in Review Petition (L) No. 20/2019 of
High Court of Judicature at Bombay.
With
C. A. No. 1431/2020
C.A. Sundaram, Sidharth Bhatnagar, Sr. Advs., Sudhanshu
S. Choudhari, Chintamani Bhangoji, Yogesh Kolte, Mahesh P. Shinde,
Shakul R. Ghatole, Dilip Annasaheb Taur, Pramod Gokul Kathane, Amol
V. Deshmukh, Abhishek Gupta, Prahalad Paranjape, Mehul M. Gupta,
Aditya Sidhra, R. P. Gupta, Ashish Wad, Mrs. Jayashree Wad, Sidharth
Mahajan, Ms. Sukriti Jaggi, Ajeyo Sharma, M/s. J S Wad And Co., Arun
R. Pedneker, Hitesh Kumar Sharma, Sachin Patil, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. The question which has arisen in these appeals is as to whether
the High Court in exercise of its Constitutional jurisdiction conferred
under Article 226 of Constitution of India can pass an order interdicting
a legal fiction engrafted in a State enactment.
2. These two appeals have been filed against common judgment
dated 02.04.2019 passed in Writ Petitions filed by the contesting
respondent. Order dated 02.05.2019 in Review Petition No. 20 of 2019
filed in Writ Petition No.3673 of 2018 has also been challenged.
3. Brief facts giving rise to these appeals are: -
A. Civil Appeal NoS.1429-1430/2020
 Benedict Denis Kinny versus Tulip Brian Miranda &ors.
i)
The respondent as well as appellant contested the election on
the seat of Counsellor in Mumbai Municipal Corporation
reserved for Backward class citizens. On 23.02.2017, the
A
B
C
D
E
F
G
H
1087
respondent No.1 was declared elected. Section 5B of Mumbai
Municipal Corporation Act required the candidate to submit
caste validity certificate on the date of filing Nomination paper.
A candidate who has applied to Scrutiny Committee for the
verification of his caste certificate before date of filing
Nomination but who had not received the validity certificate
on the date of filing Nomination has to submit an undertaking
that he shall submit within a period of six months from the
date of election, the validity certificate issued by the Scrutiny
Committee.
ii) It was further provided that if a person fails to produce the
validity certificate within a period of six months from the date
of election, that election shall be deemed to have been
terminated retrospectively and he shall be disqualified for being
a Counsellor. The period of six months was amended to be
twelve months by Amendment Act, 2018.
iii) The Scrutiny Committee vide its order dated 14.08.2017 held
that respondent No.1 do not belong to East Indian Category.
Therefore, it refused to grant Caste validity certificate in favour
of the respondent. Writ Petition No.2269 of 2017 was filed by
respondent challenging order of the Caste Scrutiny Committee
dated 14.08.2017.
iv) The High Court vide order dated 18.08.2017 passed an interim
order in favour of respondent No.1 in terms of Prayer clauses
(b) and (c). The High Court vide its judgment and order dated
02.04.2019 allowed the writ petition filed by respondent No.1
and quashed the order of the Scrutiny Committee dated
14.08.2017 and remanded the matter to Scrutiny Committee
for fresh consideration.
v) The High Court by the judgment dated 02.04.2019 also directed
that the respondent No.1 is entitled to continue in her seat,
since the effect of disqualification was postponed by interim
order and the impugned order of the Caste Scrutiny Committee
has been set aside.
vi) Aggrieved by the judgment and order dated 02.04.2019,
Review Petition(L) No.20 of 2019 was filed by the appellant
which too has been rejected by the High Court by the order
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1088
SUPREME COURT REPORTS
[2020] 8 S.C.R.
dated 02.05.2019. Both the orders dated 02.04.2019 and
02.05.2019 have been challenged by the appellant in this appeal.
