TaxTMI 
TaxTMI 
2022 (3) TMI 1575
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....dvocates, Mr.S.M. Dalal, Advocate., Mr.Randhir Singh Kalkal, Advocate., Mr.Naveen R.Nath, Sr.Advocate with Mr.Rahul Jain, Advocates. , Mr.P.K.Dhaka, Advocate, Mr.Manoj Kumar Gupta, Advocate, Mr.Deepak Bansal, Advocate, Mr.Girindra Kumar Pathak, Advocate., Mr. Manoj Kr. Gupta, Advocate. For the Respondent: Mr.Vikram Jetly, Advocate. Mr. Jatin Puniyani, Advocate., Mr.Harish Vaidyanathan Shankar, Advocate with Mr.Syed Husain Adil Taqvi, Advocates, Mr.Harish Vaidyanathan Shankar, Advocate with Ms.S.Bushra Kazim and Mr.Karan Chhibber, Advocates, Ms.Suparna Srivastava, CGSC with Mr.Tushar Mathur, Ms. Soumya Singh, Advocates. , Mr.Virender Pratap Singh Charak, Advocate with Ms.Shubhra Parashar, Mr.Pushpender Singh Charak, Mr.Kapil Gaur, Mr.Vaishnav Kirti Singh, Mr.Shubham Ahujam, Mr.Sanjay Singh Chauhan, Mr.Ram Pal Singh Tomar, Mr.Gyanwardhan Singh, Mr.Inderdeep Singh and Mr.Vivek Nagar, Advocates., Mr.G.D.Shanna, Advocate with Mr.Shoumendra Mukharjee, Advocate., Mr.Dev P Bhardwaj, Advocate with Mr.Mohit Bhardwaj, Advocate, Mr.Rajesh Kumar Das, Advocate for R-1. Mr.Anshuman, Advocate, Mr.Abhishek Singh, Advocate., Ms.Amrita Prakash, Advocate, Mr.Harish Vaidyanathan Shankar, Advoc....
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....C (L&S) 577] and S.N. Mukherjee [(1990) 4 SCC 594 : 1990 SCC (Cri) 669] .) (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd. [(1997) 5 SCC 536] ) (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] .) (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] .) xxxx xxxx xxxx Likelihood of anomalous situation 42. If the High Court entertains a petit....
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....ht to appeal to the Supreme Court under Sections 30 & 31 of the Armed Forces Tribunal Act, 2007 is limited and is not an alternative effective remedy. They stated that a litigant cannot be left high and dry without there being any provision for further appeal against the Armed Forces Tribunal. 7. Learned counsel for the Petitioners submitted that the Constitution Bench of the Supreme Court in Rojer Mathew vs. South Indian Bank Ltd. & Ors. (2020) 6 SCC 1, after considering the judgment passed by the Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra), has held that Article 136 (2) of the Constitution of India prohibits direct appeal to the Supreme Court from an order passed by Armed Forces Tribunal. They stated that the Constitution Bench has further held that the said provision does not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226 of the Constitution of India. They emphasised that the Constitution Bench in Rojer Mathew (supra) has held that the limited ouster made by Article 227(4) of the Constitution of India only operates qua administrative supervision by the High Court an....
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.... According to them applying the Inversion Test, it is trite that paragraph 215 of Rojer Mathew (supra) is not ratio decidendi and thereby, not a binding precedent. 12. They further submitted that the judgment passed by the Supreme Court in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra) had not been expressly over-ruled either in Rojer Mathew (supra) or in Balkrishna Ram (supra) and, thus, the judgment of this Court in Brijlal Kumar & Ors. (supra) was per incuriam. 13. In the alternative, they submitted that the Constitution Bench in Rojer Mathew (supra) had not considered the effect of Article 33 of the Constitution of India, which reads as under:- "33. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,- (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) person employed in, or in connection with, the telecommunication systems set ....
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....ovisions of the Act is not consistent with the provisions of any of the Articles in Part III of the Constitution, it must be taken that to the extent of the inconsistency Parliament had modified the fundamental rights under those Articles in their application to the person subject to that Act. Any such provision in the Act is as much law as the entire Act. We agree that each and every provision of the Act is a law made by Parliament and that if any such provision tends to affect the fundamental rights under Part III of the Constitution, that provision does not, on that account, become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental rights.... Section 21 merely confers an additional power to modify rights conferred by Article 19(1)(a) and (c) by Rules and such rules may set out the limits of restriction. But the specific provision does not derogate from the generality of power conferred by Article 33. Therefore, it is not possible to accept the submission that the law prescribing procedure for trial of offences by court martial must ....
