Armed Forces Tribunal Exercising Similar Jurisdiction As High Court, No Appeal 'Can/Should' Lie Before HCs: Delhi High Court

Months after a division bench of Delhi High Court said the jurisdiction of High Courts under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court, a co-ordinate bench has said that ordinarily, no appeal from a final decision or order of the Armed Forces Tribunal can lie before the High Court.

The division bench of Justice Suresh Kumar Kait and Justice Saurabh Banerjee said there is no provision under The Armed Forces Tribunal Act for an appeal against any such final decision or order of the AFT before any other forum like the High Courts.

"Further, as per Section 31 of the Act, such an appeal to the Apex Court shall lie within 30 days from the date of the said decision of the Tribunal with the leave of the Tribunal or the Apex Court, as the case may be," said the bench.

While observing that all final decisions or orders passed by the AFT can solely be challenged by an aggrieved party before the Supreme Court under Section 30 of the Act and not before the High Courts, the division bench headed by Justice Kait, however, agreed with a view taken by the division bench of Justice Manmohan and Justice Navin Chawla in March this year.

"The High Court is merely playing the role in a supervisory jurisdiction rather than sitting as a Court of appeal over such final decisions or orders passed by the Tribunal. We are fortified with the findings of a Co-ordinate Bench of this Court in Wing Commander Shyam Naithani Vs Union of India & Ors," the bench headed by Justice Kait said.

The court thus reiterated that the scope of an appeal from a final decision or order of the AFT before the High Court is extremely limited and is restricted to the power of judicial review which is to be exercised only when it is examining the decision-making process or when it is to interfere only for correcting the errors of jurisdiction or when it is for correcting errors apparent on the face of the record or when the Tribunal acts illegally.

"Therefore, ordinarily no appeal from a final decision or order of the Tribunal can lie before the High Court," it said.

The court also noted that in terms of Section 34 of the Act, all pending matters before any High Court or other forums immediately before the date of establishment of the AFT under the Act, stood transferred to the tribunal after its constitution. 

It further said: "Accordingly, the Tribunal is exercising the similar jurisdiction and discharging the same function as being exercised by the High Court. Thus, no appeal from the Tribunal can/should lie before the High Court."

The court was dealing with a petition challenging a final order of AFT. The petition is not maintainable in the present form before this Court as the only remedy of challenging the final decision of the Tribunal lies before the Apex Court, it said.

"Be that as it may, as the petitioner is challenging the final decision dated 10.08.2022, for which the limitation expired on 09.09.2022, and though the present petition is not maintainable, we hereby dispose of the present petition alongwith pending applications, by giving liberty to the petitioner to move an appropriate application under Section 32 of the Act before the Hon'ble Supreme Court," said the court.

The division bench headed by Justice Manmohan on March 15 had ruled the AFT Act, 2007 excludes the administrative supervision of the High Court under Article 227(4) of the Constitution but "not judicial superintendence" and "certainly not" jurisdiction under the Article 226 of the Constitution.

"The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a Tribunal for the reason that the Apex Court exercises jurisdiction under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007 only if a point of law of general public importance is involved," the court had observed.

The court had also said that Section 14 of the AFT  Act, 2007 itself explicitly stipulates that though the Tribunal has wide powers, "yet it does not exercise the power of the Supreme Court or the High Court under Articles 226 and 227 of the Constitution of India. Consequently, the Armed Forces Tribunal Act, 2007 itself preserves the writ jurisdiction of the High Courts."

Title: IC-76585M MAJOR NISHANT KAUSHIK vs UNION OF INDIA AND ORS

Citation: 2022 LiveLaw (Del) 980

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