- (1.) The Reference A final order of the Armed Forces Tribunal at its Lucknow Bench has been challenged in this petition under Article 226 of the Constitution. A preliminary objection was raised before the Division Bench to the maintainability of the petition founded on a judgment of a Division Bench of this Court in Surendra Bahadur Singh Vs. Armed Forces Tribunal, Regional Bench, Lucknow & Ors, 2012 3 ADJ 655 that (i) no writ would lie before the High Court against a final order of the Armed Forces Tribunal, since an appeal lies to the Supreme Court under Section 31 (1) of the Armed Forces Tribunal Act, 2007; and (ii) since a statutory remedy of an appeal under Sections 30 and 31 is available against a final order of the Tribunal made in exercise of powers under Section 14, this Court ought not to entertain the petition. The Division Bench found itself unable to agree with the earlier decision in Surendra Bahadur Singh .
(2.) The following questions have been referred for consideration of a larger Bench (Order dated 28 March 2014 in this petition) : "(a) Whether the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution of India against the final order of the Tribunal made under Section 14 can be said to have been taken away by any stretch of interpretation of the statutory provisions of the Armed Forces Tribunal Act, 2007. The necessary corollary being that can an act of Parliament whittle down any of the constitutional remedies made available under Article 226 of the Constitution of India, which is one of the basic features of the Constitution of India as laid down in the case of L. Chandra Kumar Vs Union of India. (b) Whether the remedy of judicial review under Article 226 of the Constitution of India can be denied by the High Court to a litigant on the ground that he has a statutory remedy available before the Apex Court by way of an appeal under Section 30/31 of AFT Act, 2007, thereby he loses his constitutional right of judicial review, under Article 226 of the Constitution of India specially in the circumstance when the order of the High Court under Article 226 of the Constitution of India itself can be subjected to challenge before the Apex Court by way of Special Leave to Appeal under Article 136 of the Constitution of India. (c) Whether the High Court may refuse to entertain a writ petition under Article 226 of the Constitution of India, because of availability of statutory alternative remedy only in cases where after exhaustion of such statutory remedy his right to seek judicial review under Article 226 of the Constitution of India is not lost."
(3.) In Surendra Bahadur Singh , the conclusion which was arrived at by the Division Bench was as follows: "Conclusion 43. On the aforesaid discussion, we are of the view that the AFT Act, 2007 does not take away or violate the right of judicial review under Art. 226/227 and Art.32 of the Constitution of India. The writ petitions under Art. 226 of the Constitution of India would be maintainable, where:- (a) it pertains to challenge against the constitutional validity of any of the provisions of the AFT Act, 2007; (b) in the matters relating to armed forces excepted from the jurisdiction of the AFT under Section 3 (o) of the AFT Act, 2007; (c) in the matters of interlocutory orders passed by the AFT; However, no writ will lie in the High Court:- (a) in contempt matters, where statutory appeal is provided to the Supreme Court under Section 30 (2) of AFT Act, 2007; (b) against final orders of the AFT, in which an appeal lies to Supreme Court under Section 31 (1) of AFT Act, 2007; (c) under Art. 227 of the Constitution of India. 44. In the writ petitions before us, the petitioners have challenged the final orders passed by the AFT, without filing an application for leave to appeal to the Supreme Court under Section 31 (1) of the AFT Act, 2007. 45. All the writ petitions are consequently dismissed.";