B. Civil Appeal No.1431/2020
Smt. Prachi Prasad Parab versus The State of Maharashtra
and ors.
i) Both, the appellant and respondent No.5, Sudha Shambu Nath
Singh contested election to the Mumbai Municipal Corporation
held from ward No.67 which was reserved for Backward class
citizen. The respondent No.5 was declared elected on
23.02.2017. The Scrutiny Committee rejected the claim of
respondent No.5 that she belongs to 'Koyari' caste which is
included in the category of OBC in the State of Maharashtra
vide order dated 19.08.2017. The respondent No.5 filed a Writ
Petition No.145 of 2017 in which interim order dated 22.08.2017
was passed directing the respondent not to take any coercive
action against the respondent No.5 on the basis of Order passed
by Scrutiny Committee.
ii) The High Court by impugned judgment dated 02.04.2019
allowed the writ petition filed by respondent No.5 by setting
aside the order dated 19.08.2017 passed by Caste Scrutiny
Committee and declared that the respondent No.5 belongs to
Koyari Caste.
iii) In view of setting aside of the order of Caste Scrutiny
Committee, it was held that respondent No.5 was entitled to
continue in her seat since the effect of disqualification was
postponed by an interim order passed by the High Court in the
writ petition.
iv) The appellant aggrieved by the judgment dated 02.04.2019 has
come up in this appeal.
4. We have heard Shri Sudhanshu S. Choudhari, learned counsel
for the appellant, in both the appeals. Shri C.A. Sundaram, learned senior
counsel has appeared on behalf of Tulip Brian Miranda. Shri Sidharth
Bhatnagar, senior Advocate appeared for respondent No.5. We have
also heard learned counsel appearing for the State of Maharashtra.
5. Shri Sudhanshu S. Choudhari, learned counsel for the appellant
submits that requirement of submission of Caste validity certificate by
A
B
C
D
E
F
G
H
1089
Caste Scrutiny Committee within period of one year from the date of
election is a mandatory requirement as held by the Full-Bench of Bombay
High Court in Anant H. Ulahalkar and Ors. Vs. Chief Election
Commissioner and Ors., 2017 (1) BomCR 230, which has received
approval by this Court in case of Shankar S/o Raghunath Devre (Patil)
Vs. State of Maharashtra and Others, (2019) 3 SCC 220. The
contesting respondent having failed to submit Caste Scrutiny certificate
within one year from 23.02.2017, their election as counsellor
retrospectively stands terminated and High Court committed error in
allowing them to continue on their seat.
6. It is submitted that High Court could not have extended the
period beyond one year to produce the Caste Validity certificate. The
provisions of Section 5B of Mumbai Municipal Corporation being
mandatory, it has to be strictly construed and in no case the said period
could have been extended by order of the High Court in exercise of
jurisdiction under Article 226 of Constitution of India. The High Court
could not have passed any interim order against the statutory provision
as contained in Section 5B.
7. Shri C.A. Sundaram, learned senior counsel appearing for the
respondent contends that Judicial remedy cannot be taken away by the
statutory provisions. The right of the respondent to judicial remedy is a
Fundamental Right. The High Court passed an order within the time and
High Court in Writ Petition was considering a wrong order against which
Interim order was rightly passed to protect right of the respondent so
that whole exercise may not be rendered infructuous.
8. Alternately, it is submitted that in pursuance of the remand
order now subsequently the Caste Scrutiny Committee has verified the
caste of the respondent and the order shall relate back to the date when
it was initially passed i.e. on 14.08.2017.
9. Learned counsel appearing for respondent No.5 in Civil Appeal
No.1431/2020 contends that jurisdiction under Article 226 cannot be
curtailed by any statutory provision. The respondent No.5 cannot be left
remedy less. It has been held that there is an inherent power in the High
Court to pass interim orders even in Election matters. The final order of
the High Court must relate back to the date of the impugned order before
the High Court. The time taken in the adjudication before the courts
ought not to be used against the respondent No.5. The interim order
granted by the High Court was to protect the rights of respondent No.5
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1090
SUPREME COURT REPORTS
[2020] 8 S.C.R.
during pendency of the writ petition so that in event the wrong order
passed is set aside, the respondent No.5 may not be put to irreparable
loss.