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..... The argument that in view of Article 227(4) of the Constitution, the High Court has no power of judicial superintendence over the Armed Forces Tribunal is untenable as Article 227(4) only takes away the administrative superintendence of Courts over the Tribunal relating to armed forces. In, L.Chandra Kumar (supra) and Rojer Mathew (supra), it has been categorically held by the Supreme Court that the power of judicial superintendence has not and can never be taken away. 20. Consequently, the power of judicial review under Articles 226 and 227 of the Constitution vests with the High Court even with regard to judgments and orders passed by the Armed Forces Tribunal and this power is a part of the basic structure of the Constitution as has been held in L.Chandra Kumar (supra) Rojer Mathew (supra)^3. ARTICLE 33 OF THE CONSTITUTION DOES NOT RESTRICT OR CURTAIL THE RIGHT OF PERSON IN UNIFORM TO FILE A WRIT PETITION 21. Article 33 of the Constitution does not restrict or curtail the right of a person in uniform to file a writ petition. By virtue of Article 33 of the Constitution, the Parliament, while enacting the Army Act (Rule 21), the Air Force Act and the Navy Act, has only ....
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....ens and the power of judicial review also vests in the High Courts. (See: The Law Commission of India's Report No.272) NEITHER SECTION 30 NOR SECTION 31 OF THE ARMED FORCES TRIBUNAL ACT, 2007 CONSTITUTES AN ALTERNATIVE EFFECTIVE REMEDY IN ALL CASES 26. In Ex. Lac Yogesh Pathania vs. Union of India & Others, (2019) 4 SCC 311, it has been held that the Apex Court will exercise jurisdiction under Sections 30 and 31^6 of the Armed Forces Tribunal Act, 2007 only where substantial question of law of general public importance is involved. 27. The Law Commission of India in its Report No.272, after relying on Segal, Zeev, "The Power to Probe into Matters of Vital Public Importance", 58 TLR 941 (1984), has opined that a question cannot be said to be of public importance unless it is important throughout the State. The Law Commission has opined that the matters of public importance may mean matters relating to Governmental action or inaction which arouse something in the nature of a nationwide crisis of confidence. 28. In Council of Scientific and Industrial Research and Anr. Vs. K.G.S. Bhatt and Anr., (1989) 4 SCC 635, Union of India and Ors. Vs. CDR. Ravindra V. Desai, (2018) 1....
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....s of law to be answered by the Constitution Bench. One of the issues framed for consideration by the Constitution Bench was Question No.7, namely, "Whether direct statutory appeals from tribunals to the Supreme Court ought to be detoured?" 37. The said question was dealt with by the Constitution Bench from paragraph 194 of the said judgment and in paragraph 200 (xvi), Section 30 of the Armed Forces Tribunal Act, 2007 was expressly referred to. After discussing the judgment in Maj. Gen. Shri Kant Sharma (supra) as well as the judgment in L.Chandra Kumar (supra), the Constitution Bench in Rojer Mathew (supra) gave its conclusion in paragraph 215 that Article 136(2) of the Constitution prohibits direct appeal to the Supreme Court from an order passed by the Armed Forces Tribunal but does not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226 of the Constitution. 38. In paragraphs 12, 13 and 14 of the judgment passed in Balkrishna Ram (supra), the Supreme Court has held that the reliance placed by the respondents therein on the judgment passed in Union of India and Ors. vs. Maj. Gen. Shri Kant Sharma and Anr. (supra) ....
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....g errors of jurisdiction or errors apparent on the face of record or if the Tribunal has acted illegally. [See:Hari Vishnu Kamath versus Syed Ahmad Ishaque and Ors., (1955) 1 SCR 1104^9 and Surya Dev Rai Vs. Ram Chander Rai & Ors, (2003) 6 SCC 675^10. Further, the aforesaid judgment was followed by the Supreme Court in the case of Sameer Suresh Gupta Through PA Holder Vs. Rahul Kumar Agarwal, (2013) 9 SCC 374 and it was held that the power of superintendence conferred on Article 227 of the Constitution is supervisory and that the power of judicial superintendence must be exercised sparingly to keep the subordinate Courts and Tribunals within the limits of their authority. Consequently, a writ petition is not an appeal in disguise. It is not even a substitute for an appeal. CONCLUSION 42. To conclude, a Tribunal has to function under the Statute, whereas the higher judiciary (High Courts and the Supreme Court), which is a Constitutional authority, is entrusted not only with the task of interpreting the laws and the Constitution, but also with judicial superintendence over the Tribunals in order to preserve the independence of judiciary while discharging the sovereign function ....
