Supreme Court of India
UNION OF INDIA & ORS.versusMAJOR GENERAL SHRI KANT SHARMA & ANR.
- Citation
- 2015 INSC 206
- Decided
- 11 March 2015
- Disposal
- Disposed off
- Bench
- S MUKHOPADHAYA
Holding
Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, together with the constitutional bars under Articles 136(2) and 227(4), exclude High Court jurisdiction under Article 226 to entertain writ petitions against AFT orders, mandating recourse to the statutory appeal mechanism.
Summary
The case concerned several writ petitions filed under Article 226 of the Constitution challenging orders of the Armed Forces Tribunal (AFT). The Union of India argued that Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, together with Articles 136(2) and 227(4) of the Constitution, bar High Court jurisdiction over such matters, directing aggrieved parties to the statutory appeal mechanism. The Court examined the scheme of the Act, the constitutional provisions, and the basic structure doctrine, concluding that the High Court cannot entertain writ petitions that bypass the statutory appeal route, as doing so would create an anomalous situation and violate the legislative intent. Consequently, the Delhi High Court’s orders were set aside and the parties were directed to pursue appeals under Sections 30 and 31 of the Act. The Supreme Court allowed some of the civil appeals and dismissed others.
Issues considered
- Whether Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, bar the jurisdiction of High Courts under Article 226 to entertain writ petitions against AFT orders.
- Whether Article 136(2) and Article 227(4) of the Constitution exclude High Court jurisdiction in matters relating to the Armed Forces.
- Whether allowing High Court intervention creates an anomalous situation contrary to the statutory remedy provided by the Act.
- Whether the High Court should direct parties to avail the appeal mechanism under Sections 30 and 31 of the Act.
Legislation cited
- Air Force Act, 1950
- Armed Forces Tribunal Act, 2007s. 14, s. 15, s. 30, s. 31, s. 33, s. 34
- Army Act, 1950
- Code of Civil Procedure, 1908
- Constitution of Indias. Article 136(2), s. Article 226, s. Article 227(4), s. Article 32, s. Article 33
- Indian Evidence Act, 1872
- Navy Act, 1957
Subjects
Armed Forces TribunalArticle 226Article 136Article 227Statutory appealJurisdictionWrit petitionBasic structure doctrineJudicial reviewAlternative remedy
Judgment
[2015] 4 S.C.R. 676
A UNION OF INDIA & ORS.
V.
MAJOR GENERAL SHRI KANT SHARMA & ANR.
(Civil Appeal No .. 7400 of 2013)
B
MARCH 11, 2015
[SUDHANSU JYOTI MUKHOPADHAYA AND
N.V. RAMANA, JJ.]
c
Armed Forces Tribunal Act, 2007: ss.30, 31 - Whether
ss.30 and 31 bar the jurisdiction of High Court from hearing
writ petition u!Art.226 against the order of the Armed Forces
Tribunal - Held: Right of appeal uls.30 against an order of
D Armed Forces Tribunal with the leave of the Tribunal u/s.31
or leave granted by the Supreme Court or bar of leave to
appeal u/Art. 136(2), bar the jurisdiction of the High Court u/
Art.226 regarding matters related to Armed Forces -
Constitution of India, 1950 -Art.226 - Jurisdiction.
E
Disposing of the appeals, the Court
HELD: 1. The Armed Forces Tribunal Act, 2007 has
been enacted to provide for adjudication or trial by
F Armed Forces Tribunal of disputes and complaints with
respect to commission, appointments, enrolment and
conditions of service in respect of persons subject to
the Army Act, 1950, the Navy Act, 1957 and the Air Force
Act, 1950 and also to provide for appeals arising out of
G orders, findings or sentences of Courts-Martial held
under the said Acts and for matters connected therewith
or incidental thereto. As per Section 14, in relation to
service matters, the Tribunal has been empowered to
H 676
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 677
SHARMA
exercise the jurisdiction, powers and authority, A
exercisable by all the Courts except the power of
Supreme Court or a High Court exercising jurisdiction
under Section 226 and 227 of the Constitution. [Paras
6, 7] [684-A-C; 686-8, C]
B
2. Chapter V of the Act relates to appeal. Section 30
provides for an appeal to the Supreme Court and
Section 31 deals with leave to appeal. A plain reading
of Sections 33, 34 shows that a remc;:!y of appeal to
Supreme Court against any final order passed by the c
Tribunal under Section 30 with the leave of the Tribunal
is provided under Section 31 of the Act. In case leave
is refused by the Tribunal, an application to the
Supreme Court for leave can be made as provided
under sub-section (1) and (2) of Section 31 of the Act. It D
is clear from the scheme of the Act that jurisdiction of
the Tribunal constituted under the Armed :-orces
Tribunal Act is in substitution of the jurisdiction of Civil
Court and the High Court so far as it relates to suit
relating to condition of service of the persons subject E
to Army Act, the Navy Act and the Air Force Act, which
are special laws enacted by the Parliament by virtue of
exclusive legislative power vested under Article 246 of
the Constitution read with Entries 1 & 2 of List I of the
Seventh Schedule. [Paras 9, 11, 12, 14] [689-B, .C; 692- F
C-E; 697-D-F]
Constitution of India, 1950
3. Article 32 falls under Chapter Ill of the Constitution
which deals witli fundamental right. Article 33 empowers G
, the Parliament to restrict or abrogate the application of
fundamental rights in relation to Armed Forces, Para
Military Forces, the Police etc. Article 226 empowers
High Court to issue prerogative writs. Article 227 relates H
678 SUPREME COURT REPORTS [2015] 4 S.C.R.
A to power of superintendence of High Courts over all
Court and Tribunals. Article 136 of the Constitution
provides special leave to appeal to Supreme Court. In
view of clause (2) of Article 136 which expressly
excludes the judgments or orders passed by any Court
B or Tribunal constituted by or under any law relating to
Armed Forces, the aggrieved persons cannot seek
leave under Article 136 of Constitution; to appeal from
such judgment or order. But right to appeal is available
under Section 30 with leave to appeal under Section 31
c of the Armed Forces Tribunal Act, 2007. Thus, there is a
constitutional bar not only under Article 136(2) but also
under Article 227(4) with regard to entertaining any
determination or order passed by any court or Tribunal
under law relating to Armed Forces. Judicial review
under Article 32 and 226 is a basic feature of the
0
Constitution beyond the plea of amendability. While
under Article 32 of the Constitution a person has a right
to move before Supreme Court by appropriate
proceedings for enforcement of the rights conferred by
Part Ill of the Constitution, no fundamental right can be
E claimed by any person to move before the High Court
by appropriate proceedings under Article 226 for
enforcement of the rights conferred by the Constitution
or Statute. [Paras 15 to 19, 21 and 25] [697-F; 698-E; 699-
C-D; 700-F-G; 701-F; 702-B-C, E-H; 703-A]
F
Statutory remedy
4. Though under Section 30, no person has a right
of appeal against the final order or decision of the
Tribunal to this Court other than those falling under
G Section 30(2) of the Act, but it is statutory appeal which
lies to this Court. [Para 33] [721-G, HJ
likelihood of anomalous situation
5. If the High Court entertains a petition under Article
H 226 against order passed by Armed Forces Tribunal
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 679
SHARMA
under Section 14 or Section 15 of the Act bypassing the A
machinery of statute i.e. Sections 30 and 31 of the Act,
there is likelihood of anomalous situation for the
aggrieved person in praying for relief from this Court. If
any person aggrieved by the order of the Tribunal,
moves before the High Court under Article 226 and the B
High Court entertains the petition and passes a
judgment or order, the person who may be aggrieved
againstboth the orders passed by the Armed Forces
Tribunal and the High Court, cannot challenge both the
orders in one joint appeal. The aggrieved person may C
file leave to appeal under Article 136 of the Constitution
against the judgment passed by the High Court but in
view of the bar of jurisdiction by clause (2) of Article 136,
this Court cannot entertain appeal against the order of
the Armed Forces Tribunal. Once, the High Court D
entertains a petition under Article 226 of 'the
Constitution against the order of Armed Forces Tribunal
and decides the matter, the person who thus
approached the High Court, will also be precluded from E
filing an appeal under Section 30 with leave to appeal
under Section 31 of the Act against the order of the
Armed Forces Tribunal as he cannot challenge the
order passed by the High Court under Article 226 of the
Constitution under Section 30 read with Section 31 of F
the Act. Thereby, there is a chance of anomalous
situation. The High Court (Delhi High Court) while
entertaining the writ petition under Article 226 of the
Constitution bypassed the machinery created under
Sections 30 and 31 of Act. (Paras 37, 38] (723-E-H; 724- G
A-F]
Ous Kutilingal Achudan Nair vs.Union of India (1976)
2 SCC 780: 1976 (2) SCR 769; L. Chandra kumar vs. Union
of India (1997)3 sec 261: 1997 (2) SCR 1186; S.N.
Mukherjee vs.Union of India (1990) 4 SCC 594: 1990 (1) H
680 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Suppl. SCR 44; R.K. Jain vs. Union of India & Ors. (1993)
4 SCC 119: 1993 (3) SCR 802; Babubhai Muljibhai Patel
vs. Nandlal Khodidas Barot and others AIR 1974 SC 2105:
1975 (2) SCR 71; Mafatlal Industries Ltd. and others
vs.Union of India and Ors. (1997) 5 SCC 536: 1996 (10)
B Suppl. SCR 585; Kanaiyalal Lalchand and Sachdev and
others vs. State of Maharasthra and others (2011) 2 SCC
782:2011 (2) SCR 602; Nivedita Sharma vs. Cellular
Operators Association of India and others (2011)14 SCC
337; Executive Engineer, Southern Electricity Supply
c Company of Orissa Limited (SOUTHCO) and another vs.
Sri Seetaram Rice Mill (2012) 2 SCC 108:'2011 (15) SCR
211; Cicily Ka/larackal vs. Vehicle Factory 2012(8) SCC
524: 2012 (8) SCR 95;Commissioner of Income Tax and
others vs. Chhabil Dass Agrawal (2014)1 SCC 603 - relied
D
on.'
Case Law Reference
1976 (2) SCR 769 Relied on. Para 16
E 1997 (2) SCR 1186 Relied on. Para 22
1990 (1) Suppl. SCR 44 Relied on. Para 23
1993 (3) SCR 802 Relied on. Para 24
F 1975 (2) SCR 71 Relied on. Para 26
1996 (10) Suppl. SCR 585 Relied on. Para 27
2011 (2) SCR 602 Relied on. Para 28
G (2011)14 sec 337 Relied on. Para 29
2011 (15) SCR 211 Relied on. Para 30
2012 (8) SCR 95 Relied on. Para 31
H (2014)1 sec 603 Relied on. Para 32
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 681
SHARMA
CIVIL APPELLATE JURISDICTION: Civil Appeal No. A
7400 of 2013.
From the Judgment and Order dated 11.01.2013 of the
High Court of Delhi in CWP No. 7208 of 2011.
B
with
Civil Appeal Nos. 7338, 7375-7376, 7399, 9388, 9389
of 2013
and Civil Appeal No. 96 of 2014 c
Pinky Anand, ASG, B. Adi Narayana Rao, B. V. Balaram
Das, Binu Tamta, P. Bagchi, Amit Kumar, M. Srinivas R. Rao,
Abid Ali Beeran P., Arun Devdas, Sudha Gupta, Shekhar
Kumar, Janme Jay, Anil Katiyar, Sridhar Potaraju, for the D
Appellants.
Jyoti Singh, Tinu Bajwa, Arnandeep Joshi, Sameer
Sharma, Sudarshan Rajan, Shriya Raj Chauhan, Priya Puri,
Biswajit Ray, R. Kumar Dubey, for the Respondents. E
Respondent-in-person.
The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J. 1. In these F
appeals the question raised is whether the right of appeal
under Section 30 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as the 'ct'), against an order of Armed
Forces Tribunal (hereinafter referred to as the Tribunal') with
the leave of the Tribunal under Section 31 of the Act or leave G
granted by the Supreme Court, or bar of leave to appeal
before the Supreme Court under Article 136(2) of the
Constitution of India, will bar the jurisdiction of the High Court
under Article 226 of the Constitution of India regarding matters
related to Armed Forces. Union of India and others are the H
682 SUPREME COURT REPORTS [2015]4 S.C.R.
A appellants in all these appeals except in C.A.No.7338,
C.A.No. 7399 of 2013 and C.A.No.96/2014 wherein they are
the respondents. The respondents in all these appeals except
the three mentioned above are-Army Personnel who moved
before the Tribunal for adjudication or trial of disputes and
B complaints with respect to condition of service. Having not
granted relief, the Army personnel assailed the order passed
by the Tribunal before the respective High Courts under
Article 226 of the Constitution. The appellant in C.A.No.7338
of 2013 on being aggrieved by the order passed by the
C Armed Forces Tribunal, Regional Bench, Chennai challenged
the same before the High Court of Judicature of Andhra
Pradesh at Hyderabad. In the cases in hand except
C.A.No.7338 of 2013 and C.A.No.96 of 2014 the High Court
entertained the writ petitions and adjudicated the disputes.
0
The High Court having granted relief after reversing the order
of Tribunal, the Union of India has challenged the same. In
C.A.No.7338 of 2013 and C.A.No.96 of 2014, the appellants-
Army Personnel have challenged the orders by which High
E Courts refused to entertain their writ petitions. In C.A. No.
7399 of 2013, the appellant-Army Personnel has challenged
the order of Delhi High Court allowing the writ petition of
respondent No.2 therein.
F 2. At the outset, in all the writ petitions preliminary
objection was raised on behalf of the Union of India as to the
maintainability of the writ petition on the ground that against
the orders impugned a remedy of appeal to the Supreme
Court is provided under Section 30 of the Armed Forces
G Tribunal Act, 2007.
3. Learned counsel appearing on behalf of the Union of
India submitted that the High Court cannot entertain writ
petitions under Article 226 of the Constitution of India contrary
H to the law enacted by the Parliament being the Armed Forces
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 683
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Tribunal, 2007 which is a special enactment exclusively A
provided for an appellate remedy by way of leave before this
Court.
Further, according to learned counsel for the Union of
India as none of the respondents raised any issue of B
jurisdiction of the Tribunal and it was essentially a challenge
to the order of the Armed Forces Tribunal only on merits.
Therefore, the High Court was not correct in entertaining the
writ petitions under Article 226 of the Constitution against the
well considered and reasoned order passed by the Tribunal. C
4. Col. A.O. Nargolkar appeared in person made the
following submissions:
(i) The power of judicial review under Article 226 and
0
227 of the Constitution is an inviolable part of its basic
structures. This power cannot be ousted by an Act of
Parliament i.e. the Armed Forces Tribunal Act, 2007.
(ii) Section 14 of the Act itself provides for judicial
review by the High Court under Article 226 and 227 of E
the Constitution. There exists clear and recorded
legislative intent behind the specific provisions.
(iii) Article 227(4) of the Constitution does not exclude
the jurisdiction of the High Court over the Armed Forces F
Tribunal as no such Tribunal existed when Article 227(4)
of the Constitution was substituted.
Similar submissions were made by the learned Senior
Counsel for the respondent-Army Personnel. G
5. For the determination of the present issue it is
necessary to refer the relevant provisions of the Armed
Forces Tribunal Act, 2007, the power of the High Court under
Sections 226 and 227 of the Constitution, and the power of H
684 SUPREME COURT REPORTS [2015) 4 S.C.R.
A Supreme Court under Articles 32 and 136 of the Constitution.
6. The Armed Forces Tribunal Act, 2007 has been
enacted to provide for adjudication or trial by Armed Forces
Tribunal of disputes and complaints with respect to
B commission, appointments, enrolment and conditions of
service in respect of persons subject to the Army Act, 1950,
the Navy Act, 1957 and the Air Force At, 1950 and also to
provide for appeals arising out of orders, findings or
sentences of Courts-Martial held under the said Acts and for
C matters connected therewith or incidental thereto.
7. As per Section 14 of the Act, the Armed Forces
Tribunal has been established by the Central Government to
exercise the jurisdiction, powers and authority conferred on
o it by the said Act. Section 14 specifies the jurisdiction, powers
and authority of the Tribunal in relation to service matters as
follows:
"Section 14. Jurisdiction, powers and authority in service
E matters.- (1) Save as otherwise expressly provided in
this Act, the Tribunal shall exercise, on and from the
appointed day, all the jurisdiction, powers and authority,
exercisable immediately before that day by all courts
(ex.::ept the Supreme Court or a High Court exercising
F jurisdiction under articles 226 and 227 of the
Constitution) in relati~n to all service matters.
(2) Subject to the other provisions of this Act, a person
aggrieved by an order pertaining to any service matter
may make an application to the Tribunal in such form
G
and accompanied by such documents or other evidence
and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service
matters, the Tribunal shall, if satisfied after due inquiry,
H
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 685
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
as it may deem necessary, that it is fit for adjudication A
by it, admit such application; but where the Tribunal is
not so satisfied, it may dismiss the application after
recording its reasons in writing.
(4) For the purpose of adjudicating an application, the B
Tribunal shall have the same powers as are vested in a
Civil Court under the Code of Civil Procedure, 1908, (5
of 1908) while trying a suit in respect of the following
matters, namely-
c
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits; D
(d) subject to the provisions of sections 123 and 124 of
the Indian Evidence
Act, 1872, (1 of 1872) requisitioning any public record E
or document or copy
of such record or document from any office;
(e) issuing commissions for the examination of
witnesses or documents; F
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it
ex pa rte; G
(h) setting aside any order of dismissal of any
application for default or any order passed by it exparte;
and
(i) any other matter which may be prescribed by the H
686 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Central Government.
(5) The Tribunal shall decide both questions of law and
facts that may be
raised before it."
B
It is clear that in relation to service matters the Tribunal
has been empowered to exercise the jurisdiction, powers and
authority, exercisable by all the Courts except the power of
Supreme Court or a High Court exercising jurisdiction under
C Section 226 and 227 of the Constitution.
