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army matters – whether an aggrieved party can file an appeal against any such final decision or order of the Tribunal under Section 30 of the Act aforementioned before this Court without taking resort to the procedure prescribed under Section 31 thereof. = there may be circumstances in which urgent orders may be required to be issued in which event an application for grant of certificate before the Tribunal may prevent the aggrieved party from seeking such orders from this Court. The answer to that question lies in Section 31(3) according to which an appeal is presumed to be pending until an application for leave to appeal is disposed of and if the leave is granted until the appeal is disposed of. An application for leave to appeal is deemed to have been disposed of at the expiration of the time within which it may have been made but is not made within that time. That apart an application for grant of certificate before the Tribunal can be made even orally and in case the Tribunal is not inclined to grant the certificate prayed for, the request can be rejected straightaway in which event the aggrieved party can approach this Court for grant of leave to file an appeal under the second part of Section 31(1). Once such an application is filed, the appeal is treated as pending till such time the same is disposed of. 18. In the result these appeals are dismissed reserving liberty to the appellants to take recourse to Section 31 of the Act. To effectuate that remedy we direct that the period of limitation for making an application for leave to appeal to this Court by certificate shall start from the date of this order. We make it clear that we have not heard learned counsel for the parties on merits of the controversy nor have we expressed any opinion on any one of the contentions that may be available to them in law or on facts. No costs.

REPORTABLE

The dome of the Old Supreme Court Building, .

The dome of the Old Supreme Court Building, . (Photo credit: Wikipedia)

IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 564 OF 2012
[Crl. APPEAL D.NO.(s) 38094 OF 2011]
Union of India & Ors. …Appellants

Versus

Brigadier P.S. Gill …Respondent

And

CIVIL APPEAL NO. 3046 OF 2012

[ CIVIL APPEAL D.NO.(s) 40571 OF 2011]

Krite Kumar Awasthi …Appellant

Versus

Union of India & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. A common question of law as to the maintainability of an appeal
before this Court against a final decision and/or order of the Armed Forces
Tribunal arises for consideration in these two appeals that purport to have
been filed under Section 30 of the Armed Forces Tribunal Act, 2007.
2. The question precisely is whether an aggrieved party can file an
appeal against any such final decision or order of the Tribunal under
Section 30 of the Act aforementioned before this Court without taking
resort to the procedure prescribed under Section 31 thereof. The
appellant’s case is that since the orders under challenge in these appeals
are final orders of the Tribunal, an appeal against the same lies to this
Court as a matter of right, no matter the right to file such an appeal
under Section 30 of the Act is subject to the provisions of Section 31
thereof. The respondents, on the other hand, contended that a conjoint
reading of Sections 30 and 31 of the Act leaves no manner of doubt that an
appeal under Section 30 is maintainable only in accordance with and subject
to the provisions of Section 31. In as much as Section 31 provides for an
appeal to this Court either with the leave of the Tribunal or with the
leave of this Court, no absolute right of appeal against even a final order
or decision is available to the aggrieved party except in cases where the
order passed by the Tribunal is in exercise of its jurisdiction to punish
for contempt. What is the true legal position would necessarily require a
careful reading of the two provisions that may be extracted at this stage:

“30. Appeal to Supreme Court: (1) Subject to the provisions of
Section 31, an appeal shall lie to the Supreme Court against the
final decision or order of the Tribunal (other than an order
passed under Section 19):

Provided that such appeal is preferred within a period of
ninety days of the said decision or order:

Provided further that there shall be no appeal against an
interlocutory order of the Tribunal.

(2) An appeal shall lie to the Supreme Court as of right from
any order or decision of the Tribunal in the exercise of its
jurisdiction to punish for contempt:

Provided that an appeal under this sub-section shall be
filed in the Supreme Court within sixty days from the date of
the order appealed against.

(3) Pending any appeal under sub-section (2), the Supreme
Court may order that –

(a) the execution of the punishment or the order appealed
against be suspended;

(b) if the appellant is in confinement, he be released
on bail:

Provided that where an appellant satisfies the Tribunal
that he intends to prefer an appeal, the Tribunal may also
exercise any of the powers conferred under clause (a) or clause
(b), as the case may be.

31. Leave to appeal: (1) An appeal to the Supreme Court shall
lie with the leave of the Tribunal; and such leave shall not be
granted unless it is certified by the Tribunal that a point of
law of general public importance is involved in the decision, or
it appears to the Supreme Court that the point is one which
ought to be considered by that Court.

