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The question which has been dealt with in this judgment 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 inserted in a State enactment.
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 case 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 disqualification was postponed by interim order and the impugned order of the Caste Scrutiny Committee has been set aside.
The role of High Court under Article 226 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.
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 Caste Validity Certificate. No such fetter on the power of the High Court can be read by virtue of provision of Section 5B.
In this 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.
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