8. Section 15 specifies the jurisdiction, powers and
authority to be exercised by the Tribunal relating to matters
of appeal against the Court- Martial. The said Section reads
0 as fellows:
"Section 15. Jurisdiction, powers and authority in
matters of appeal against court-martial.-(1) Save as
otherwise expressly provided in this Act, the Tribunal
E shall exercise, on and from the appointed day, all the
jurisdiction, powers and authority exercisable under this
Act in relation to appeal against any order, decision,
finding or sentence passed by a court martial or any
matter connected therewith or incidental therto.
F
(2) Any person aggrieved by an order, decision, finding
or sentence passed by a court martial may prefer an
appeal in such form, manner and within such time as
may be prescribed.
G
(3) The Tribunal shall have power to grant bail to any
person accused of an offence and in military custody,
with or without any conditions which it considers
necessary:
H Provided that no acc:used person shall be so released
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 687
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.)
if there appears reasonable ground for believing that he A
has been guilty of an offence punishable with death or
imprisonment for life.
(4) The Tribunal shall allow an appeal against conviction
by a court martial where - B
•
(a) the finding of the court martial is legally not
sustainable due to any reason whatsoever; or
(b) the finding involves wrong decision on a question of
law; or C
(c) there was a material irregularity in the course of the
trial resulting inmiscarriage of justice,
but, in any other case, may dismiss the appeal where D
the Tribunal considers that no miscarriage of justice is
likely to be caused or has actucilly resulted to the
appellant:
Provided that no order dismissing the appeal by the E
Tribunal shall be passed unless such order is made after
recording reasons therefor in writing.
(5) The Tribunal may allow an appeal against conviction,
and pass appropriate order thereon.
F
(6) Notwithstanding anything contained in the foregoing
provisions of this section, the Tribunal shall have the
power to-
(a) substitute for the findings of the court martial, a finding G
of guilty for any other offence for which the offender could
have been lawfully found guilty by the court martial and
pass a sentence afresh for the offence specified or
involved in such findings under the provisions of the Army
Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of H
688 SUPREME COURT REPORTS [2015) 4 S.C.R.
'
A 1957) or the Air Force Act, 1950, (45 of 1950) as the
case may be; or
(b) if sentence is found to be excessive, illegal or unjust,
the Tribunal may-
B
(J) remit the whole or any part of the sentence, with or
without conditions;
(ii) mitigate the punishment awarded;
C (iii) commute such punishment to any lesser punishment
or punishments
mentioned in the Army Act, 1950, (46of1950) the Navy
Act, 1957 (62 of
D
1957) and the Air Force Act, 1950, (45 of 1950) as the
case may be;
(c) enhance the sentence awarded by a court -martial:
E Provided that no such sentence shall be enhanced
unless the appellant has
been given an opportunity of being heard;
(d) release the appellant, if sentenced to imprisonment,
F
on parole with
or without conditions;
(d) suspend a sentence of imprisonment;
G
(e) pass any other order as it may think appropriate.
(7) Notwithstanding any other provisions in this Act, for
the purposes of this section, the Tribunal shall be
deemed to be a criminat court for the purposes of
H
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 689
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 A
of 1860) of the Indian Penal Code and Chapter XXVI
of the Code of Criminal Procedure, 1973. (2 of 1974)."
Sub-section (2) of Section 15 specifies the right of any
person to prefer an appeal against order, decision, finding or s
sentence passed by a Court-Martial.
9. Chapter V of the Act relates to appeal. Section 30
which provides for an appeal to the Supreme Court and
Section 31 deals with leave to appeal. The said Sections c
read as under:
"Section 30. Appeal to Supreme Court :-(1) Subject to
the provisions of
section 31, an appeal shall lie to the Supreme Court D
against the final
decision or order of the Tribunal (other than an order
passed under section 19):
E
Provided that such appeal is preferred within a period
of ninety days of the said decision or order:
Provided further that there shall be no appeal against
an interlocutory order of the Tribunal.
F
(2) An appeal shall lie to the Supreme Court as of right
from any order or decision of the Tribunal in the exercise
of its jurisdiction to punish for contempt: .
Provided that an appeal under this sub-section shall be G
filed in the Supreme Court within sixty days from the date
of the order appealed against.
(3) Pending any appeal under sub-section (2), the
Supreme Court may order that- H
690 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (a) the execution of the punishment or the order
appealed against be suspended; or
(b) if the appellant is in confinement, he be released on
bail:
B
Provided that where an appellant satisfies the Tribunal
that he intends to prefer an appeal, the Tribunal may also
exercise any of the powers conferred under clause (a)
or clause (b), as the case may be.
c Section 31. Leave to appeal.- (1) An appeal to the
Supreme Court shall lie with the leave of the Tribunal;
and such leave shall not be granted unless it is certified
by the Tribunal that a point of law of general public
importance is involved in the decision, or it appears to
D
the Supreme Court that the point is one which ought to
be considered by that Court.
(2) An application to the Tribunal for leave to appeal to
the Supreme Court shall be made within a period of
E thirty days beginning with the date of the decision of the
Tribunal and an application to the Supreme Court for
leave shall be made within a period of thirty days
beginning with the date on which the application for
leave is refused by the Tribunal.
F
(3) An appeal shall be treated as pending until any
application for leave to appeal is disposed of and if
leave to appeal is granted, until the appeal is disposed
of; and an application for leave to appeal shall be
G treated as disposed of at the expiration of the time
within which it might have been made, but it is not made
within that time."
10. Section 32 empowers the Supreme Court to condone
H the delay i.e. to extend the time within which an appeal may
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 691
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
be preferred by the person to the Court under Section 30 or A
sub-section (2) or Section 31. The said Section reads as
follows:
"Section 32.Condonation.- The Supreme Court may,
upon an application made at any time by the appellant, B
extend the time within which an appeal may be preferred
by him to that Court under section 30 or sub-section (2)
of section 31."
11. Section 33 excludes the jurisdiction of Civil Courts. c
Section 34 deals with transfer of pending cases before any
court including a High Court or other authority immediately
before the date of establishment of the Tribunal, the cause of
action of which would have been within the jurisdiction of
Tribunal. Sections 33 and 34 read as under: o
"Section 33. Exclusion of jurisdiction of civil courts.- On
and from the date from which any jurisdiction, powers
and authority becomes exercisable by the Tribunal in
relation-to service matters under this Act, no Civil Court E
shall have, or be entitled to exercise, such jurisdiction,
power or authority in relation to those service matters.
34. Transfer of pending cases.- (1) Every suit, or other
proceeding pending before any court including a High
Court or other authority immediately before the date of F
establishment of the Tribunal under this Act, being a suit
or proceeding the cause of action whereon it is based,
is such that it would have been within the jurisdiction of
the Tribunal, if it had arisen after such establishment
within the jurisdiction of such Tribunal, stand transferred G
on that date to such Tribunal.
(2) Where any suit, or other proceeding stands
transferred from any court including a High Court or other
authority to the Tribunal under sub-section (1 ),- H
692 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (a) the court or other authority shall, as soon as may
be, after such transfer, forward the records of such suit,
or other proceeding to the Tribunal;
(b) the Tribunal may, on receipt of such records, proceed
to deal with such suit, or other proceeding, so far as
8
may be, in the same' manner as in the case of an
application made under sub-section (2) of section 14,
from the stage which was reached before such transfer
or from any earlier stage or de novo as ~he Tribunal may
c deem fit."
12. A plain reading of the above provisions shows:
(i) A remedy of appeal to Supreme Court against any final
order passed by the Tribunal under Section 30 with the
D leave of the Tribunal is provided under Section 31 of
•
the Act.
(ii) In case leave is refused by the Tribunal, an application
to the Supreme Court for leave can be made as
E provided under sub-section (1) and (2) of Section 31
of the Act.
(iii) Against any order or decision of the Tribunal made
under Section 19 in exercise of its jurisdiction to punish
F for contempt, an appeal under sub- section (2) of
Section 30 lies to the Supreme Court as of right.
Section 33 excludes the jurisdiction of the Civil Courts
and not the High Court under Article 226 and 227.
However, Section 34 relates to transfer of pending
G cases, suits and cases pending in other courts
including the High Court. The suit pending before any
Court or High Court may stand transferred if the cause
of action comes under the jurisdiction of the Arms
Forces Tribunal Act but it does not affect the power of
.H the High Court under Section 226 and 227 of the
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 693
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Constitution. A
13. The Parliamentary 1oth Standing Committee for
Defence in May, 2006 deliberated on the proposed Section
30 and 31 of the Act. Chapter XIV of the recorded
deliberations provides insight into the legislative intent and 8
replies/advice of the Law Ministry, relevant portion of which
is reproduced below:
"CHAPTER XIV
CLAUSE 30 : JURISDICTION OF TRIBUNAL AND c
HIGH COURT IN MATTERS RELATING TO APPEAL
84. Clause 30 provides:-
1. Subject to the provision of section 31, an appeal shall D
lie to the Supreme Court against the final decision or
order of the Tribunal (other than an order passed under
section 19):
Provided that such appeal is preferred within a period E
of ninety days of the said decision or order.
