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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NOS.1429-1430/2020  

(arising out of SLP (C) Nos. 13703-13704 of 2019)  

BENEDICT DENIS KINNY           ...APPELLANT(S)   

VERSUS  

TULIP BRIAN MIRANDA & ORS.     ...RESPONDENT(S)   

WITH  

CIVIL APPEAL NO.1431/2020  

(arising out of SLP (C) No. 19732 of 2019)  

SMT. PRACHI PRASAD PARAB          ...APPELLANT(S)   

VERSUS  

THE STATE OF MAHARASHTRA & ORS.    ...RESPONDENT(S)  

J U D G M E N T  

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.  

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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

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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.  

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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

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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.

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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

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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 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

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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

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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 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:-

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(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

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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

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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 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

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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  

(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

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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 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:-

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“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”.”.   

14. Two more provisions of Maharashtra Act No. LXV of  

2018 needs to be noted, which are contained in Chapter

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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.”  

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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 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 18.08.2017  

Bombay 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:-  

“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

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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

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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  

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

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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

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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 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

22    

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

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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 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

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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

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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 writs, orders

26    

and directions to subordinate courts, tribunals and  

authorities notwithstanding any rule or law to the  

contrary.  The Constitution Bench in paragraph 35 has  

noticed the stand taken on behalf of State of Kerala  

in following words:-  

“35.          XXXXXXXXXXXXXXXXXXXX  

The State of Kerala in their statement  

of case disowns in the following words all  

intentions in that behalf:  

“52. Kerala State asks this  

Honourable Court to answer the  

fourth question in the negative,  

on the ground that the power given  

to High Courts by Article 226  

remains unaffected by the said  

clause 33.  

53. Kerala State contends that  

the argument that clause 33  

affects Article 226 is without  

foundation.  

54. 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. The power conferred upon High  

Courts under Article 226 of the  

Constitution is an overriding  

power entitling them, under  

certain conditions and  

circumstances, to issue writs,  

orders and directions to  

subordinate courts, tribunals and

27    

authorities notwithstanding any  

rule or law to the contrary.”  

25. This Court expressed its agreement with the  

submissions made by State of Kerala and held that  

clause 33 is subject to the overriding provisions of  

Article 226 of the Constitution of India.  This Court  

laid down following:-  

“Learned counsel for the State of Kerala  

submits that clause 33 must be read subject  

to Articles 226 and 32 of the Constitution.  

He relies on the well known principle of  

construction that if a provision in a  

statute is capable of two interpretations  

then that interpretation should be adopted  

which will make the provision valid rather  

than the one which will make it invalid. He  

relies on the words “other law for the time  

being in force” as positively indicating  

that the clause has not the Constitution 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

28    

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 virtually meaningless.  

In paragraph 129 following was held:-  

“129. If the power of the High Courts under  

Article 226 and the authority of this Court  

under Article 32 are not subject to any  

exceptions, then it would be futile to  

contend that a citizen cannot move the High

29    

Courts or this Court to invoke their  

jurisdiction even in cases where his  

fundamental rights have been violated. The  

existence of judicial power in that behalf  

must necessarily and inevitably postulate  

the existence of a right in the citizen to  

move the Court in that behalf; otherwise  

the power conferred on the High Courts and  

this Court would be rendered virtually  

meaningless. Let it not be forgotten that  

the judicial power conferred on the High  

Courts and this Court is meant for the  

protection of the citizens’ fundamental  

rights, and so, in the existence of the  

said judicial power itself is necessarily  

involved the right of the citizen to appeal  

to the said power in a proper case.”  

28. A Seven Judge Bench in L. Chandra Kumar Vs. Union  

of India and Others, (1997) 3 SCC 261 again had occasion  

to examine the nature and extent of jurisdiction of the  

High Court under Article 226.  It was held that power  

of judicial review under Article 226 and Article 32 of  

the Constitution is an integral and essential feature  

of the Constitution, constituting part of its basic  

structure.  The Constitution Bench was examining the  

validity of clause 2(d) of Article 323A and clause 3(d)  

of Article 323B, which excluded the jurisdiction of the  

High Court.  Article 323A clause 2(d) provided as  

under:-

30    

“323A. Administrative tribunals.- (1)  

Parliament may, by law, provide for the  

adjudication or trial by administrative  

tribunals of disputes and complaints with  

respect to recruitment and conditions of  

service of persons appointed to public  

services and posts in connection with the  

affairs of the Union or of any State or of  

any local or other authority 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

31    

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  

petition and to issue interim direction after  

commencement of electoral process.  In reference to bar  

as created by Article 329 of the Constitution of India,  

this Court quoted with approval statement of Halsbury’s  

Laws of England, Fourth Edition, Volume 10, Para 713,  

in following words:-  

“15. The constitutional status of the High  

Courts and the nature of the jurisdiction  

exercised by them came up for the

32    

consideration of this Court in M.V.  