10. From the submissions of learned counsel for the parties and
pleadings on record following points arise for consideration:-
(i)
Whether the jurisdiction of the High Court under Article 226
of the Constitution of India is ousted due to statutory Scheme
of Section 5B of the Mumbai Municipal Corporation Act?
(ii) Whether High Court had no jurisdiction to pass an interim or
final order, the effect of which is to interdict the statutory
fiction under Section 5B to the effect that in event the Caste
Scrutiny Certificate is not submitted within six months (now
twelve months) from the date of election, the election shall
be deemed to have been terminated retrospectively and the
candidate shall be disqualified for being Councillor?
(iii) Whether the interim order dated 18.08.2017 in Writ Petition
No.2269 of 2017 staying the order dated 14.08.2017 of the
Caste Scrutiny Committee with direction to respondent Nos.2
to 4 not to take any action of disqualification as well as the
final judgment dated 02.04.2019 remanding the matter to the
Caste Scrutiny Committee during which writ petitioner was
held to be entitled to continue,were the orders beyond
jurisdiction of the High Court under Article 226 and could not
have been passed in view of the Statutory Scheme of Section
5B?
(iv) Whether the interim order of the High Court dated 22.08.2017
passed in Writ Petition No. 145 of 2018directing the
respondents not to take any coercive action against the writ
petitioner on the basis of the Caste Scrutiny Committee's
order as well as the final judgment of the High Court dated
02.04.2019 allowing the writ petition and holding that writ
petitioner was entitled to continue on her seat, were the orders
beyond jurisdiction of the High Court under Article 226 and
could not have been passed in view of the Statutory Scheme
delineated in Section 5B?
11. Before we proceed to consider the respective submissions of
the learned counsel for the parties on the points as noted above, we may
A
B
C
D
E
F
G
H
1091
first look into the relevant Constitutional and statutory provisions governing
the field.
12. By the Constitution (Seventy-fourth Amendment) Act, 1992,
Part IXA "The Municipalities" have been inserted in the Constitution.
Article 243T provides for reservation of seats in a municipality. In
consequence of Constitutional (Seventy-fourth) Amendment, the
provisions of the Mumbai Municipal Corporation Act, 1888 were amended
by inserting Section 5A by Maharashtra Act No. 41 of 1994 providing
for reservation of seats. Section 5B was inserted by Maharashtra Act
No.25 of 2006 w.e.f. 19.08.2006 providing for "person contesting election
for reserved seat to submit Caste Certificates and Validity Certificate".
The provision of Section 5B were deleted by Maharashtra Act No.13 of
2008 but were again re-inserted w.e.f. 08.10.2012 by Maharashtra Act
No.21 of 2012. By Maharashtra Act No.13 of 2015, the expression
"before 31.12.2013 came to be substituted by the expression before
31.12.2017", which came into effect w.e.f. 01.04.2015. At the time,
when the election in question was held,following provision of Section 5B
was in force:-
"5B. Person contesting election for reserved seats to submit
Caste Certificate and Validity Certificate:- Every person
desirous of contesting election to a seat reserved for the Scheduled
Castes, Scheduled Tribes, or, as the case may be, Backward Class
of Citizens, shall be required to submit, alongwith the nomination
paper, Caste Certificate issued by the Competent Authority and
the Validity Certificate issued by the Scrutiny Committee in
accordance with the provisions of the Maharashtra Scheduled
Castes, Scheduled Tribes, De-notified Tribes (VimuktaJatis),
Nomadic Tribes, Other Backward Classes and Special Backward
Category (Regulation of Issuance and Verification of) Caste
Certificate Act, 2000 (Nag, XXIII of 2001).
Provided that for the General or bye-elections for which
the last date of filing of nomination falls on or before the 31st
December, 2017, in accordance with the election programme
declared by the State Election Commission, a person who has
applied to the Scrutiny Committee for the verification of his Caste
Certificate before the date of filing the nomination papers but
who has not received the validity certificate on the date of filing
of the nomination papers shall submit alongwith the nomination
papers,-
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1092
SUPREME COURT REPORTS
[2020] 8 S.C.R.