Provided further that there shall be no appeal against
an interlocutory order of the Tribunal.
-- 2. An appeal shall lie to the Supreme Court as of right F
from any order or decisions of the Tribunal in the
exercise of its jurisdiction to punish for contempt.
Provided that an appeal under this sub-section shall be
filed in the Supreme Court within sixty days from the date G
of the order appealed against.
3. Pending any appeal under sub-section (2), the
Supreme Court may order that:-
(a) the execution of the punishment or the order H
694 SUPREME COURT REPORTS [2015] 4 S.C.R.
A appealed against be suspended;
(b) if the appellant is in confinement, he be released on
bail; Provided that where an appellant satisfies the
Tribunal that he intends to prefer an appeal, the Tribunal
8 may also exercise any of the powers conferred under
clause (a) or clause (b), as the case may be.
85. The Committee enquired about the nature of the
proposed Tribunal, whether it would be a judicial, quasi
c judicial body in the line of Central Administrative Tribunal,
the Ministry replied:-
"Since the Armed Forces Tribunal would be dealing with
offences, legally awardable punishments and termination
of service etc. and the Tribunal is being armed with the
D
powers of contempt; it would be a judicial body. It would
be a permanent Tribunal and a Court of record."
86. When Committee asked, whether appeal would be
preferred in High Courts or Supreme Court, the Ministry
E stated:
"Clause 30 of the Armed Forces Tribunal Bill, 2005
provides that an appeal against the final decision or
order of Armed Forces Tribunal shall lie to the Supreme
F Court. Under the Constitution, the power of
-
~
superintendence of High Court is already excluded
against a Court Martial verdict."
87. On a specific query to the representatives of the
G Ministry of Law & Justice, on the issue of appeal
against the order of the Tribunal, they stated:-
"In a case, L. Chandrakumar's case, which was relating
to the Central Administrative Tribunal, which was
H established by an Act of Parliament, similar provisions
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 695
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
were there where an appeal against the orders of the A
Central Administrative Tribunal was preferred to the
Supreme Court but for some time it was entertained
by the Supreme Court. But later on, subsequently in L.
Chandrakumar's case, the Supreme Court said that the
powers of the High Court under articles 226 and 227 B
cannot be taken away by an Act of Parliament. Thus,
you know again from the orders of Central
Administrative Tribunal, we have started preferring
appeals to the High Court under article 226."
c
88. They further supplemented:
"It is not only in one case but also subsequently in a
number of cases, the Supreme Court reiterated that
principle. Many High Courts have reiterated that D
principle. When in another Bill, that is, National Tax
Tribunal was being processed in this Committee Room
by another Committee, there also many hon. Members
of the Standing Committee said that in view of L.
Chandrakumar's case, you cannot have a touch tribunal E
from which you can directly go to the Supreme Court and
we had accede that before that Committee tha article
226 is still there with the High Court. The minute you
abolish article 226, then it will be treated by the Supreme
Court as a violation of the essential characteristics of F
the basic structure of the Constitution, which is a
limitation even on the power of Parliament to amend the
Constitution."
89. When the Committee asked the Ministry of Law & G
Justice regarding possible solution of it, they stated that
"We have processed the Bill. In the Bill we have taken
the precaution that the Chairman of the Tribunal should
be a retired judge or a sitting judge of the Supreme H
696 SUPREME COURT REPORTS [2015] 4 S. C.R.
A Court. If the Chairman of the Tribunal himself is a
Supreme ~ourt judge, then you know the High Courts
are slightly hesitant in interfering with the judgment.
That is only thing but if a judge finds that there is a
s Constitutional violation of certain fundamental rights or
there is a gross arbitrariness in an order of the Tribunal,
then it will exercise its jurisdiction under article 226."
In this connection, the Ministry of Defence in a written note
c stated:
"The proposed Armed Forces Tribunal Bill, 2005 does
not envisage a situation where an accused can
approach the High Court in an appeal against the order
of the Tribunal. There can be no equation between the
D
High Court and any other Tribunal. On the other hand,
analogy can be drawn between the CAT and the
proposed Armed Forces Tribunal. In CAT, single
member also constitutes a Bench [section 5(6)].
E However, in the Armed Forces Tribunal, the minimum
number of members to constitute a Bench is two.
Further, as opposed to the CAT where the Chairperson
is a serving or retired High Court judge, the Chairperson
of the Armed Forces Tribunal is a retired Supreme Court
F Judge or retired Chief Justice of the High Court. Further
Article 227(iv) of the Constitution excludes the power of
superintendence of High Courts over any court or
Tribunal constituted by or under any law relating to the
Armed Forces. Therefore, an accused cannot go to the
G High Court in appeal against the order of the Armed
Forces Tribunal."
90. The Committee note that clause 30 provides that
subject to provisions of section 31, an appeal shall lie
H to Supreme Court against the final decision or order of
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 697
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
the Tribunal. The Committee, however, are given to A
understand that in the case of L. Chanderkumar, where
appeal against the order of the Central Administrative
Tribunal was preferred to Supreme Court, the Court
stated that powers of the tiigh Court under Articles 226
and 227 cannot be taken away by an Act of Parliament. B
The Committee are of the view that the appeal against
the Tribunal should be preferred as per the provisions
of the Constitution.
NEW DELHI; BALASAHEB VIKHE PATIL, c
16 May, 2006 Chairman,
26 Vaisakha, 1928 (Saka)Standing Committee on
Defence."
D
14. Therefore, it is clear from the scheme of the Act that
jurisdiction of the Tribunal constituted under the Armed Forces
Tribunal Act is in substitution of the jurisdiction of Civil Court
and the High Court so far as it relates to suit relating to
condition of service of the persons subject to Army Act, 1950, E
the Navy Act, 1957 and the Air Force Act, 1950, which are
special laws enacted by the Parliament by virtue of exclusive
legislative power vested under Article 246 of the Constitution
of India read with Entries 1 & 2 of List I of the Seventh F
Schedule.
15. Constitution of India In this context, it is also necessary
to notice Articles 32 and 33 of the Constitution. Article 32 falls
under Chapter Ill of the Constitution which deals with
fundamental right. The said article guarantees the right to G
move before the Supreme Court by appropriate proceedings
for the enforcement of the fundamental rights conferred by the
Part Ill. Article 32 reads as follows:
"Article 32. Remedies for enforcement of rights H
698 SUPREME COURT REPORTS [2015] 4 S.C.R.
A conferred by this Part.-(1) The right to move the
Supreme Court by appropriate proceedings for the
enforcement bf the rights conferred by this Part is
guaranteed.
B (2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
c
(3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may
by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers
D exercisable by the Supreme Court under clause (2). (4)
The right guaranteed by this article shall not be
suspended except as otherwise provided for by this
Constitution."
E 16. Article 33 empowers the Parliament to restrict or
abrogate the application of fundamental rights in relation to
Armed Forces, Para Military Forces, the Police etc. (refer:
Ous Kutilingal Achudan Nair vs.Union of India, (1976) 2 SCC
780). The said article reads as follows:
F
"Article 33. Power of Parliament to modify the rights
conferred by this Part in their application to Forces, etc.-
Parliament may, by law, determine to what extent any of
the rights conferred by this Part shall, in their application
G to,-
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the
maintenance of public order; or
H
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 699
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
(c) persons emplo;ed in any bureau or other A
organisation established by the State for purposes of
intelligence or counter intelligence; or
(d) person employed in, or in connection with, the
telecommunication systems set up for the purposes of B
any Force, bureau or organization referred to in clauses
(a) to (c),
be restricted or abrogated so as to ensure the proper
discharge of their duties and the maintenance of c
discipline among them."
17. Article 226 empowers High Court to issue prerogative
writs. The said Article reads as under:
"Article 226.Power of High Courts to issue certain D
writs.- (1) Notwithstanding anything in article 32 every
High Court shall have power, throughout the territories
in relation to which it exercises jurisdiction, toissue to
any person or authority, including in appropriate cases,
any Government, within those territories directions, E
orders or writs, including 1[writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of
the rights conferred by Part Ill and for any other purpose. F
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government, authority
or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for G
the exercise of such power, notwithstanding that the seat
of such Government or authority or the residence of such
person is not within those territories.
(3) Where any party against whom an interim order, H
700 SUPREME COURT REPORTS [2015] 4 S.C.R.
A whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to,
a petition under clause (1), without-
(a) furnishing to such party copies of such petition and
B all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation
c of such order and furnishes a copy of such application
to the party in whose favour such order has been made
or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
o the copy of such application is so furnished, whichever
is later, or where the High Court is closed on the last
day of that period,,before the expiry of the next day
afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall,
E on the expiry of that period, or, as the case may be, the
expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article
shall not be in derogation of the power conferred on the
F Supreme Court by clause (2) of article 32."
18. Article 227 relates to power of superintendence of
High Courts over all Courts and Tribunals. It reads as follows:
"Article 227. Power of superintendence over all
G courts by the High Court.- 1) Every High Court shall
have superintendence over all courts and tribunals
throughout the territories in relation to which it exercises
jurisdiction.