Elisabeth v. Harwan Investment and Trading  

(P) Ltd., 1993 Supp. (2) SCC 433 It was  

held that the High Courts in India are  

superior courts of record. They have  

original and appellate jurisdiction. They  

have inherent and supplementary powers.  

Unless expressly or impliedly barred and  

subject to the appellate or discretionary  

jurisdiction of Supreme Court, the High  

Courts have unlimited jurisdiction  

including the jurisdiction to determine  

their own powers. The following statement  

of law from Halsbury’s Laws of England (4th  

Edn., Vol. 10, para 713) was quoted with  

approval:  

“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 cognisance of  

the particular court.”  

16. This Court observed that the  

jurisdiction of courts is carved out of  

sovereign power of the State. People of  

free India are sovereign and the exercise  

of judicial power is articulated in the  

provisions of the Constitution to be  

exercised by courts under the Constitution  

and the laws thereunder. It cannot be  

confined to the provisions of imperial  

statutes of a bygone age. Access to court  

which is an important right vested in every  

citizen implies the existence of the power  

of the Court to render justice according to  

law. Where statute is silent and judicial  

intervention is required, courts strive to  

redress grievances according to what is

33    

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 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

34    

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 even if there  

are irregularities or illegalities, and  

knock the doors of the courts when the  

election proceedings in question are over.  

Two-pronged attack on anything done during  

the election proceedings is to be avoided  

— one during the course of the proceedings  

and the other at its termination, for such  

two-pronged attack, if allowed, would  

unduly protract or obstruct the functioning  

of democracy.”  

32. We may notice another Three Judge Bench judgment  

of this Court in Asian Resurfacing of Road Agency  

Private Limited and Another Vs. Central Bureau of  

Investigation, (2018) 16 SCC 299.  In the above case,  

jurisdiction of the High Court under Article 226 came  

to be considered in light of provisions of Section  

19(3)(c) of the Prevention of Corruption Act, 1988.  We  

may first notice Section 19(3)(c) of the Prevention of  

Corruption Act, which is to the following effect:-  

“19. Previous sanction necessary for  

prosecution.—  

XXXXXXXXXXXXXXXX  

35    

(3) Notwithstanding anything contained in  

the Code of Criminal Procedure, 1973—  

(c) no court shall stay the  

proceedings under this Act on any  

other ground and no court shall  

exercise the powers of revision in  

relation to any interlocutory order  

passed in inquiry, trial, appeal or  

other proceedings.”  

33. There being difference of opinion amongst  

different Benches of this Court as well as of all the  

High Courts, a reference was made to a Three Judge  

Bench of the Delhi High Court.  In the above Three  

Judge Bench, High Court had held that even if a petition  

Under Section 482 of the Code of Criminal Procedure or  

a writ petition Under Article 227 of the Constitution  

of India is entertained by the High Court under no  

circumstances an order of stay should be passed regard  

being had to the prohibition contained in Section  

19(3)(c) of the 1988 Act.  Justice Adarsh Kumar Goel  

speaking for this Court held that despite Section  

19(1)(c), the High Court 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

36    

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  

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

37    

the court to consider whether any  

matter falls within its jurisdiction  

or not. Unlike a Court of limited  

jurisdiction, the superior court is  

entitled to determine for itself  

questions about its own  

jurisdiction. “Prima facie”, says  

Halsbury, ‘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’ [Halsbury’s  

Laws of England, Vol. 9, p. 349].”  

54. It is thus clear that the inherent power  

of a court set up by the Constitution is a  

power that inheres in such court because it  

is a superior court of record, and not  

because it is conferred by the Code of  

Criminal Procedure. This is a power vested  

by the Constitution itself, inter alia,  

under Article 215 as aforestated. Also, as  

such High Courts have the power, nay, the  

duty to protect the fundamental rights of  

citizens under Article 226 of the  

Constitution, the inherent power to do  

justice in cases involving the liberty of  

the citizen would also sound in Article 21  

of the Constitution. This being the  

constitutional position, it is clear that  

Section 19(3)(c) cannot be read as a ban on  

the maintainability of a petition filed  

before the High Court under Section 482 of  

the Code of Criminal Procedure, the non  

obstante clause in Section 19(3) applying  

only to the Code of Criminal  

Procedure……………”  

38    

35. The Delhi High Court’s judgment’s conclusion in  

paragraph 36(d) was set aside.  The Delhi High Court  

in paragraph 36(d), which judgment was impugned before  

this Court had laid down:-  

“36. In view of our aforesaid discussion,  

we proceed to answer the reference on  

following terms:  

