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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7400 OF 2013

UNION OF INDIA & ORS. … APPELLANTS

VERSUS

MAJOR GENERAL SHRI KANT SHARMA & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NO.7338 OF 2013,

CIVIL APPEAL NOS.7375-7376 OF 2013,

CIVIL APPEAL NO.7399 OF 2013,

CIVIL APPEAL NO.9388 OF 2013,

CIVIL APPEAL NO.9389 OF 2013 AND

CIVIL APPEAL NO.96 OF 2014.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J

In these 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 ‘Áct’), 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

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

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Forces.

Union of India and others are the 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 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 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. 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 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.

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

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provided under Section 30 of the Armed Forces 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 to the law

enacted by the Parliament being the Armed Forces Tribunal, 2007

which is a special enactment exclusively 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 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.

4.Col. A.D. Nargolkar appeared in person made the following

submissions:

(i)The power of judicial review under Article 226 and

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 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

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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.

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 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 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 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 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 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 (except

the Supreme Court or a High Court exercising

jurisdiction under articles 226 and 227 of the

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Constitution) in relation 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 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, as it may deem necessary, that

it is fit for adjudication 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 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—

(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)subject to the provisions of sections 123

and 124 of the Indian Evidence Act, 1872, (1

of 1872) requisitioning any public record or

document or copy of such record or document

from any office;

(e)issuing commissions for the examination

of witnesses or documents;

(f)reviewing its decisions;

(g)dismissing an application for default or

deciding it exparte;

(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 Central Government.

(5) The Tribunal shall decide both questions of

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law and facts that may be raised before it.”

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

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 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 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.

(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.

(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:

Provided that no accused person shall be so

released if there appears reasonable ground for

believing that he 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 –

(a) the finding of the court martial is

legally not sustainable due to any

reason whatsoever; or

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(b) the finding involves wrong decision on

a question of law; or

(c) there was a material irregularity in

the course of the trial resulting in

miscarriage of justice,

but, in any other case, may dismiss the appeal

where the Tribunal considers that no

miscarriage of justice is likely to be caused

or has actually resulted to the appellant:

Provided that no order dismissing the appeal

by the 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.

(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 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 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—

(j) remit the whole or any part of the

sentence, with or without conditions;

(ii) mitigate the punishment awarded;

(iii) commute such punishment to any

lesser punishment or punishments

mentioned in the Army Act, 1950, (46 of

1950) the Navy Act, 1957 (62 of 1957) and

the Air Force Act, 1950, (45 of 1950) as

the case may be;

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(c)enhance the sentence awarded by a court

-martial:

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, on parole with or without

conditions;

(d)suspend a sentence of imprisonment;

(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 criminal court

for the purposes of sections 175, 178, 179,

180, 193, 195, 196 or 228 (45 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

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 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 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 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 from any order or decision of the Tribunal

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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 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 appealed against be suspended; or

(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 may also exercise any of the powers

conferred under clause (a) or clause (b), as the

case may be.

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 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 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.

(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 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 the delay

i.e. to extend the time within which an appeal may be preferred by

the person to the Court under Section 30 or sub-section (2) or

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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, 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. 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:

“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 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 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 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),—

(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

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suit, or other proceeding, so far as

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 the Tribunal may 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 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 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 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 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 the High Court under Section 226

and 227 of the Constitution.

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13.The Parliamentary 10

th

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 replies/advice of the Law Ministry,

relevant portion of which is reproduced below:

“CHAPTER XIV

CLAUSE 30 : JURISDICTION OF TRIBUNAL AND HIGH COURT

IN MATTERS RELATING TO APPEAL

84. Clause 30 provides:-

1. Subject to the provision of section 31, an appeal shall

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 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

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

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 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 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 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

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 stated:

“Clause 30 of the Armed Forces Tribunal Bill, 2005 provides

that an appeal against the final decision or order of Armed

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Forces Tribunal shall lie to the Supreme 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

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

established by an Act of Parliament, similar

provisions were there where an appeal against the

orders of the 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 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.”