H (2) Without prejudice to the generality of the foregoing
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 701
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
provision, the High Court may- A
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms
for regulating the practice and proceedings of such
8
courts; and
(c) prescribe forms in which books, entries and accounts
shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be C
allowed to the sheriff and all clerks and officers of such
courts and to attorneys, advocates and pleaders
practising therein:
Provided that any rules made, forms prescribed or o
tables settled under clause (2) or clause (3) shall not be
inconsistent with the provision of any law for the time
being in force, and shall require the previous approval
of the Governor.
E
(4) Nothing in this article shall be deemed to confer on
a High Court powers of superintendence over any court
or tribunal constituted by or under any law relating to the
Armed Forces."
F
19. In this context, it is also necessary to notice Article
136 of the Constitution which provides special leave to appeal
to Supreme Court:
"136.Special leave to appeal by the Supreme Court.-
(1) Notwithstanding anything in this Chapter, the G
Supreme Court may, in its discretion, grant special leave
to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.
H
702 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (2) Nothing in clause ( 1) shall apply to any judgment,
determination, sentence or order passed or made by
any court or tribunal constituted by or under any law
relating to the Armed Forces."
B In view of clause (2) of Article 136 which expressly
excludes the judgments or orders passed by any Court or
Tribunal constituted by or under any law relating to Armed
Forces, the aggrieved persons cannot seek leave under
Article 136 of Constitution of India; to appeal from such
C judgment or order. But right to appeal is available under
Section 30 with leave to appeal under Section 31 of the
Armed Forces Tribunal Act, 2007.
20. We may also refer to Article 227(4) of the
o Constitution, which reads as under:
"Article 227(4) Nothing in this article shall be deemed
to confer on a High Court powers of superintendence
over any court or tribunal constituted by or under any law
E relating to the Armed Forces."
Thus, we find that there is a constitutional bar not only
under Article 136(2) but also under Article 227(4) of the
Constitution of India with regard to entertaining any
F determination or order passed by any court or Tribunal under
law relating to Armed Forces.
21. Judicial review under Article 32 and 226 is a basic
feature of the Constitution beyond the plea of amendability.
While under Article 32 of the Constitution a person has a right
G to move before Supreme Court by appropriate proceedings
for e~ forcement of the rights conferred by Part Ill of the
Constitution, no fundament right can be claimed by any
person to move before the High Court by appropriate
H proceedings under Article 226 for enforcement of the rights
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 703
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
conferred by the Constitution or Statute. A
22. In L. Chandra kumar vs. Union of India, (1997)3 SCC
261 a Bench of seven-Judge while dealing with the essential
and basic features of Constitution - power of review and
. jurisdiction conferred on the High Court under Ar:ticle 226/227 B
and on the Supreme Court under Article 32 held as follows:
"75. In Keshav Singh, (1965) 1 SCR 413 while
addressing this issue, Gajendragadkar, C.J. stated as
follows: (SCC at pp. 493-494) c
"If the power of the High Courts under Article 226 and
the authority of this Court under Article 32 are not subject
to any exceptions, then it would be futile to contend that
a citizen cannot move the High Courts or this Court to
0
invoke their jurisdiction even in cases where his
fundamental rights have been violated. The existence of
judicial power in that behalf must necessarily and
inevitably postulate the existence of a right in the citizen
to move the Court in that behalf; otherwise the power E
conferred on the High Courts and this Court would be
rendered virtually meaningless. Let it not be forgotten
that the judicial power conferred on the High Courts and
this Court is meant for the protection of the citizens'
fundamental rights, and so, in the existence of the said F
judicial power itself is necessarily involved the right of
the citizen to appeal to the said power in a proper case."
(emphasis added)
76. To express our opinion on the issue whether the G
power of judicial review vested in the High Courts and in the
Supreme Court under Articles 226/227 and 32 is part of the
basic structure of the Constitution, we must first attempt to
understand what constitutes the basic structure of the
Constitution. The doctrine of basic structure was evolved in H
704 SUPREME COURT REPORTS [2015] 4 S.C.R.
\
A Kesavananda Bharati case (1993 4 SCC 225). However, as
already mentioned, that case did not lay down that the specific
and particular features mentioned in that judgment alone would
constitute the basic structure of our Constitution. Indeed, in
the judgments of Shelat and Grover, JJ., Hegde and
B Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific
observations to the effect that their list of essential features
comprising the basic structure of the Constitution are
illustrative and are not intended to be exhaustive. In indira
Gandhi case, (1975 Supp SCC 1), Chandrachud, J. held that
C the proper approach for a Judge who is confronted with the
question whether a particular facet of the Constitution is part
of the basic structure, is to examine, in each individual case,
the place of the particular feature in the scheme of our
Constitution, its object and purpose, and the consequences
0
of its denial on the integrity of our Constitution as a
fundamental instrument for the governance of the country.
(supra at pp. 751- 752). This approach was specifically
adopted by Bhagwati, J. in Minerva Mills case [(1980) 3 SCC
E 625] (at pp. 671-672) and is not regarded as the definitive
test in this field of Constitutional Law.
77. We find that the various factors mentioned in the test
evolved by Chandrachud, J. have already been considered
F by decisions of various Benches of this Court that have been
referred to in the course of our analysis. From their
conclusions, many of which have been extracted by us in toto,
it appears that this Court has always considered the power
of judicial review vested in the High Courts and in this Court
G under Articles 226 and 32 respectively, enabling legislative
action to be subjected to the scrutiny of superior courts, to be
integral to our constitutional scheme. While several judgments
have made specific references to this aspect
[Gajendragadkar, C.J. in Keshav Singh case, Beg, J. and
H Khanna, J. in Kesavananda Bharati [pic]case, Chandrachud,
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 705
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
C.J. and Bhagwati, J. in Minerva Mills, Chandrachud, C.J. in A
Fertilizer Kamgar[(1981) 1 sec 568], K.N. Singh, J. in Delhi
Judicial Service Assn. [(1991)4 sec 406], etc.] the rest have
made general observations highlighting the significance of this
feature."
B
23. In S.N. Mukherjee vs.Union of India, (1990)4 SCC
594, this Court noticed the special provision in regard to the
members of the Armed Forces in the Constitution of India and
held as follows:
c
" 42. Before referring to the relevant provisions of the
Act and the Rules it may be mentioned that the
Constitution contains certain special provisions in
regard to members of the Armed Forces. Article 33
empowers Parliament to make law determining the o
extent to which any of the rights conferred by Part Ill shall,
in their application to the members of the Armed Forces
be restricted or abrogated so as to ensure the proper
discharge of their duties and the maintenance of
discipline amongst them. By clause (2) of Article 136 the E
appellate jurisdiction of this Court under Article 136 of
the Constitution has been excluded in relation to any
judgment, determination, sentence or order passed or
made by any court or tribunal const~uted by or under any
law relating to the Armed Forces. Similarly clause (4) F
of Article 227 denies to the High Courts the power of
superintendence over any court or tribunal constituted
by or under any law relating to the Armed Forces. This
Court under Article 32 and the High Courts under Article
226 have, however, the power of judicial review in G
respect of proceedings of courts martial and the
proceedings subsequent thereto and can grant
appropriate relief if the said proceedings have resulted.
in denial of the fundamental rights guaranteed under H
706 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Part Ill of the Constitution or if the said proceedings suffer
from a jurisdictional error or any error of law apparent
on the face of the record."
24. A three-Judge Bench of this Court in R.K. Jain vs.
B Union of India & ors., (1993) 4 SCC 119, observed:
"66. In S.P. Sampath Kumar v. Union of India this Court
held that the primary duty of the judiciary is to interpret
the Constitution and the laws and this would
c predominantly be a matter fit to be decided by the
judiciary, as judiciary alone would be possessed of
expertise in this field and secondly the constitutional and
legal protection afforded to the citizen would become
illusory, if it were left to the executive to determine the
D legality of its own action. The Constitution has, therefore,
created an independent machinery i.e. judiciary to
resolve disputes, which is vested with the power of
judicial review to determine the legality of the legislative
and executive actions and to ensure compliance with the
E requirements of law on the part of the executive and
other authorities. This function is discharged by the
judiciary by exercising the power of judicial review which
is a most potent weapon in the hands of the judiciary
for maintenance of the rule of law. The power of judicial
F review is an integral part of our constitutional system and
without it, there will be no government of laws and the
rule of law would become a teasing illusion and a
promise of unreality. The judicial review, therefore, is a
basic and essential feature of the Constitution and it
G cannot be abrogated without affecting the basic
structure of the Constitution. The basic and essential
feature of judicial review cannot be dispensed with but
it would be within the competence of Parliament to
amend the Constitution and to provide alternative
H
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 707
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
institutional mechanism or arrangement for judicial A
[pic]review, provided it is no less efficacious than the
High Court. It must, therefore, be read as implicit in the
constitutional scheme that the law excluding the
jurisdiction of the High Court under Articles 226 and 227
permissible under it, must not leave a void but it must B
set up another effective institutional mechanism or
authority and vest the power of judicial review in it which
must be equally effective and efficacious in exercising
the power of judicial review. The tribunal set up under
the Administrative Tribunals Act, 1985 was required to C
interpret and apply Articles 14, 15, 16 and 311 in quite
a large number of cases. Therefore, the personnel
manning the administrative tribunal in their
determinations not only require judicial approach but also
0
knowledge and expertise in that particular branch of
constitutional and administrative law. The efficacy of the
administrative tribunal and the legal input would
undeniably be more important and sacrificing the legal '
input and not giving it sufficient weightage would E
definitely impair the efficacy and effectiveness of the
Administrative Tribunal. Therefore, it was held that an
appropriate rule should be made to recruit the members;
and to consult the Chief Justice of India in
recommending appointment of the Chairman, Vice- F
Chairman and Members of the Tribunal and to constitute
a committee presided over by Judge of the Supreme
Court to recruit the members for appointment. In M.B.
