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HC In Exercise Of Writ Jurisdiction Can Pass An Order Interdicting Legal Fiction, Provided It Had Not Come Into Operation: SC [Read Judgment]

Ashok Kini
20 March 2020 5:20 AM GMT
HC In Exercise Of Writ Jurisdiction Can Pass An Order Interdicting Legal Fiction, Provided It Had Not Come Into Operation: SC [Read Judgment]

"The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found."

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The Supreme Court has observed that the High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction engrafted in a legislation, provided the legal fiction had not come into operation.

The bench comprising Justice Ashok Bhushan and Justice Navin Sinha reiterated that the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.

Law and Facts

The 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. 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.

In this case, the Caste Scrutiny Committee refused to grant Caste validity certificate to one such elected candidate. In the writ petition filed by her challenging this order of the Committee the High Court, quashed the order of the Scrutiny Committee and remanded the matter to Scrutiny Committee for fresh consideration. It held that she 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.

The issues

The issue before the Apex Court in appeal was essentially whether the said period could have been extended by order of the High Court in exercise of jurisdiction under Article 226 of Constitution of India. In other words, the issue was 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.?

Answering these issues, the bench held that the Section 5B of the Mumbai Municipal Corporation Act does not oust the jurisdiction of the High Court under Article 226 of the Constitution. While dismissing the appeals, the Court made the following important observations.

On Powers Under Article 226

"(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."

On Section 5B Legal Fiction

"(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 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 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."

Case no.: CIVIL APPEAL NOS.1429-1430/2020
Case name:  BENEDICT DENIS KINNY vs.TULIP BRIAN MIRANDA
Coram: Justices Ashok Bhushan and Navin Sinha

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