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

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

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 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 &

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 Court. If the Chairman of the Tribunal himself

is a Supreme Court 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 Constitutional violation of certain fundamental

rights or there is a gross arbitrariness in an order

of the Tribunal, then it will exercise its

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jurisdiction under article 226.”

In this connection, the Ministry of Defence in a written

note 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 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)]. 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 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 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 to Supreme

Court against the final decision or order of the Tribunal.

The Committee, however, are given to 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 High

Court under Articles 226 and 227 cannot be taken away by an

Act of Parliament. 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,

16 May, 2006 Chairman,

26 Vaisakha, 1928 (Saka)Standing Committee on Defence.”

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, the

Navy Act, 1957 and the Air Force Act, 1950, which are special laws

enacted by the Parliament by virtue of exclusive legislative power

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vested under Article 246 of the Constitution of India read with

Entries 1 & 2 of List I of the Seventh 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 III of

the Constitution which deals with fundamental right. The said

article guarantees the right to move before the Supreme Court by

appropriate proceedings for the enforcement of the fundamental

rights conferred by the Part III. Article 32 reads as follows:

“Article 32. Remedies for enforcement of rights

conferred by this Part .—(1) The right to move the

Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is

guaranteed.

(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.

(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 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.”

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:

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“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 to,—

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with

the maintenance of public order; or

(c) persons employed in any bureau or other

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 any Force,

bureau or organisation 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 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 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,

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 III and for

any other purpose.

(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 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.

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(3) Where any party against whom an interim order,

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 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 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 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, 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 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

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.

(2) Without prejudice to the generality of the

foregoing provision, the High Court may—

(a)call for returns from such courts;

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(b)make and issue general rules and prescribe

forms for regulating the practice and

proceedings of such 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 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 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.

(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.”

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 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.

(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.”

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

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aggrieved persons cannot seek leave under Article 136 of

Constitution of India; to appeal from such 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 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 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

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 to move before

Supreme Court by appropriate proceedings for enforcement of the

rights conferred by Part III of the Constitution, no fundament

right can be 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.

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 Article 226/227 and on the

Page 20 20

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)

“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 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 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 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

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 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 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 the proper approach for a

Page 21 21

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 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

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 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 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 Khanna, J. in Kesavananda Bharati case,

Chandrachud, C.J. and Bhagwati, J. in Minerva

Mills, Chandrachud, C.J. in Fertilizer

Kamgar[(1981) 1 scc 568], K.N. Singh, J. in Delhi

Judicial Service Assn.

[(1991)4 scc 406]

, etc.] the

rest have made general observations highlighting

the significance of this feature.”

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:

” 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

Page 22 22

determining the extent to which any of the rights

conferred by Part III 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

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

constituted by or under any law relating to the

Armed Forces. Similarly clause (4) 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 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 Part III 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. 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 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

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 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

Page 23 23

law. The power of judicial 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 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 institutional mechanism

or arrangement for judicial 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 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

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 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 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-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 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 the

Page 24 24

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 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.”

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 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 India.

26.Basic principle for exercising power under Article 226 of the

Constitution:

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 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 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 controversy,

the High Court decides, as in the present case,

that it should go into a disputed question of

fact 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.”

Page 25 25

27.In Mafatlal Industries Ltd. and others vs.Union of India and

others, (1997) 5 SCC 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 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 held:

“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 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 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 provisions of the said Acts and

would exercise their jurisdiction consistent 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 abrogating it.

Xxx xxx xxx xxx

28.In Kanaiyalal Lalchand and Sachdev and others vs. State of

Maharasthra and others, (2011) 2 SCC 782 , this Court considered

the question of maintainability of the writ petition while an

Page 26 26

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 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 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 Chander Rai and SBI v. Allied Chemical

Laboratories

7

.)

24. In City and Industrial Development Corpn. v.

Dosu Aardeshir Bhiwandiwala this Court had observed

that: (SCC p. 175, para 30)

“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 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 for the resolution of the dispute;

(d) the person invoking the jurisdiction is

guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(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

Page 27 27

India and others, (2011)14 SCC 337 , this Court noticed that 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 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)

“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 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 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 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.’