Majumdar v. Union of India when the members of CAT
claimed parity of pay and superannuation as is available G
to the Judges of the High Court, this Court held that they
are not on a par with the judges but a separate
mechanism created for their appointment pursuant to
Article 323-A of the Constitution. Therefore, what was
meant by this Court in Sampath Kumar case ratio is that H
708 SUPREME COURT REPORTS [2015] 4 S.C.R.
A the tribunals when exercise the power and functions, the
Act created institutional alternative mechanism or
authority to adjudicate the service disputations. It must
be effective and efficacious to exercise the power of
judicial review. This Court did not appear to have meant
B that the tribunals· are substitutes of the High Court under
Articles 226 and 227 of the Constitution. J.B. Chopra v.
Union of India merely followed the ratio of Sampath
Kumar."
C 25. From the aforesaid decisions of this Court in L.
Chandra and S.N. Mukherjee, we find that the power of
judicial review vested in the High Court under Article 226 is
one of the basic essential features of theConstitution and any
legislation including Armed Forces Act, 2007 cannot override
D or curtail jurisdiction of the High Court under Article 226 of the
Constitution of India.
26. Basic principle for exercising power under
Article 226 of the Constitution:
E
In Babubhai Muljibhai Patel vs. Nandlal Khodidas
Barot and others, AIR 1974 SC 2105 this Court held as
follows:
"9 ..... Exercise of the jurisdiction is no doubt
F
discretionary, but the discretion must be exercised on
sound judicial principles. When the petition raises
complex questions of fact, which may for their
determination require oral evidence to be taken, and on
G that account the High Court is of the view that the
dispute should not appropriately be tried in a writ
petition, the High Court may decline to try a petition (See
Gunwant Kaur v.Bhatinda Municipality, AIR 1970 SC
802). If, however.on consideration of the nature of the
H controversy, the High Court decides, as in the present
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 709
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
case, that it should go into a disputed question of fact A
and the discretion exercised by the High Court appears
to be sound and in conformity with judicial principles, this
Court would not interfere in appeal with the order made
by the High Court in this respect."
B
27. In Mafatlal Industries Ltd. and others vs.Union of India
and others, (1997) 5 sec 536, a nine-Judge Bench of this
Court while considering the Excise Act and Customs Act held
that the jurisdiction of the High Court under Article 226 and
this Court under Article 32 though cannot be circumscribed C
by the provisions of the said enactments, they will certainly
have due regard to the legislative intent evidenced by the
provisions of the said Acts and would exercise their
jurisdiction consistent with the provisions of the Act. This Court
he~: D
"108. The discussion in the judgment yields the following
propositions. We may forewarn that these propositions
are set out merely for the sake of convenient reference
and are not supposed to be exhaustive. In case of any E
doubt or ambiguity in these propositions, reference must
be had to the discussion and propositions in the body
of the judgment.
(i) ........... While the jurisdiction of the High Courts under F
Article 226 - and of this Court under Article 32 - cannot
be circumscribed by the provisions of the said
enactments, they will certainly have due regard to the
legislative intent evidenced by the [pic]provisions of the
said Acts and would exercise their jurisdiction consistent G
with the provisions of the Act. The writ petition will be
considered and disposed of in the light of and in
accordance with the provisions of Section 11-B. This is
for the reason that the power under Article 226 has to
be exercised to effectuate the rule of law and not for H
710 SUPREME COURT REPORTS [2015] 4 S.C.R.
A abrogating it.
Xxx xxx xxx xxx
28. In Kanaiyalal Lalchand and Sachdev and others vs.
B State of Maharasthra and others, (2011) 2 SCC 782, this
Court considered the question of maintainability of the writ
petition while an alternative remedy is available. This Court
upheld the decision of the Bombay High Court dismissing the
writ petition filed by the appellants therein on the ground of
C existence of an efficacious alternative remedy under Section
17 of SARFASI Act and held:
"23. In our opinion, therefore, the High Court rightly
dismissed the petition on the ground that an efficacious
remedy was available to the appellants under Section
D
17 of the Act. It is well settled that ordinarily relief under
Articles 226/227 of the Constitution of India is not
available if an efficacious alternative remedy is available
to any aggrieved person .. (See Sadhana Lodh v.
National Insurance Co. Ltd., Surya Dev Rai v. Ram
E
Chander Rai and SBI v. Allied Chemical Laboratories?.)
24. In City and Industrial Development Corpn. v. Dosu
Aardeshir Bhiwandiwala this Court had obseNed that:
(SCC p. 175, para 30)
F
"30. The Court while exercising its jurisdiction under
Article 226 is duty- bound to consider whether:
(a) adjudication of the writ petition involves any complex
G and disputed questions of facts and whether they can
be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy
H
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 711
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
for the resolution of the dispute; A
(d) the person invoking the jurisdiction is guilty of
unexplained delay and !aches;
(e) ex facie barred by any laws of limitation;
B
(f) grant of relief is against public policy or barred by any
valid law; and host of other factors."
29. In Nivedita Sharma vs. Cellular Operators Association
of India and others, (2011)14 SCC 337, this Court noticed that C
when a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring
the statutory dispensation. The Court further noticed the
previous decisions of this Court wherein the Court adverted
to the rule of self-restraint that writ petition will not be D
entertained if an effective remedy is available to the
aggrieved person as follows: ·
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa
this Court observed: (SCC pp. 440-41, para 11) E
"11 .... It is now well recognised that where a right or
liability is created by a statute which gives a special
remedy for enforcing it, the remedy provided by that
statute only must be availed of. This rule was stated with F
great clarity by Willes, J. in Wolverhampton New
Waterworks Co. v. Hawkesford in the following passage:
(ER p. 495)
' ... There are three classes of cases in which a liability G
may be established founded upon a statute .... But there
is a third class viz. where a liability not existing at
common law is created by a statute which at the same
time gives a special and particular remedy for enforcing
it. ... The remedy provided by the statute must be H
712 SUPREME COURT REPORTS [2015] 4 S.C.R.
A followed, and it is not competent to the party to pursue
the course applicable to cases of the second class. The
form given by the statute must be adopted and adhered
to.'
s The rule laid down in this passage was approved by the
House of Lords in Neville v. London Express
Newspapers Ltd. and has been reaffirmed by the Privy
Council in Attorney General of Trinidad and Tobago v.
Gordon Grant and Co. Ltd. and Secy. of State v. Mask
C and Co. It has also been held to be equally applicable
to enforcement of rights, and has been followed by this
Court throughout. The High Court was therefore justified
in dismissing the writ petitions in limine."
o 14. In Mafatlal Industries Ltd. v. Union of India B.P.
Jeevan Reddy, J. (speaking for the majority of the larger
Bench) observed: (SCC p. 607, para 77)
"77 .... So far as the jurisdiction of the High Court under
E Article 226-or for that matter, the jurisdiction of this Court
under Article 32-is concerned, it is obvious that the
provisions of the Act cannot bar and curtail these
remedies. ft is, however, equally obvious that while
[pic]exercising the power under Article 226/Article 32,
F the Court would certainly take note of the legislative
intent manifested in the provisions of the Act and would
exercise their jurisdiction consistent with the provisions
of the enactment."
G 15. In the judgments relied upon by Shri Vaidyanathan,
which, by and large, reiterate the proposition laid down
in Baburam Prakash Chandra Maheshwari v. Antarim
Zila Parishad, it has been held that an alternative
remedy is not a bar to the entertaining of writ petition
H filed for the enforcement of any of the fundamental rights
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 713
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
or where there has been a violation of the principles of A
natural justice or where the order under challenge is
wholly without jurisdiction or the vires of the statute is
under challenge.
16. It can, thus, be said that this Court has recognised B
some exceptions to the rule of alternative remedy.
However, the proposition laid down in Thansingh
Nathmal v. Supt. of Taxes8 and other similar judgments
that the High Court will not entertain a petition under
Article 226 of the Constitution if an effective alternative C
remedy is available to the aggrieved person or the
statute under which the action complained of has been
taken itself contains a mechanism for redressal of
grievance still holds the field."
D
30. In Executive Engineer, Southern Electricity Supply
Company of Orissa Limited (SOUTHCO) and another vs. Sri
Seetaram Rice Mill, (2012) 2 SCC 108, a three-Judge Bench
held:
E
"80. It is a settled canon of law that the High Court would
not normally interfere in exercise of its jurisdiction under
·Article 226 of the Constitution of India where statutory
alternative remedy is available. It is equally settled that
this canon of law is not free of exceptions. The courts, F
including this Court, have taken the view that the
statutory remedy, if provided under a specific [pic]law,
would impliedly oust the jurisdiction of the civil courts.