(i)
a true copy of the application preferred by him to the
Scrutiny Committee for issuance of the validity certificate
or any other proof of having made such application to
the Scrutiny Committee; and
(ii)
an undertaking that he shall submit, within a period of
six months from the date of his election, the validity
certificate issued by the Scrutiny Committee;
Provided further that, if the person fails to produce the
validity certificate within a period of six months from the date of
his election, his election shall be deemed to have been terminated
retrospectively and he shall be disqualified for being a Councillor."
13. A further amendment was made in Section 5B by Maharashtra
Act No.LXV of 2018. In Section 5B of the Mumbai Municipal Corporation
Act, following amendments were made:-
"2. In section 5B of the Mumbai Municipal Corporation Act
(hereinafter in this Chapter referred to as "Mumbai Corporation
Act"),-
(a) in the first proviso, in clause (ii), for the words "six
months" the words "twelve months" shall be substituted and shall
be deemed to have been substituted with effect from 7th April
2015;
(b) in the second proviso, for the words "six months" the
words "twelve months" shall be substituted and shall be deemed
to have been substituted with effect from 7th April 2015;
(c) after the second proviso, the following proviso shall be
added, namely:-
"Provided also that, in respect of the undertaking filed by
any person under clause (ii) of the first proviso, before the date of
commencement of the Mumbai Municipal Corporation, the
Maharashtra Municipal Corporations and the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
(Third Amendment) Act, 2018, the period of "six months" specified
in such undertaking shall be deemed to have been substituted as
"twelve months".".
A
B
C
D
E
F
G
H
1093
14. Two more provisions of Maharashtra Act No. LXV of 2018
needs to be noted, which are contained in Chapter V "Miscellaneous",
i.e., Sections 8 and 9, which are to the following effect:-
"8. Nothing in this Act shall affect the elections conducted by the
State Election Commission for conducting the elections or any
programme declared by it therefor, prior to the date of
commencement of the Mumbai Municipal Corporation, the
Maharashtra Municipal Corporations and the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
(Third Amendment) Act, 2018, for filling up the resultant vacancy
in view of the provisions of section 5B or sub-section (2A) of
section 37 of the Mumbai Municipal Corporation Act, section 5B
or sub-section (1B) of section 19 of the Maharashtra Municipal
Corporations Act, section 9A or section 51-1B of the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
Act,1965, as it stood prior to such date of commencement.
9. Any person, who has obtained the Caste Certificate and validity
certificate but has not filed such certificate prior to the date of
commencement of this Act, shall not be deemed to be disqualified
under the provisions of the relevant Municipal law, if he submits
such certificate within a period of fifteen days from the date of
commencement of this Act:
Provided that, the provisions of this section shall not apply
where the State Election Commission has already prior to the
date of commencement of this Act held elections to fill the vacancy
of such person or declared the programme for holding of such
election."
15. Now, reverting to the facts of case in Civil Appeal Nos.14291430 of 2020, the election was held and the respondent was declared
elected on 23.02.2017 and as per Section 5B as existing at that time, the
Caste Scrutiny Certificate verified by Caste Scrutiny Committee was to
be submitted within six months i.e., by 22.08.2017. The Caste Scrutiny
Committee rejected the claim of respondent by order dated 14.08.2017,
which was challenged by filing a Writ Petition No. 2269 of 2017 before
he Bombay High Court. On 18.08.2017Bombay High Court granted
interim order in terms of prayer clause (b)&(c) of the writ petition.
Paragraph 5 of the interim order dated 18.08.2017 is to the following
effect:-
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1094
SUPREME COURT REPORTS
[2020] 8 S.C.R.
"5. In that view of the matter, issue notice, returnable after two
weeks. In the meantime, there shall be ad-interim relief in terms
of prayer clauses (b) and (c)."