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.... Kant Sharma and Anr.(supra) by a Bench of two Judges cannot overrule the law already laid down. It has also held that the remedy of a direct appeal from the order passed by Armed Forces Tribunal to the Supreme Court would be extremely difficult and beyond the monetary reach of an ordinary litigant. Consequently, the Supreme Court in Balkrishna Ram (supra) reinstated the right to challenge verdicts of the Armed Forces Tribunal in the High Courts. 48. However, the Writ Court while examining the judgment/order passed by the Tribunal, will exercise the power of judicial review which means that the Court shall examine the decision-making process and interfere only for correcting errors of jurisdiction or errors apparent on the face of record or if the Tribunal acts illegally. (See: Hari Vishnu Kamath (supra); Surya Dev Rai (supra) and Rajendra Diwan versus Pradeep Kumar Ranibala and Anr. (2019) 20 SCC 143.) 49. This Court would like to emphasise, with all the power that it commands, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. Further, the writ jurisdiction of High Court cannot be exercised "in the cloak o....
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....their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided." 3 215. It is hence clear post L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] that writ jurisdiction under Article 226 does not limit the powers of High Courts expressly or by implication against military or armed forces disputes. The limited ouster made by Article 227(4) only operates qua administrative supervision by the High Court and not judicial review. Article 136(2) prohibits direct appeals before the Supreme Court from an order of Armed Forces Tribunals, but would not prohibit an appeal to the Supreme Court against the judicial review exercised by the High Court under Article 226....... 217. The jurisdiction under Article 226, being part of the basic structure, can neither be tampered with nor diluted. Instead, it has to be zealously protected and cannot be circumscribed by the provisions of any enactment, even if it be formulated for expeditious disposal and early ....
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....larger public concern. Functioning of the Supreme Court was not to remedy a particular litigant's wrong, but consideration of cases involving principles of wide public or governmental interest which ought to be authoritatively declared by the final court. The docket of the court should be kept down so that its volume did not preclude wise adjudication. xxx xxx xxx 40. While there may be no lack of legislative competence with Parliament to make provision for direct appeal to the Supreme Court from orders of tribunals but the legislative competence is not the only parameter of constitutionality. It can hardly be gainsaid that routine appeals to the highest court may result in obstruction of the constitutional role assigned to the highest court as observed above. This may affect the balance required to be maintained by the highest court of giving priority to cases of national importance, for which larger Benches may be required to be constituted. Routine direct appeals to the highest court in commercial litigation affecting individual parties without there being any issue of national importance may call for reconsideration at appropriate levels." 5 The Law Commissio....
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....ction, parties must have a right to approach the High Court under Article 226 for the reason that a remedy under Article 136 is not by way of statutory appeal. The issue is pending for consideration before the larger Bench of the Supreme Court". 6 "Section 30. Appeal to Supreme Court. - (1) Subject to.......31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal............provided there shall be no appeal against an interlocutory order of the Tribunal. Section 31. Leave to appeal. - (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal.........that a point of law of general public importance is involved.......or it appears to the Supreme Court that the point is one which ought to be considered by that Court." 7 In Director of Settlements, A.P. and Ors. Vs. M.R. Apparao and Anr., (2002) 4 SCC 638, the Apex Court has held as under:- "7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law....
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....placed by Ms Dwivedi on the judgment of this Court in Shri Kant Sharma [Union of India v. Shri Kant Sharma, (2015) 6 SCC 773 : (2015) 2 SCC (L&S) 386] is entirely misplaced. The issue before this Court in this case was whether the High Court was justified in entertaining writ petitions against the orders of AFT. This is a judgment by two Judges and obviously it cannot overrule the judgment of the Constitution Bench in L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] . The Division Bench, after referring to various judgments including the judgment in L. Chandra Kumar [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] , summarised its findings in para 36 as follows: (Shri Kant Sharma case [Union of India v. Shri Kant Sharma, (2015) 6 SCC 773 : (2015) 2 SCC (L&S) 386] , SCC pp. 804-805)......... 13... We have our doubt, with regard to the correctness of Directions (iii) and (iv) of the judgment, since in our opinion it runs counter to the judgment rendered by the Constitution Bench. 14... There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illeg....
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.... natural justice where there is no procedure specified, and thereby occasioning failure of justice. xxx xxx xxx (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution....