The inherent jurisdiction of HC under Art 226/227 cannot be taken away by a statutory provision; SC.

Supreme Court of India

Justice Ashok Bhushan & Justice Navin Sinha

The SC on March 19, 2020 {BENEDICT DENIS KINNY v. TULIP BRIAN MIRANDA & ORS.} held 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. 

In earlier case, Justice R.F. Nariman delivered a concurring opinion and in his judgment in Asian Resurfacing of Road Agency Private Limited and Another Vs. Central Bureau of Investigation, (2018) 16 SCC 299 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 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……………” 

It was held by the SC that the reliance of learned counsel for the appellant on the judgment 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. It was held that 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.

It was also held that the power of judicial review vested in the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. It was held that the jurisdiction under Article 226 is original, extraordinary and discretionary. It was also held that 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.

It was further held that 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. It was held that the scope of Article 226 is very wide and can be used to remedy injustice wherever it is found.

It was held 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.

It was also held that 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. It was held that 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.

It was held that 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 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. It was held that 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. It was held that no such fetter on the power of the High Court can be read by virtue of provision of Section 5B.

It was ultimately held that Section 5B of the Mumbai Municipal Corporation Act does not oust the jurisdiction of High Court under Article 226 of the Constitution.

In the facts of the present case, the deeming fiction under Section 5B of Mumbai Municipal Corporation Act i.e. as to retrospective termination of the election, whether could not come in operation due to the interim order passed by the High Court was the short question before the SC. And the other issue was 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?

Both the said questions were answered in favour of Writ Petitioner before the HC by the SC as aforesaid - while sustaining the judgment of the HC. And the appeal was dismissed by the SC.