(d) Even if a petition under Section  

482 of the Code of Criminal  

Procedure or a writ petition under  

Article 227 of the Constitution of  

India is entertained by the High  

Court under no circumstances 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

39    

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 petition was filed by the respondent before expiry

40    

of period of six months and the High Court also granted  

an interim order on 18.08.2017, i.e., within a period  

of six months, after expiry of which the deeming  

fiction was to come into existence.  The interim order  

was passed by the High Court before a deeming fiction  

of termination of election retrospectively came into  

operation.  The consequence of non-filing of Validity  

Certificate within a period of six months was postponed  

rather interdicted by the interim order of the High  

Court.  The jurisdiction of the High Court to pass the  

above interim order dated 18.08.2017 is questioned by  

the appellants.  Caste Scrutiny Committee, which is a  

statutory authority constituted under State enactment  

to verify the caste claimed by citizens, in event,  

illegally rejects the claim of citizen, does the  

citizen has no right to seek judicial remedy?  Can the  

illegal rejection of caste claim of a citizen is a fait  

accompli after expiry of period of six months?  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

41    

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 so that at the  

time of final decision of the writ petition, the relief  

may not become infructuous.   

38. We are conscious of the fact that the High Court  

has to exercise jurisdiction under Article 226 with due  

regard to the legislative intent manifested by  

provisions of enactment.  A Nine Judges Constitution  

Bench in Mafatlal Industries Ltd. and Others Vs. Union  

of India and Others, (1997) 5 SCC 536 had laid down  

such preposition in paragraph 108 in following words:-  

“108.    XXXXXXXXXXXXXX  

XXXXXXXXXXXXXX  

(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

42    

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 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 validity certificate by  

elected Councillor is mandatory in  

nature?  

43    

(ii) Whether the failure on the part  

of person elected as Councillor to  

produce the caste validity  

certificate within the period of six  

months from the date on which he was  

declared elected, irrespective of  

facts and circumstances and  

eventuality beyond the control of  

such person to produce validity  

certificate would automatically  

result into termination of his  

election with retrospective effect?  

(iii) Whether the validation of  

caste claim of elected Councillor by  

the Scrutiny Committee beyond the  

prescribed period would  

automatically result into  

termination of such Councillor with  

retrospective operation?"  

40. The Full Bench in the above case was considering  

Section 9-A of Maharashtra Municipal Councils, Nagar  

Panchayats and Industrial Townships Act, 1965, which  

is pari materia to Section 5B of Mumbai Municipal  

Corporations Act, 1888.  The High Court after elaborate  

consideration has held that requirement of submitting  

the caste certificate within a period of six months is  

a mandatory requirement.  In paragraphs 98, 99 and 100,  

following was laid down:-  

“98. In the present case also the  

legislature in enacting Section 9-A has  

provided for a statutory fiction, which is  

evident from the use of expression "his

44    

election shall be deemed to have been  

terminated retrospectively and he shall be  

disqualified being a Councillor". The  

statutory fiction must be allowed to have  

its full play. No other provision or reason  

has been pointed out to take the view that  

consequences prescribed under second  

proviso to Section 9-A are not automatic or  

would require any further adjudication once  

it is established that the person elected  

has failed to produce the Validity  

Certificate within a stipulated period of  

six months from the date of his election.  

99. The validation of caste claim of the  

elected Councillor 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

45    

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 High Court that Statute engrafts a  

mandatory requirement in law.  In paragraphs 7, 8 and  

9, this Court laid down following:-  

“7. A proviso to the aforesaid main  

provision of the statute was brought in  

subsequently which permitted a candidate to  

file his/her nomination even in the absence  

of the validity certificate provided he/she  

encloses with the nomination a true copy of  

the application filed by him/her before the  

Scrutiny Committee and an undertaking that  

he/she shall submit, within a period of six  

months from the date of his/her election,  

the validity certificate issued by the  

Scrutiny Committee.  

46    

8. There is a second proviso which  

contemplates that on the failure of the  

person(s) concerned to produce the validity  

certificate within the time-frame  

stipulated his election “shall be deemed to  

have been terminated retrospectively and he  

shall be disqualified for being a  

Councillor”.  

9. We have read and considered the very  

elaborate reasoning adopted by the Full  

Bench of the High Court in coming to its  

conclusions that the aforesaid provisions  

of the statute engrafts a mandatory  

requirement in law. The High Court, in our  

considered view, very rightly came to the  

aforesaid conclusion along with the further  

finding that equities in individual case(s)  

would not be a good ground to hold the  

provision to be directory. In fact, the  

High Court has supported its decision by  

weighty reasons to hold that reading the  

provisions to be directory would virtually  

amount to rendering the same to be  

nugatory.  