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 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.”

Page 28 28

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 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. 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 of the enactment.”

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 filed for the

enforcement of any of the fundamental rights or

where there has been a violation of the principles

of 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 some exceptions to the rule of

alternative remedy. However, the proposition laid

down in Thansingh Nathmal v. Supt. of Taxes

8

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 been taken

itself contains a mechanism for redressal of

grievance still holds the field.”

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:

“80. It is a settled canon of law that the High

Court would not normally interfere in exercise of

Page 29 29

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, including this Court, have taken the view

that the statutory remedy, if provided under a

specific 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 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. 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 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 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 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 the provisions of the Act. However, 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.”

31.In Cicily Kallarackal vs. Vehicle Factory 2012(8) SCC 524 ,

Page 30 30

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 entertain writ petitions under

Article 226 of the Constitution of India against

the orders passed by the 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 statutory

appeal to a higher court, it cannot be proper

exercise of jurisdiction to permit the parties to

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 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.

XXXXXXXXXXXX

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. 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.”

32.Another Division Bench of this Court in Commissioner of

Income Tax and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603

held:

“11. Before discussing the fact proposition, we

would 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 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.

Page 31 31

However, the High Court must not interfere if

there is an adequate efficacious alternative

remedy 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 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.

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. Nooh

2

and K.S. Venkataraman and Co. (P) Ltd.

v. State of Madras 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, 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

required for decision has not been adopted. [See

N.T. Veluswami Thevar v. G. Raja Nainar, Municipal

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 E. Kalathil, A. Venkatasubbiah Naidu

v. S. Chellappan, L.L. Sudhakar Reddy v. State of

A.P., Shri Sant Sadguru 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.]

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. 343-45, paras

12-14)

“12. In Thansingh Nathmal v. Supt. of Taxes

Page 32 32

this Court adverted to the rule of self-imposed

restraint that the writ petition will not be

entertained if an effective remedy is 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 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

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 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 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)

xxx xxx xxx xxx

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 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. It

is, however, equally obvious that while exercising

the power under Article 226/Article 32, the Court

Page 33 33

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.’”

(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

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, Tin 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 remedy i.e. where the statutory

authority has not acted in accordance with the

provisions of the enactment in 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 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 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

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 of the

Armed Forces Tribunal Act following the procedure prescribed under

Section 31 and its maintainability, held as follows:

Page 34 34

“8. Section 31 of the Act extracted above

specifically 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 Court

unless the Tribunal certifies 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 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.

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

that the point is one which ought to be considered

by that 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 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 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.

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 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

Page 35 35

up the matter to this Court but that does not

appear to be the legislative intent evident from

Section 31(2) (supra). 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 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 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.

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 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 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.”

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.

34.The aforesaid decisions rendered by this Court can be

summarised as follows:

Page 36 36

(i)The power of judicial review vested in the High Court

under Article 226 is one of the basic essential features

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 India.(Refer: L. Chandra and S.N. Mukherjee).

(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

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

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 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 follows:

“Article 141.Law declared by Supreme Court

to be binding on all courts.- The law

Page 37 37

declared by the Supreme Court shall be

binding on all courts within the territory

of India.”

36.In Executive Engineer, Southern Electricity Supply 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.

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.

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.

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

If the High Court entertains a petition under Article 226 of

the Constitution of India against 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 aggrieved person in

praying for relief from this Court.

Section 30 provides for an appeal to this Court subject to

Page 38 38

leave granted under Section 31 of the Act. By clause (2) of

Article 136 of the Constitution of India, the appellate

jurisdiction of this Court under Article 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 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 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 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 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 the High Court to act in terms of the law

laid down by this Court as referred to above, which is binding on

Page 39 39

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.

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 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 justified in entertaining the petition

under Article 226 of the Constitution of India.

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 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.

Page 40 40

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.

………………………………………………………………………… J.

(SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………………………………… J.

(N.V. RAMANA)

NEW DELHI,

MARCH 11, 2015.