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High Courts do not have the jurisdiction to entertain writs against orders of AFT, says Supreme Court [Read the Judgment]

Gaurav Pathak
12 March 2015 4:53 AM GMT
High Courts do not have the jurisdiction to entertain writs against orders of AFT, says Supreme Court [Read the Judgment]
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Answering the question, “whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007  against an order of Armed Forces 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”, the Apex Court has held that the jurisdiction of High Courts is barred.

The judgment delivered by the Bench consisting of Justices S J Mukhopadhaya and N V Ramana has held that when a remedy has been provided under the Act, the High Courts cannot exercise their inherent jurisdiction relating to writs in such cases.

The issue came before the Court as different High Courts had delivered different judgments, leading to a confusion. Noticing the fact that the Delhi High Court in a case had accepted a writ petition despite it being related to the Armed Forces Tribunal Act, the Supreme Court noted, “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 resortunder 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.”

Relying on scheme of the Act, the Apex Court also pronounced, “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 vested under Article 246 of the Constitution of India read with Entries 1 & 2 of List I of the Seventh Schedule.” The Court also found a Constitutional bar on jurisdiction of High Courts in such matters and held,”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.”

The Apex Court also observed that there is going to be a likelihood of anomalous situation if such a jurisdiction is vested with the High Court. The Supreme Court in its judgment said, “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.”

The Supreme Court accordingly set aside the judgment delivered by the Delhi High Court while upholding the orders delivered by Andhra Pradesh High Court and Allahabad High Court, which had refused to entertain writs.

Read the Judgment

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