(2) An application to the Tribunal for leave to appeal to the
Supreme Court shall be made within a period of thirty days
beginning with the date of the decision of the Tribunal and an
application to the Supreme Court for leave shall be made within
a period of thirty days beginning with the date on which the
application for leave is refused by the Tribunal.

(3) An appeal shall be treated as pending until any
application for leave to appeal is disposed of and if leave to
appeal is granted, until the appeal is disposed of; and an
application for leave to appeal shall be treated as disposed of
at the expiration of the time within which it might have been
made, but it is not made within that time.”
3. A plain reading of Section 30 would show that the same starts with
the expression “subject to the provision of Section 31”. Given their
ordinary meaning there is no gainsaying that an appeal shall lie to this
Court only in accordance with the provisions of Section 31. It is also
evident from a plain reading of sub-section (2) of Section 30 (supra) that
unlike other final orders and decisions of the Tribunal, those passed in
exercise of the Tribunal’s jurisdiction to punish for contempt are
appealable as of right. The Parliament has made a clear distinction between
cases where an appeal lies as a matter of right and others where it lies
subject to the provisions of Section 31. We are not, in the present case,
dealing with an appeal filed under Section 30 sub-section (2) of the Act,
for the Tribunal has not passed the orders under challenge in exercise of
its jurisdiction to punish for contempt. The orders passed by the Tribunal
and assailed in these appeals are orders that will be appealable under
Section 30(1) but only subject to the provisions of Section 31.

4. Section 31 of the Act extracted above specifically provides for an
appeal to the Supreme Court but stipulates two distinct routes for such an
appeal. The first route to this Court is sanctioned by the Tribunal
granting leave to file such an appeal. Section 31(1) in no uncertain terms
forbids grant of leave to appeal to this Court unless the Tribunal
certifies that a point of law of general public importance is involved in
the decision. This implies that Section 31 does not create a vested,
indefeasible or absolute right of filing an appeal to this Court against a
final order or decision of the Tribunal to this Court. Such an appeal must
be preceded by the leave of the Tribunal and such leave must in turn be
preceded by a certificate by the Tribunal that a point of law of general
public importance is involved in the appeal.

5. The second and the only other route to access this Court is also
found in Section 31(1) itself. The expression “or it appears to the Supreme
Court that the point is one which ought to be considered by that Court”
empowers this Court to permit the filing of an appeal against any such
final decision or order of the Tribunal.

6. A conjoint reading of Sections 30 and 31 can lead to only one
conclusion viz. there is no vested right of appeal against a final order or
decision of the Tribunal to this Court other than those falling under
Section 30(2) of the Act. The only mode to bring up the matter to this
Court in appeal is either by way of certificate obtained from the Tribunal
that decided the matter or by obtaining leave of this Court under Section
31 for filing an appeal depending upon whether this Court considers the
point involved in the case to be one that ought to be considered by this
Court.

7. An incidental question that arises is whether an application for
permission to file an appeal under Section 31 can be moved directly before
the Supreme Court without first approaching the Tribunal for a certificate
in terms of the first part of Section 31(1) of the Act. In the ordinary
course the aggrieved party could perhaps adopt one of the two routes to
bring up the matter to this Court but that does not appear to be the
legislative intent evident from Section 31(2) (supra). A careful reading of
the section shows that it not only stipulates the period for making an
application to the Tribunal for grant of leave to appeal to this Court but
also stipulates the period for making an application to this Court for
leave of this Court to file an appeal against the said order sought to be
challenged. It is significant that the period stipulated for filing
application to this Court starts running from the date beginning from the
date the application made to the Tribunal for grant of certificate is
refused by the Tribunal. This implies that the aggrieved party cannot
approach this Court directly for grant of leave to file an appeal under
Section 31(1) read with Section 31(2) of the Act. The scheme of Section 31
being that an application for grant of a certificate must first be moved
before the Tribunal, before the aggrieved party can approach this Court for
the grant of leave to file an appeal. The purpose underlying the provision
appears to be that if the Tribunal itself grants a certificate of fitness
for filing an appeal, it would be unnecessary for the aggrieved party to
approach this Court for a leave to file such an appeal. An appeal by
certificate would then be maintainable as a matter of right in view of
Section 30 which uses the expression “an appeal shall lie to the Supreme
Court”. That appears to us to be the true legal position on a plain
reading of the provisions of Sections 30 and 31.

