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SUPREME COURT OF INDIA
ASHOK BHUSHAN, NAVIN SINHA, JJ.
Benedict Denis Kinny – Appellant
Versus
Tulip Brian Miranda and Others – Respondents
Civil Appeal Nos. 1429, 1430, 1431 of 2020, SLP (C) Nos. 13703-13704, 19732 of 2019
Decided On : 19-03-2020
(a) Constitution of India - Article 226 - Power under Article 226 overrides any contrary provision in a Statute - This power cannot be taken away or abridged by any contrary provision in a Statute - Jurisdiction of Article 226 is not even barred in election matter - Jurisdiction under Article 226 is original, extraordinary and discretionary - High Court has to see whether injustice has resulted on account of any decision of an authority. (Para 26, 31, 51)
(b) Mumbai Municipal Corporation Act - Section 5B - Deemed termination of election and disqualification - Taking effect after six/twelve months of date of election - Instantly Caste Scrutiny Committee rejecting claim of respondent, writ petition filed, interim order passed therein within six months - Consequence of non-filing of Validity Certificate within a period of six months postponed rather interdicted by interim order of the High Court - 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 37, 51)
Facts of the case:
The respondent as well as appellant contested the election on the seat of Counsellor in Mumbai Municipal Corporation reserved for Backward class citizens. 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 certificate issued by the Scrutiny Committee.
It was further provided that if a person fails to produce the validity certificate within a period of twelve months (as amended) 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 Scrutiny Committee vide its order dated 14.08.2017 held that respondent No. 1 does not belong to East Indian Category.
Writ Petition No. 2269 of 2017 was filed by respondent challenging order of the Caste Scrutiny Committee dated 14.08.2017.
The High Court 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. The High Court 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.
Review Petition (L) was filed by the appellant which too has been rejected by the High Court.
Finding of the Court:
Section 5B of the Mumbai Municipal Corporation Act does not oust the jurisdiction of High Court under Article 226 of the Constitution.
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.
The interim order dated 22.08.2017 and final judgment 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.
Result: Appeals dismissed.
JUDGMENT :
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) Benedict Denis Kinny vs. Tulip Brian Miranda and Others, Civil Appeal Nos. 1429-1430/2020
(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 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 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) Smt. Prachi Prasad Parab vs. State of Maharashtra and Others, Civil Appeal No. 1431/2020
(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 da
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