16. Prayers (b) and (c) in the writ petition were to the following
effect:-
"(b) Pending the hearing and final disposal of the present petition,
this Hon'ble Court may be please to stay the effect, operation
and implementation of the impugned judgment and award dated
14/08/2017 passed by the Respondent No.5.
(c) Pending the hearing and final disposal of the present petition,
this Hon'ble Court may be please to direct the respondent
No.2 and 4 not to take any action of dis-qualification based
on the impugned judgment and award dated 14/08/2017 passed
by the Respondent No.5"
17. The effect of the interim order dated 18.08.2017 was that the
respondent Nos.2 and 4 to the writ petition were restrained from taking
any action of dis-qualification based on the order dated 14.08.2017 of
the Caste Scrutiny Committee. The respondent thereafter due to stay of
disqualification continued to hold his office. The writ petition was finally
decided by the Bombay High Court on 02.04.2019. The High Court held
that order of the Scrutiny Committee dated 14.08.2017 rejecting the
claim of the respondent is unsustainable. The writ petition was allowed
and the matter was remanded to the Scrutiny Committee for
reconsideration. High Court vide its judgment dated 02.04.2019 also took
the view that since interim order was granted protecting the elected
candidate, keeping in abeyance the consequences flowing from
invalidation of the claim, they were entitled to continue in their seats. In
paragraph 57 of the judgment, following has been held:-
"57. ..................................The question is only about the
two petitioners i.e. in Writ Petition Nos. 145/2018 and 3673/2018
where we have allowed the writ petition and have quashed and
set aside the order passed by the Scrutiny Committee. The elections
to the Municipal Corporation were held in February 2017 and the
result came to be declared on 23rdFebruary 2017. This Court, by
interim order dated 19thAugust 2017 had granted protection and
have put in abeyance the consequences flowing from invalidation
of the claim of the petitioner. In light of the said interim order
A
B
C
D
E
F
G
H
1095
passed by us, the petitioner continued to hold the office. The claim
of the petitioners has been found to be improperly rejected and
we have quashed and set aside the said order and given a
declaration to the effect that they belong to the caste which they
claim and hence should continue to hold the said post. Pursuant to
their election, in light of the said aforesaid position, the petitioners
in Writ Petition Nos. 145/2018 and 3673/2018 are entitled to
continue in their seats since the effect of disqualification was
postponed by an interim order and we have now quashed and set
aside the impugned order."
18. The validity of the interim order passed by the High Court
dated 18.08.2017 as noted above and the final judgment dated 02.04.2019
are up for consideration before us. The similar issues have been raised
in Civil Appeal No. 1431 of 2020, the consideration of Civil Appeal Nos.
1429-1431 of 2020 shall suffice to decide Civil Appeal No.1431 of 2020
also.
19. Whether the interim order of the High Court dated 18.08.2017
could have been continued the respondent -Tulip Brian Miranda on her
seat even though six months period prescribed in Section 5B for submitting
Caste Scrutiny Certificate came to an end on 22.08.2017 and whether
the election of respondent shall stand retrospectively terminated on
22.08.2017 and further judgment dated 02.04.2019 could not have allowed
the respondent to continue on her seat despite expiry of period of one
year, which was substituted in place of six months by Maharashtra Act
No. LXV of 2018. These are the various aspects, which need to be
answered in these appeals.
20. We need to first notice the nature and extent of the jurisdiction
of the High Court under Article 226 of the Constitution of India. The
power of judicial review vested in the High Courts under Article 226 and
this Court under Article 32 of the Constitution is an integral and essential
feature of the Constitution and is basic structure of our Constitution.