8. Mr. Vivek Tankha, Additional Solicitor General, however, contended
that Section 30 granted an independent right to file an appeal against the
final decision or order of the Tribunal and that Section 31 was only
providing an additional mode for approaching this Court with the leave of
the Tribunal. We regret to say that we have not been able to appreciate
that argument. If Section 30 of the Act confers a vested right of appeal
upon any person aggrieved of a final decision or order of the Tribunal and
if such appeal can be filed before this Court without much ado, there is no
reason why the Act would provide for an appeal being filed on the basis of
a certificate issued by the Tribunal nor would it make any sense for a
party to seek leave of this Court to prefer an appeal where such an appeal
was otherwise maintainable as a matter of right. The interpretation
suggested by Mr. Tankha shall, therefore, have the effect of not only re-
writing Section 30 which specifically uses the words “subject to the
provisions of Section 31” but would make Section 31 wholly redundant and
meaningless. The expression “subject to the provisions of Section 31”
cannot be rendered a surplusage for one of the salutary rules of
interpretation is that the legislature does not waste words. Each word used
in the enactment must be allowed to play its role howsoever significant or
insignificant the same may be in achieving the legislative intent and
promoting legislative object. Although it is unnecessary to refer to any
decisions on the subject, we may briefly re-count some of the
pronouncements of this Court in which the expression “subject to” has been
interpreted.

9. In K.R.C.S. Balakrishna Chetty & Sons & Co. v. State of Madras (1961)
2 SCR 736 this Court was interpreting Section 5 of the Madras General Sales
Tax Act, 1939 in which the words “subject to” were used by the legislature.
This Court held that the use of words “subject to” had reference to
effectuating the intention of law and the correct meaning of the expression
was “conditional upon”. To the same effect is the decision of this Court
in South India Corporation (P) Ltd. v. The Secretary, Board of Revenue
(1964) 4 SCR 280 where this Court held that the expression “subject to”
conveyed the idea of a provision yielding place to another provision or
other provisions to which it is made subject. In State of Bihar v. Bal
Mukund Sah (2000) 4 SCC 640 this Court once again reiterated that the words
“subject to the provisions of this Constitution” used in Article 309,
necessarily means that if in the Constitution there is any other provision
specifically dealing with the topics mentioned in the said Article 309,
then Article 309 will be subject to those provisions of the Constitution.
In B.S. Vadera v. Union of India (1968) 3 SCR 575, this Court interpreted
the words “subject to the provisions of any Act”, appearing in proviso to
Article 309 and observed:

“It is also significant to note the proviso to art. 309, clearly
lays down that ‘any rules so made shall have effect, subject to the
provisions of any such Act’. The clear and unambiguous expression,
used in the Constitution, must be given their full and unrestricted
meaning, unless hedged-in, by any limitations. The rules, which
have to be ‘subject to the provisions of the Constitution’, shall
have effect, ‘subject to the provisions of any such Act’. That is,
if the appropriate Legislature has passed an Act, under Art. 309,
the rules, framed under the Proviso, will have effect, subject to
that Act; but, in the absence of any Act, of the appropriate
Legislature, on the matter, in our opinion, the rules, made by the
President, or by such person as he may direct, are to have full
effect, both prospectively and, retrospectively.”

10. In Chandavarkar S.R. Rao v. Ashalata S. Guram (1986) 4 SCC 447, this
Court declared that the words “notwithstanding” is in contradistinction to
the phrase ‘subject to’ the latter conveying the idea of a provision
yielding place to another provision or other provisions to which it is made
subject.

11. There is in the light of the above decisions no gainsaying that
Section 30 of the Act is by reason of the use of the words “subject to the
provisions of Section 31” made subordinate to the provisions of Section 31.
The question whether an appeal would lie and if so in what circumstances
cannot, therefore, be answered without looking into Section 31 and giving
it primacy over the provisions of Section 30. That is precisely the object
which the expression “subject to the provisions of Section 31” appearing in
Section 30(1) intends to achieve. We have, therefore, no hesitation in
rejecting the submission of Mr. Tankha that the expression “subject to the
provisions of Section 31” are either ornamental or inconsequential nor do
we have any hesitation in holding that right of appeal under Section 30 can
be exercised only in the manner and to the extent it is provided for in
Section 31 to which the said right is made subject.

12. Mr. P.P. Rao, learned senior counsel appearing for the respondent in
Criminal Appeal D. No. 38094 of 2011 also drew our attention to several
other statutes in which an appeal is provided to the Supreme Court but
where such provision is differently worded. For instance, Section 116-A of
the Representation of the People Act, 1951 provides for an appeal to this
Court and reads as under:

“116-A. Appeals to Supreme Court – (1) Notwithstanding anything
contained in any other law for the time being in force, an appeal
shall lie to the Supreme Court on any question (whether of law or
fact) from every order made by a High Court under Section 98 or
Section 99.”

13. So also the Consumer Protection Act, 1986 provides for an appeal to
this Court under Section 23 thereof which reads as under:

“23. Appeal – Any person, aggrieved by an order made by the
National Consumer in exercise of its powers by sub-clause (i) of
clause (a) of Section 21, may prefer an appeal against such order
to the Supreme Court within a period of thirty days from the date
of the order.”
14. Even the Terrorists Affected Areas (Special Courts) Act, 1984
providing for an appeal to the Supreme Court under Section 14, starts with
a non obstante clause and creates an indefeasible right of appeal against
any judgment, sentence or order passed by such Court both on facts and law.
Similar was the case with Terrorist and Disruptive Activities (Prevention)
Act, 1987 which provided an appeal to the Supreme Court against any
judgment, sentence or order not being an interlocutory order of a
Designated Court both on facts and law. Section 55 of the Monopolies and
Restrictive Trade Practices Act, 1969 also provided an appeal to this Court
on one of the grounds specified in Section 100 of the Code of Civil
Procedure, 1908. The Advocates Act, 1961, The Customs Act, 1962 and the
Central Excise Act, 1944 provide that an appeal shall lie to this Court
using words different from those that have been used in Sections 30 and 31
of the Armed Forces Tribunal Act.

15. It follows that the question whether an appeal lies to the Supreme
Court and, if so, in what circumstances and against which orders and on
what conditions is a matter that would have to be seen in the light of the
provisions of each such enactment having regard to the context and the
other clauses appearing in the Act. It is one of the settled canons of
interpretation of statutes that every clause of a statute should be
construed with respect to the context and the other clauses of the Act, so
far as possible to make a consistent enactment of the whole statute or
series relating to the subject. Reference to the decisions of this Court in
M. Pentiah v. Muddala Veeramallapa (1961) 2 SCR 295 and Gammon India Ltd.
v. Union of India (1974) 1 SCC 596 should in this regard suffice. In Gammon
India Ltd. (supra) this Court observed:

“Every clause of a statute is to be construed with reference to the
context and other provisions of the Act to make a consistent and
harmonious meaning of the statute relating to the subject-matter.
The interpretation of the words will be by looking at the context,
the collocation of the words and the object of the words relating
to the mattes.”

16. We may also gainfully extract the following passage from V. Tulasamma
v. Sesha Reddy (1977) 3 SCC 99 where this Court observed:

“It is an elementary rule of construction that no provision of a
statute should be construed in isolation but it should be
construed with reference to the context and in the light of
other provisions of the Statute so as, as far as possible, to
make a consistent enactment of the whole staute…”
17. Mr. Tankha, Additional Solicitor General and Ms. Rachana Joshi Issar,
counsel appearing for the appellants in the connected matters lastly argued
that there may be circumstances in which urgent orders may be required to
be issued in which event an application for grant of certificate before the
Tribunal may prevent the aggrieved party from seeking such orders from this
Court. The answer to that question lies in Section 31(3) according to which
an appeal is presumed to be pending until an application for leave to
appeal is disposed of and if the leave is granted until the appeal is
disposed of. An application for leave to appeal is deemed to have been
disposed of at the expiration of the time within which it may have been
made but is not made within that time. That apart an application for grant
of certificate before the Tribunal can be made even orally and in case the
Tribunal is not inclined to grant the certificate prayed for, the request
can be rejected straightaway in which event the aggrieved party can
approach this Court for grant of leave to file an appeal under the second
part of Section 31(1). Once such an application is filed, the appeal is
treated as pending till such time the same is disposed of.

18. In the result these appeals are dismissed reserving liberty to the
appellants to take recourse to Section 31 of the Act. To effectuate that
remedy we direct that the period of limitation for making an application
for leave to appeal to this Court by certificate shall start from the date
of this order. We make it clear that we have not heard learned counsel for
the parties on merits of the controversy nor have we expressed any opinion
on any one of the contentions that may be available to them in law or on
facts. No costs.

……………………………………J.
(T.S. THAKUR)

……………………………………J.
(GYAN SUDHA MISRA)
New Delhi
March 23, 2012

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