The High Court in exercise of its extraordinary
jurisdiction under Article 226 of the Constitution of India G
can entertain writ or appropriate proceedings despite
availability of an alternative remedy. This jurisdiction, the
High Court would exercise with some circumspection in
exceptional cases, particularly, where the cases involve
a pure question of law or vires of an Act are challenged. H
714 SUPREME COURT REPORTS [2015] 4 S.C.R.
A This class of cases we are mentioning by way of
illustration and should not be understood to be an
exhaustive exposition of law which, in our opinion, is
neither practical nor possible to state with precision. The
availability of alternative statutory or other remedy by
B itself may not operate as an absolute bar for exercise
of jurisdiction by the courts. It will normally depend upon
the facts and circumstances of a given case. The further
question that would inevitably come up for consideration
before the Court even in such cases would be as to what
c extent the jurisdiction has to be exercised.
81. Should the courts determine on merits of the case
or should they preferably answer the preliminary issue
or jurisdictional issue arising in the facts of the case and
D remit the matter for consideration on merits by the
competent authority? Again, it is somewhat difficult to
state with absolute clarity any principle governing such
exercise of jurisdiction. It always will depend upon the
facts of a given case. We are of the considered view
that interest of administration of justice shall be better
subserved if the cases of the present kind are heard by
the courts only where they involve primary questions of
jurisdiction or the matters which go to the very root of
jurisdiction and where the authorities have acted beyond
F
the provisions of the Act. However, it should only be for
the specialized tribunal or the appellate authorities to
examine the merits of assessment or even the factual
matrix of the case."
G 31. In Cicily Kallarackal vs. Vehicle Factory 2012(8) SCC
524, the Division Bench of this Court held:
"4. Despite this, we cannot help but state in absolute
terms that it is not appropriate for the High Courts to
H entertain writ petitions under Article 226 of the
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 715
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Constitution of India against the orders passed by the A
Commission, as a statutory appeal is provided and lies
to this Court under the provisions of the Consumer
Protection Act, 1986. Once the legislature has provided
for a [pic]statutory appeal to a higher court, it cannot be
proper exercise of jurisdiction to permit the parties to B
bypass the statutory appeal to such higher court and
entertain petitions in exercise of its powers under Article
226 of the Constitution of India. Even in the present case,
the High Court has not exercised its jurisdiction in
accordance with law. The case is one of improper C
exercise of jurisdiction. It is not expected of us to deal
with this issue at any greater length as we are
dismissing this petition on other grounds.
xxx xxx xxx xxx D
9.......... we hereby make it clear that the orders of the
Commission are incapable of being questioned under
the writ jurisdiction of the High Court, as a statutory
appeal in terms of Section 27-A(1)(c) lies to this Court. E
Therefore, we have no hesitation in issuing a direction
of caution that it will not be a proper exercise of
jurisdiction by the High Courts to entertain writ petitions
against such orders of the Commission."
F
32. Another Division.Bench of this Court in Commissioner
of Income Tax and others vs. Chhabil Dass Agrawal, (2014)1
sec 603 held:
"11. Before discussing the fact proposition, we would G
notice the principle of law as laid down by this Court. It
is settled law that non-entertainment of petitions under
writ jurisdiction by the High Court when an efficacious
alternative remedy is available is a rule of self-imposed
limitation. It is essentially a rule of policy, convenience H
716 SUPREME COURT REPORTS [2015] 4 S.C.R.
A and discretion rather than a rule of law. Undoubtedly, it
is within the discretion of the High Court to grant relief
under Article 226 despite the existence of an alternative
remedy. However, the High Court must not interfere if
there is an adequate efficacious alternative remedy
B available to the petitioner and he has approached the
High Court without availing the same unless he has
made out an exceptional case warranting such
interference or there exist sufficient grounds to invoke
the extraordinary jurisdiction under Article 226. (See
c State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co.
Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil
Corpn. Ltd. and State of H.P. v. Gujarat Ambuja Cement
Ltd.
D 12. The Constitution Benches of this Court in K.S.
Rashid and Son v. Income Tax Investigation
Commission, Sangram Singh v. Election Tribunal, Union
of India v. T.R. Varma, State of U.P. v. Mohd. Nooh2 and
K.S. Venkataraman and Co. (P) Ltd. v. State of Madras
E have held that though Article 226 confers very wide
powers in the matter of issuing writs on the High Court,
the remedy of writ is absolutely discretionary in
character. If the High Court is satisfied that the aggrieved
party can have an adequate or suitable relief elsewhere,
F
it can refuse to exercise its jurisdiction. The Court, in
extraordinary circumstances, may exercise the power if
it comes to the conclusion that there has been a breach
of the principles of natural justice or the procedure
G required for decision has not been adopted. [See N.T.
Veluswami Thevar v. G. Raja Nainar, Municipal
[pic]Council, Khurai v. Kamal Kumar, Siliguri Municipality
v. Amalendu Das, S.T. Muthusami v. K. Natarajan,
Rajasthan SRTC v. Krishna Kant, Kerala SEB v. Kurien
H E.Kalathil, A. Venkatasubbiah Naidu v. S. Chellappan,
UNION OF INDIAv. MAJOR GENERAL SHRI KANT 717
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
LL. Sudhakar Reddy v. State of AP., Shri Sant Sadguru A
Janardan Swami (Moingiri Maharaj) Sahakari Dugdha
Utpadak Sanstha v. State of Maharashtra, Pratap Singh
v. State of Haryana and GKN Driveshafts (India) Ltd. v.
ITO.]
B
13. In Nivedita Sharma v. Cellular Operators Assn. of
India, this Court has held that where hierarchy of
appeals is provided by the statute, the party must
exhaust the statutory remedies before resorting to writ
jurisdiction for relief and observed as follows: (SCC pp. C
343-45, paras 12-14)
"12. In Thansingh Nathmal v. Supt. of Taxes this Court
adverted to the rule of self-imposed restraint that the writ
petition will not be entertained if an effective remedy is D
available to the aggrieved person and observed: (AIR
p. 1423, para 7)
7 .... The High Court does not therefore act as a court
of appeal against the decision of a court or tribunal, to E
correct errors of fact, and does not by assuming
jurisdiction under Article 226 trench upon an alternative
remedy provided by the statute for obtaining relief.
Where it is open to the aggrieved petitioner to move
another tribunal, or even itself in another jurisdiction for F
obtaining redress in the manner provided by a statute,
the High Court normally will not permit by entertaining a
petition under Article 226 of the Constitution the
machinery created under the statute to be bypassed,
and will leave the party applying to it to seek resort to G
the machinery so set up.'
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa
this Court observed: (SCC pp. 440-41, para 11)
'11. It is now well recognised that where a right or liability H
718 SUPREME COURT REPORTS [2015] 4 S.C.R.
A is created by a statute which gives a special remedy for
enforcing it, the remedy provided by that statute only
must be availed of. This rule was stated with great clarity
by Willes, J. in Wolverhampton New Waterworks Co. v.
Hawkesford in the following passage: (ER p. 495)
B
)()()( )()()( )()()( )()()(
14. In Mafatlal Industries Ltd. v. Union of India B.P.
Jeevan Reddy, J. (speaking for the majority of the larger
c Bench) observed: (SCC p. 607, para 77)
'77 .... So far as the jurisdiction of the High Court under
Article 226-or for that matter, the jurisdiction of this Court
under Article 32-is concerned, it is obvious that the
provisions of the Act cannot bar and curtail these
D
remedies. It is, however, equally obvious that while
exercising the power under Article 226/Article 32, the
Court would certainly take note of the legislative intent
manifested in the provisions of the Act and would
exercise their jurisdiction consistent with the provisions
E
of the enactment.'"
(See G. Veerappa Pillai v. Raman & Raman Ltd., CCE
v. Dunlop India Ltd., Ramendra Kishore Biswas v. State
of Tripura, Shivgonda Anna Patil v. State of
F
Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills
Co. Ltd. v. State of Orissa, Excise and Taxation Officer-
cum-Assessing Authority v. Gopi Nath and Sons,
Whirlpool Corpn. v. Registrar of Trade Marks, [pic]Tin
G Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v.
Jaspal Singh and Punjab National Bank v. O.C.
Krishnan.)
15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of alternative
H remedy i.e. where the statutory authority has not acted
UNION OF INDIAv. MAJOR GENERAL SHRI KANT 719
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
in accordance with the provisions of the enactment in A
question, or in defiance of the fundamental principles of
judicial procedure, or has resorted to invoke the
provisions which are repealed, or when an order has
been passed in total violation of the principles of natural
justice, the proposition laid down in Thansingh Nathmal B
case, Titaghur Paper Mills case and other similar
judgments that the High Court will not entertain a petition
under Article 226 of the Constitution if an effective
alternative remedy is available to the aggrieved person
or the statute under which the action complained of has C
been taken itself contains a mechanism for redressal of
grievance still holds the field. Therefore, when a statutory
forum is created by law for redressal of grievances, a
writ petition should not be entertained ignoring the
0
statutory dispensation."
