BENEDICT DENIS KINNY versus TULIP BRIAN MIRANDA & ORS.

Citation: [2020] 8 S.C.R. 1080 · Decided: 19-03-2020 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

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Judgment (excerpt)

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1080
SUPREME COURT REPORTS
[2020] 8 S.C.R.
1080
[2020] 8 S.C.R. 1080
BENEDICT DENIS KINNY
v.
TULIP BRIAN MIRANDA & ORS.
(Civil Appeal Nos.1429-1430/2020)
MARCH 19, 2020
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Constitution of India – Art. 226 – Mumbai Municipal
Corporation Act, 1888 – s. 5B – In one civil appeal, the respondent
and appellant contested the election on the seat of counsellor in
Mumbai Municipal Corporation reserved for backward class citizens
– s.5B of the 1888 Act required the candidate to submit caste validity
certificate on the date of filing nomination paper – It is provided in
the second proviso to s.5B that if a person fails to produce the
validity certificate within a period of six months (now twelve months)
from the date of election, the election shall be deemed to have been
terminated retrospectively and he shall be disqualified for being a
Counsellor – On 23.02.2017 respondent was declared elected –
The Scrutiny Committee by its order dated 14.08.2017 refused to
grant caste validity certificate in favour of the respondent – The
respondent filed writ petition challenging the order of the Scrutiny
Committee dated 14.08.2017 – The High Court passed an interim
order dated 18.08.2017 in favour of respondent by staying the order
dated 14.08.2017 and directed not to take any action of
disqualification against the respondent till the pendency of the writ
petition – Thereafter, the High Court quashed the order of the
Scrutiny Committee and remanded the matter for fresh consideration
– In another civil appeal, both the appellant and respondent no.5
contested election to Mumbai Municipal Corporation ward reserved
for backward class citizen – The respondent no.5 was declared
elected on 23.02.2017 – The Scrutiny Committee rejected the claim
of the respondent no.5 that she belongs to ‘Koyari caste’ – The
respondent no. 5 filed writ petition before the High Court – The
High Court passed interim order dated 22.08.2017 directing not to
take any coercive action against the respondent no. 5 – Later, the
High Court set aside the order passed by the Scrutiny Committee
and declared that the respondent no.5 belonged to the ‘Koyari caste’
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1081
– Whether the interim orders passed by the High Court in both the
civil appeals, directing not to take any coercive action against the
writ petitioners and allowing writ petitioners to continue on their
seats, were the orders beyond the jurisdiction of the High Court
u/Art. 226 and could not have been passed in view of the statutory
scheme of s. 5B – Held: The power u/Art. 226 of the Constitution
overrides any contrary provision in a statute and the power of the
High Court u/Art. 226 cannot be taken away or abridged by any
contrary provision in a statute – When a citizen has right to judicial
review against any decision of statutory authority, the High Court
in exercise of judicial review had every jurisdiction to maintain the
status quo so as to by lapse of time, the petition may not be
infructuous – The interim order can always be passed by a High
Court in exercise of writ jurisdiction to maintain the status quo in
aid of the relief claimed so that at the time of final decision of the
writ petition, the relief may not become infructuous – Further, s.5B
of the Mumbai Municipal Corporation Act does not oust the
jurisdiction of High Court u/Art.226 of the Constitution – There is
no fetter in the jurisdiction of the High Court in granting an interim
order in a case where caste claim of the respondents was illegally
rejected before the expiry of period of six months and the High
Court granted the interim order before the expiry of the period of
six months, as then prescribed – In the instant case, the deeming
fiction under s.5B of retrospective termination of the election could
not come in operation due to the interim order passed by the High
Court – The interim orders passed by the High Court were not beyond
the jurisdiction u/Art. 226 of the Constitution.
Dismissing the appeals, the Court
HELD: 1. The following points arise for consideration:-
(i) Whether the jurisdiction of the High Court under Article
226 of the Constitution of India is ousted due to statutory scheme
of Section 5B of the Mumbai Municipal Corporation Act?
(ii) Whether High Court had no jurisdiction to pass an
interim or final order, the effect of which is to interdict the statutory
fiction under Section 5B to the effect that in event the Caste
Scrutiny Certificate is not submitted w

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