TAJ MOHAMAD SHEIKH Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application seeking review of the order dated 30.11.95 passed in CWP No.2231/95 whereby the writ petition Filed by the petitioner was directed to be dismissed on the ground of availability of an efficacious alternate remedy by preferring a petition under Section 164 of the Army Act.

(2.) Vide para 19 of the order, we have held that jurisdiction of the High Court to entertain writ petition in an appropriate case without insisting on the Filing and disposal of pre-confirmation/post- confirmation is not taken away such as where there is a patent lack of jurisdiction in constitution of a court martial or any proceeding thereto. It is submilted by learned counsel for the review-applicant that in the case at hand there has been a breach of Section 130 of the Army Act which strikes at the very root of the Constitution of the court martial and hence the present one is a case where the court should have entertained the writ petition for adjudication on merits without driving the petitioner to the necessity of Filing a petition under Section 164 of the Army Act.

(3.) It is true that in the case of Ranjit Thakar VS. Union of India & Ors., AIR 1987 SC 2386 vide para 5 their Lordships of the Supreme Court have held that non-compliance with Section 130 of the Army Act is an infirmity going to the root of jurisdiction and vitiates the proceedings. But the facts of the present case are entirely different and do not attract the applicability of Ranjit Thakur's case. For the several reasons to be stated hereinafter, we Find ourselves unable to agree with the contention of learned counsel for the petitioner.