- (1.) HEARD learned Counsel for the Petitioner and Mr. Alok Mathur, learned Counsel appearing for the Union of India.
(2.) PRESENT writ petition under Article 226 of the Constitution of India has been preferred against the impugned order dated 5.10.2010, passed by Armed Forces Tribunal (in short, AFT), in Transfer Application No. 68 of 2010 connected with Original Application No. 100 of 2010 by which the tribunal has authorized the Respondents to retrial the Petitioner by General Court Martial. It has been admitted at bar that against the impugned order and for the same cause, the Petitioner had earlier filed a writ petition No. 60 (S/B) of 2011 before High Court of Uttarakhand at Nainital. The High Court of Uttarakhand after hearing the Petitioner's counsel declined to interfere with the impugned order observing that the Petitioner has remedy to move an application for certificate under Section 31 of the Armed Force Tribunals Act to prefer an appeal before Hon'ble Supreme Court. Operative portion of the order dated 5.4.2011, passed by Uttarakhand High Court is reproduced as under: Learned Counsel for the Respondents has raised a question of law as to whether the present writ petition under Article 226 of the Constitution is at all maintainable in view of Sections 30 and 31 of the Act. By considering Sections 30 and 31 of the Act, it does not appear to us that the Petitioner has any unfettered right to prefer an appeal to the Hon'ble Supreme Court. Petitioner would be entitled to prefer an appeal to the Hon'ble Supreme Court only when leave is granted there for by the Tribunal. In as much as the Petitioner has no unfettered right to prefer an appeal to the Hon'ble Supreme Court, he has in fact no other legal remedy available to him. In a situation of that nature, the Petitioner has right to seek judicial review under Article 226 of the Constitution. It is true that under Section 29 of the Act there is an embargo on the part of the Courts to call in question the decisions of the Tribunal, but then as held in by the Hon'ble Supreme Court in the case of L. Chandra Kumar v. Union of India and Ors. reported in : 1997(3) SCC 261, the Parliament cannot take away the constitutional right of citizens to have judicial review under Article 226 of the Constitution of India. There is, thus, no impediment on the part of the Petitioner to approach this Court under Article 226 of the Constitution of India. However, we feel that when a conditional right to prefer an appeal to the Hon'ble Supreme Court has been given to the Petitioner by the Act, it was obligatory on the part of the Petitioner to exhaust the said remedy before approaching this Court under Article 226 of the Constitution of India. In other words, it was obligatory on the part of the Petitioner to approach the Tribunal to seek leave to prefer an appeal to the Hon'ble Supreme Court and only when such leave is refused the Petitioner could approach this Court. For the reasons already indicated above, we refuse to entertain the writ petition on its merit, as discussed above. 3. It has been submitted by the Petitioner's counsel at bar that after dismissal of the writ petition, the Petitioner has preferred a review petition which is pending. It is further submitted that an application has also been moved under Section 31 of the Act but the same is pending. In the pending review, a preliminary objection has been raised by the Respondents' counsel with regard to maintainability of the petition before the High Court.
(3.) THE Petitioner's counsel has relied upon a judgment dated 26.4.2011 of Delhi High Court, passed in Writ Petition (c) No. 13360 of 2009 and other connected writ petitions where the Delhi High Court held that the High Court has jurisdiction to interfere with the order passed by the Armed Forces Tribunal under Articles 226 and 227 of the Constitution of India under the power of superintendence. The learned Counsel has relied upon para 8 of the judgment (supra) of Delhi High Court which is reproduced as under: 89. To summarize, the position would be that the Armed Forces Tribunal, being manned by personnel appointed by the Executive, albeit in consultation with the Chief Justice of India cannot be said to be truly a judicial review forum as a substitute to High Courts which are constitutional courts and the power of judicial review, being a basic feature of the Constitution, under Article 226 and Article 227 of the Constitution of India is unaffected by the Constitution of the Armed Forces Tribunal. Further, Article 227(4) of the Constitution of India takes away only the administrative supervisory jurisdiction of High Court over the Armed Forces Tribunal and does not impact the judicial supervisory jurisdiction over the Armed Forces Tribunal. Thus, decisions by the Armed Forces Tribunal would be amenable to judicial review by High Court under Article 226 as also Article 227 of the Constitution of India.;