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’ – 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 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 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 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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