IMPORTANT PONITS
Power of Judicial review under Article 32 and 226 is basic structure of the Constitution. Cannot be overridden or curtailed by any enactment.
On creation of a statutory forum, High Courts should not entertain writ petition.
Principles for exercise of jurisdiction under Article 226 discussed.

JUDGMENT

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 ‘Act’), 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 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 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 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