- (1.) The above mentioned two appeals have been filed under Clause X of the Letters Patent against the common judgment dated 7.8.1996 passed by the learned Single Judge in the aforementioned two writ petitions, filed by the respondents herein-petitioners, who were jointly tried by General Court Martial.
(2.) Shri Gurpreet Singh, learned counsel for the appellants has contended that the learned Single Judge failed to appreciate that the convening order dated 25.4.1986 (Annexure P. 10) itself raises ex facie presumption that the order was by the convening authority and he has applied its mind. It was further contended that the respondents did not challenge non-compliance of Rule 37 of the Army Rules, 1954 (hereinafter referred to as "Rules") before the General Court Martial. It has further been contended by learned counsel for the appellants that the learned Single Judge while exercising jurisdiction under Article 226 of the Constitution of India could not sit in appeal against the finding of General Court Martial. It has eminently been contended before us that Brig. Neville Foley was competent and authorized to issue detailment order and finding to the contrary is bad in law. It is also contended that the power of judicial review cannot be stretched now by the respondent if the objection regarding violation of Rule 37 of the Rules had not been taken before the General Court Martial. In support of his contentions, learned counsel for the appellants relied upon Union of India and others v. Gurnam Singh, 2004 2 SCT 405. Learned counsel for the appellants also relied upon Major G.S. Sodhi v. Union of India, 1991 2 SCT 537.
(3.) On the basis of the aforesaid authorities, it is contended that order passed by Brig. Neville Foley could not have been faulted. Towards similar proposition, counsel for the appellants relied upon Rajmal Sharma v. Union of India and others, 1998 3 SCT 143, referred to observations in para 9 of the judgment by Hon'ble Division Bench of Himachal Pradesh High Court, which reads as "But it is forgotten that the jurisdiction depends upon a particular fact and the non-existence of such a fact must be alleged and pleaded. In the present case no such factual plea that the appointment order was not made by the competent officer was raised before the concerned Court. It cannot be raised before us under Article 226 of the Constitution of India" and contended that since no such plea that appointment order was not made by the competent officer was raised before the General Court Martial, it could not be raised before this Court under Article 226 of the Constitution of India.;