UNION OF INDIA Vs. RAM BARAN

JUDGEMENT

(1.) WE have heard Shri Satish Kumar Rai, learned counsel appearing for Union of India-appellant-respondent.

(2.) THIS Special Appeal was reported to be beyond time of 122 days. In the affidavit of Cap. Trilok Dixit, Quarter Master, 23 Medium Regiment, the delay has been explained in paragraphs 4 to 13. It is stated that the copy of the judgment dated 1st February, 2005 was applied on 2.2.2005. The judgment was received on 10.2.2005, and was forwarded alongwith opinion of counsel on 18.2.2005. The records were sent for legal opinion of DAJAG. On 19.5.2005 the Legal Adviser, Ministry of Defence opined that this is a fit case for filing special appeal. On 27.5.2005 the file was sent to Arty Records for filing the special appeal and on 4.6.2005 the legal cell was asked to proceed further with filing of the appeal.

(3.) IT is submitted by Shri Satish Kumar Rai that the Special Appeal is not liable to be transferred to the Armed Forces Tribunal under Section 34 of the Armed Forces Tribunal Act, 2007, (in short the Act of 2007). He submits that under Section 34 of the Act every suit, or other proceeding pending before any Court including a High Court, or other authority immediately before the date of establishment of the Tribunal under the Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, is to be transferred on that date to such Tribunal. The Special Appeal arising out of judgment of learned Single Judge is not a proceeding, which may be transferred under Section 34 of the Act to the Tribunal. Shri S.K. Rai submits that the cause of action in this case had arisen prior to the establishment of the Tribunal, and that in any case the Tribunal does not have powers to set aside the judgment of learned Single Judge under Article 226 of the Constitution of India. He submits that the writ petition under Article 226 of the Constitution cannot be treated as a suit or other proceedings and that a special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, preferred against a judgment of Single Judge of the High Court, as an intra Court appeal, is not liable to be transferred to the Tribunal.