33. Statutory Remedy
In Union of India vs. Brigadier P.S. Gill, (2012) 4 SCC
463, this Court while dealing with appeals under Section 30 E
of the Armed Forces Tribunal Act following the procedure
prescribed under Section 31 and its maintainability, held as
follows:
"8. Section 31 of the Act extracted above specifically F
provides for an appeal to the Supreme Court but
stipulates two distinct routes for such an appeal. The first
route to this Court is sanctioned by the Tribunal granting
leave to file such an appeal. Section 31 ( 1) in no
uncertain terms forbids grant of leave to appeal to this G
Court unless the Tribunal ertifies that a point of law of
general public importance is involved in the decision.
This implies that Section 31 does not create a vested,
indefeasible or absolute right of filing an appeal to this
Court against a final order or decision of the Tribunal to H
720 SUPREME COURT REPORTS [2015] 4 S.C.R.
A this Court. Such an appeal must be preceded by the
leave of the Tribunal and such leave must in turn be
preceded by a certificate by the Tribunal that a point of
law of general public importance is involved in the
appeal.
B
9. The second and the only other route to access this
Court is also found in Section 31(1) itself. The
expression "or it appears to the Supreme Court [pic]that
the point is one which ought to be considered by that
C Court" empowers this Court to permit the filing of an
appeal against any such final decision or order of the
Tribunal.
10. A conjoint reading of Sections 30 and 31 can lead
o to only one conclusion viz. there is no vested right of
appeal against a final order or decision of the Tribunal
to this Court other than those falling under Section 30(2)
of the Act. The only mode to bring up the matter to this
Court in appeal is either by way of certificate obtained
E from the Tribunal that decided the matter or by obtaining
leave of this Court under Section 31 for filing an appeal
depending upon whether this Court considers the point
involved in the case to be one that ought to be
considered by this Court.
F
11. An incidental question that arises is: whether an
application for permission to file an appeal under
Section 31 can be moved directly before the Supreme
Court without first approaching the Tribunal for a
G certificate in terms of the first part of Section 31 ( 1) of
the Act?
12. In the ordinary course the aggrieved party could
perhaps adopt one of the two routes to bring up the
H matter to this Court but that does not appear to be the
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 721
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
legislative intent evident from Section 31(2) (supra). A A
careful reading of the section shows that it not only
stipulates the period for making an application to the
Tribunal for grant of leave to appeal to this Court but also
stipulates the period for making an application to this
Court for leave of this Court to file an appeal against the B
said order which is sought to be challenged.
13. It is significant that the period stipulated for filing an
application to this Court starts running from the date
beginning from the date the application made to the C
Tribunal for grant of certificate is refused by the Tribunal.
This implies that the aggrieved party cannot approach
this Court directly for grant of leave to file an appeal
under Section 31(1) read with Section 31(2) of the Act.
D
14. The scheme of Section 31 being that an application
for grant of a certificate must first be moved before the
Tribunal, before the aggrieved party can approach this
Court for the grant of leave to file an appeal. The
purpose underlying the provision appears to be that if E
the Tribunal itself grants a certificate of fitness for filing
an appeal, it would be unnecessary for the aggrieved
party to approach this Court for a leave to file such an
appeal. An appeal by certificate would then be
maintainable as a matter of right in view of Section 30 F
which uses the expression "an appeal shall lie to the
Supreme Court". That appears to us to be the true legal
position on a plain reading of the provisions of Sections
30 and 31."
G
Thus, we find that though under Section 30 no person
has a right of appeal against the final order or decision of the
Tribunal to this Court other than those falling under Section
30(2) of the Act, but it is statutory appeal which lies to this
Court. H
722 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 34. The aforesaid decisions rendered by this Court can
be summarised as follows:
(i) The power of judicial review vested in the High Court
under Article 226 is one of the basic essential features
8 of the Constitution and any legislation including Armed
Forces Act, 2007 cannot override or curtail jurisdiction
of the High Court under Article 226 of the Constitution
of lndia.(Refer: L. Chandra and S.N. Mukherjee).
c (ii) The jurisdiction of the High Court under Article 226 and
this Court under Article 32 though cannot be
circumscribed by the provisions of any enactment, they
will certainly have due regard to the legislative intent
evidenced by the provisions of the Acts and would
D exercise their jurisdiction consistent with the provisions
of the Act.(Refer: Mafatlal Industries Ltd.).
(iii) When a statutory forum is created by law for redressal
of grievances, a writ petition should not be entertained
E ignoring the statutory dispensation. (Refer: Nivedita
Sharma).
(iv) The High Court will not entertain a petition under Article
226 of the Constitution if an effective alternative remedy
is available to the aggrieved person or the statute
F
under which the action complained of has been taken
itself contains a mechanism for redressal of grievance.
(Refer: Nivedita Sharma).
35. Article 141 of the Constitution of India reads as
G follows:
"Article 141.Law declared by Supreme Court to be
binding on all courts.- The law declared by the
Supreme Court shall be binding on all courts within the
H territory of India."
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 723
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
36. In Executive Engineer, Southern Electricity Supply A
Company of Orissa Limited(SOUTHCO) this Court observed
that it should only be for the specialised tribunal or the
appellate authorities to examine the merits of assessment or
even the factual matrix of the case.
B
In Chhabil Dass Agrawal this Court held that when a
statutory forum is created by law for redressal of grievances,
a writ petition should not be entertained ignoring the statutory
dispensation.
c
In Cicily Kallarackal this Court issued a direction of
caution that it will not be a proper exercise of the jurisdiction
by the High Court to entertain a writ petition against such
orders against which statutory appeal lies before this Court.
D
In view of Article 141(1) the law as laid down by this Court,
as referred above, is binding on all courts of India including
the High Courts.
37. Likelihood of anomalous situation
E
If the High Court entertains a petition under Article 226
of the Constitution of India C1gainst order passed by Armed
Forces Tribunal under Section 14 or Section 15 of the Act
bypassing the machinery of statute i.e. Sections 30 and 31
of the Act, there is likelihood of anomalous situation for the F
aggrieved person in praying for relief from this Court.
Section 30 provides for an appeal to this Court subject
to leave granted under Section 31 of the Act. By clause (2)
of Article 136 of the Constitution of India, the appellate G
jurisdiction of this Court under A.rticle 136 has been excluded
in relation to any judgment, determination, sentence or order
passed or made by any court or Tribunal constituted by or
under any law relating to the Armed Forces. If any person
aggrieved by the order of the Tribunal, moves before the High H
724 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Court under Article 226 and the High Court entertains the
petition and passes a judgment or order, the person who may
be aggrieved against both the orders passed by the Armed
Forces Tribunal and the High Court, cannot challenge both the
orders in one joint appeal. The aggrieved person may file
B leave to appeal under Article 136 of the Constitution against
the judgment passed by the High Court butin view of the bar
of jurisdiction by clause (2) of Article 136, this Court cannot
entertain appeal against the order of the Armed Forces
C Tribunal. Once, the High Court entertains a petition under
Article 226 of the Constitution against the order of Armed
Forces Tribunal and decides the matter, the person who thus
approached the High Court, will also be precluded from filing
an appeal under Section 30 with leave to appeal under
D Section 31 of the Act against the order of the Armed Forces
Tribunal as he cannot challenge the order passed by the High
Court under Article 226 of the Constitution under Section 30
read with Section 31 of the Act. Thereby, there is a chance
of anomalous situation. Therefore, it is always desirable for
E the High Court to act in terms of the law laid down by this Court
as referred to above, which is binding on the High Court under
Article 141 of the Constitution of India, allowing the aggrieved
person to avail the remedy under Section 30 read with Section
31 Armed Forces Act.
F
38. The High Court (Delhi High Court) while entertaining
the writ petition under Article 226 of the Constitution bypassed
the machinery created under Sections 30 and 31 of Act.
However, we find that Andhra Pradesh High Court and the
G Allahabad High Court had not entertained the petitions under
Article 226 and directed the writ petitioners to seek resort
under Sections 30 and 31 of the Act. Further, the law laid down
by this Court, as referred to above, being binding on the High
Court, we are of the view that Delhi High Court was not
H justified in entertaining the petition under Article 226 of the
UNION OF INDIA v. MAJOR GENERAL SHRI KANT 725
SHARMA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Constitution of India. A
39. For the reasons aforesaid, we set aside the
impugned judgments passed by the Delhi High Court and
upheld the judgments and orders passed by the Andhra
Pradesh High Court and Allahabad High Court. Aggrieved B
persons are given liberty to avail the remedy under Section
30 with leave to appeal under Section 31 of the Act, and if
so necessary may file petition for condonation of delay to avail
remedy before this Court.
c
40. The Civil Appeal Nos.7400, 7375-7376, 7399, 9388,
9389 of 2013 are allowed and the Civil Appeal Nos.7338 of
2013 and 96 of 2014 are dismissed.
Devika Gujral Appeals disposed of.
D
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