42. This Court also rejected the submission that  

hardship in few cases would not be a good ground to  

hold the provision to be directory.  There can be no  

dispute to the preposition as laid down by this Court  

that requirement of submitting the Caste certificate  

within a period of six months (now twelve months) under  

proviso to Section 5B is a mandatory requirement and  

consequences of non-submission within the period  

prescribed is automatic retrospective termination of

47    

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 retrospectively but in the present case in  

the facts of both the appeals, the consequences of

48    

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  

under Section 5B.  It is true that requirement of  

submission of Caste Validity Certificate within a  

period of one year is statutory requirement but in the  

facts of the case before us before the expiry of the  

period, Caste Scrutiny Committee has 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 period of  

one year, which was period envisaged in Section 5B for  

submission of the Caste Validity Certificate.  No such

49    

fetter on the power of the High Court can be read by  

virtue of provision of Section 5B.    

44. The reliance of learned counsel for the appellant  

on the judgment of this Court in the case of The State  

of Orissa Vs. Madan Gopal Rungta, 1952 SCR 28: AIR 1952  

SC 12 that interim relief can be granted only in aid  

of and as ancillary to the main relief, does not support  

the case of the appellant.  In the present case, the  

interim relief was granted by the High Court, which was  

in aid of and ancillary to the main relief, which could  

be granted to the appellant at the time of  

determination of his rights.    

45. Shri Choudhari further submits that this Court in  

State of U.P. and Others Vs. Harish Chandra and Others,  

(1996) 9 SCC 309 has held that there can be no mandamus  

against a statute, hence, the High Court could not have  

issued a writ of mandamus because there was an interim  

order in favour of respondent No.1.  In the final  

judgment passed by the High Court dated 02.04.2019,  

there is direction of the High Court to continue the  

respondent in their elected office.  The tenure of the

50    

office for which the respondents were elected had not  

come to an end, hence, present was not a case of issue  

any direction to continue the respondent 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………………………”   

51    

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 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.    

48. The learned counsel for the appellant has also  

referred to Land Acquisition Act, 1984 and submit that  

there is no provision under Section 5B similar to  

Explanation to Section 11A of the Land Acquisition Act,  

1984, which exclude the period of stay granted by the  

Court in computing the period mentioned in the main  

provision.  The provision of Section 11A of the Land  

Acquisition Act, which provides for the period within

52    

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 declaration  

is stated by an order of the Court shall be excluded.   

Section 11A is a legislative scheme in reference to  

Land Acquisition Act, which provision is entirely  

different and does not lend any support to the  

submission made by the learned counsel for the  

appellant.    

49. Learned counsel for the appellant has relied on  

judgment of this Court in Padma Sundara Rao (Dead) and  

Others Vs. State of T.N. and Others, (2002) 3 SCC 533  

for the preposition that legislative casus omissus  

cannot be supplied by judicial interpretative process.   

This Court in the above case laid down following in  

paragraph 14:-  

“14. While interpreting a provision the  

court only interprets the law and cannot  

legislate it. If a provision of law is  

misused and subjected to the abuse of

53    

process of law, it is for the legislature  

to amend, modify or repeal it, if deemed  

necessary. (See Rishabh Agro Industries  

Ltd. v. P.N.B. Capital Services Ltd.,  

(2000) 5 SCC 515) The legislative casus  

omissus cannot be supplied by judicial  

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

54    

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 nomination and not  

the date of judgment in an election petition or in  

appeal there against.  There can be no dispute to the  

preposition as laid down by this Court in K.  

Prabhakaran (supra).  Present is not a case of any kind  

of disqualification of the respondent at the time of  

holding election or on the date of scrutiny of  

nomination.  The above judgment has no application at  

all.  We, thus, do not find any substance in the  

submission of the learned counsel for the appellant  

that High Court could not have passed an interim order  

in the writ petitions filed by the respondents, which

55    

may have effect of the respondents’ continuance after  

expiry of period of six months by which date, they had  

to file their Caste Validity Certificate.  There is no  

fetter in the jurisdiction of the High Court in  

granting an interim order in a case where caste claim  

by respondents was illegally rejected before the expiry  

of period of six months and the High Court granted the  

interim order before the expiry of period of six  

months.  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.  We have already held that 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.  

56    

In view of the foregoing discussions, we arrive 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.

57    

(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

58    

one year under Section 5B of Mumbai Municipal  

Corporation Act is mandatory requirement but  

in the facts of the case before us 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

59    

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.   

52. We, 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

60    

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.   

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

61    

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 appeals are dismissed.   

......................J.  

                                ( ASHOK BHUSHAN )  

......................J.  

                                 ( NAVIN SINHA )  

New Delhi,  

March 19, 2020.