BENEDICT DENIS KINNY Vs. TULIP BRIAN MIRANDA
LAWS(SC)-2020-3-76
SUPREME COURT OF INDIA
Decided on March 19,2020

Benedict Denis Kinny Appellant
VERSUS
Tulip Brian Miranda Respondents





Cited Judgements :-

ARUNA VS. STATE OF MAHARASHTRA [LAWS(SC)-2021-7-36] [REFERRED TO]
RAJKUMAR COLLEGE TRUST VS. PADMARAJSINHJI GHANSHYAMSINHJI JADEJA [LAWS(GJH)-2021-9-42] [REFERRED TO]
KASHMIRA SINGH VS. UNION OF INDIA [LAWS(P&H)-2021-7-246] [REFERRED TO]


JUDGEMENT

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. 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 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. 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.

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.

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