The jurisdiction under Article 226 is original, extraordinary and
discretionary. The look out of the High Court is to see whether injustice
has resulted on account of any decision of a constitutional authority, a
statutory authority, a tribunal or an authority within meaning of Article
12 of the Constitution. The judicial review is designed to prevent cases
of abuse of power or neglect of a duty by the public authority. The
jurisdiction under Article 226 is used for enforcement of various rights
BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1096
SUPREME COURT REPORTS
[2020] 8 S.C.R.
of the public or to compel public/statutory authorities to discharge the
public functions entrusted on them. The Courts are guardians of the
rights and liberties of the citizen and they shall fail in their responsibility
if they abdicate their solemn duty towards the citizens. The scope of
Article 226 is very wide and can be used to remedy injustice wherever
it is found. The High Court and Supreme Court are the Constitutional
Courts, which have been conferred right of judicial review to protect the
fundamental and other rights of the citizens. Halsbury's Laws of England,
Fifth Edition, Volume 24 dealing with the nature of the jurisdiction of
superior and inferior courts stated that no matter is deemed to be beyond
the jurisdiction of a superior court unless it is expressly shown to be so.
In paragraph 619, Halsbury's Laws of England States:-
"The chief distinctions between superior and inferior courts
are found in connection with jurisdiction. Prima facie, no
matter is deemed to be beyond the jurisdiction of a superior
court unless it is expressly shown to be so, while nothing is
within the jurisdiction of an inferior court unless it is expressly
shown on the face of the proceedings that the particular matter
is within the cognizance of the particular court. An objection
to the jurisdiction of one of the superior courts of general
jurisdiction must show what other court has jurisdiction, so
as to make it clear that the exercise by the superior court of
its general jurisdiction is unnecessary. The High Court, for
example, is a court of universal jurisdiction and
superintendency in certain classes of claims, and cannot be
deprived of its ascendancy by showing that some other court
could have entertained the particular claim."
21. The nature of jurisdiction exercised by the High Courts under
Article 226 came for consideration by this Court in large number of
cases. In Sangram Singh Vs. Election Tribunal Kotah and Another,
AIR 1955 S.C. 425, Article 226 of the Constitution of India in reference
to Section 105 of the Representation of the People Act, 1951 came for
consideration. Section 105 of the Representation of People Act provided
that "every order of the Tribunal made under this Act (Representation
of People Act) shall be final and conclusive". Argument was raised in
the above case that neither the High Court nor the Supreme Court can
itself transgress the law in trying to set right what it considers is an error
of law on the part of the Court or Tribunal whose records are under
A
B
C
D
E
F
G
H
1097
consideration. It was held that jurisdiction of the High Court remains to
its fullest extent despite Section 105. This Court also held that jurisdiction
of the High Court in Article 226 and under Article 136 conferred on this
Court cannot be taken away by a legislative device. In paragraph 13,
following has been laid down:-
"13. The jurisdiction which Articles 226 and 136 confer entitles
the High Courts and this Court to examine the decisions of all
tribunals to see whether they have acted illegally. That jurisdiction
cannot be taken away by a legislative device that purports to confer
power on a tribunal to act illegally by enacting a statute that its
illegal acts shall become legal the moment the tribunal chooses to
say they are legal. The legality of an act or conclusion is something
that exists outside and apart from the decision of an inferior tribunal.
It is a part of the law of the land which cannot be finally
determined or altered by any tribunal of limited jurisdiction. The
High Courts and the Supreme Court alone can determine what
the law of the land is vis-a-vis all other courts and tribunals and
they alone can pronounce with authority and finality on what is
legal and what is not. All that an inferior tribunal can do is to
reach a tentative conclusion which is subject to review under
Articles 226 and 136. Therefore, the jurisdiction of the High Courts
under Article 226 with that of the Supreme Court above them
remains to its fullest extent despite Section 105."
22. A Seven Judge Bench of this Court in In re The Kerala
Education Bill, 1957, AIR 1958 SC 956 had occasion to consider
the jurisdiction of High Court under Article 226 in reference to a provision
in Kerala Educational Bill, 1957. Clause 33 of Kerala Education Bill
provided:-
"33. Courts not to grant injunction - Notwithstanding anything
contained in the Code of Civil Procedure, 1908, or in any other
law for the time being in force, no court shall grant any temporary
injunction or make any interim order restraining any proceedings
which is being or about to be taken under this Act."
23. In exercise of power vested in him by Article 143(1), the
President of India had referred to this Court four questions for
consideration.