TILAK RAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) This Court vide order dated 18.07.2017 and for the reasons assigned therein had transferred a bunch of writ petitions to the Armed Forces Tribunal and thereafter this batch of writ petitions has come up today for orders on MP No.1/2017 i.e. an application seeking transfer of the writ petition to the Armed Forces Tribunal constituted under the Armed Forces Tribunal Act, 2007. Since learned counsel for the petitioner(s) submitted that they would like to address this Court on certain additional issues of which this Court did not take note of while passing order dated 18.07.2017, therefore, they were heard and the issue with regard to transfer of this batch of writ petitions to the Armed Forces Tribunal is being decided by this order.

(2.) Learned ASGI has submitted that in view of section 34 of the Armed Forces Tribunal Act, 2007 (for brevity, the Act of 2007), the writ petitions pending before this Court deserve to be transferred to the Armed Forces Tribunal Srinagar Bench at Jammu. Our attention has been invited to Section 1(2)(b) of the Administrative Tribunal Act, 1985 (for brevity, "the Act of 1985") and it has been submitted that the provisions of the Act of 1985 do not apply insofar as it pertain to the Administrative Tribunals to the State of Jammu and Kashmir, however, Section 2 of the Act of 2007 provides for applicability of the Act to persons, who are subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950. In other words, it is submitted that, there is no provision in the Act of 2007, which restricts its application to the State of Jammu and Kashmir. Learned ASGI has also invited attention of this Court to the decision of the Supreme Court in the case of Kendriya Vidyalaya Sangathan and another v. Subhas Sharma; 2002(3) S.C.T. 320 : (2002) 4 SCC 145 and in particular has invited attention of this Court to paragraph Nos. 5 to 10 as well as 16 to 19 of the aforesaid decision.

(3.) It is submitted that the question whether the 42nd Amendment to the Constitution applies to the State of Jammu and Kashmir is not relevant as the Armed Forces Tribunal Act applies to the persons, who are subject to the provisions of Army Act, Navy Act and the Air Force Act. It is also submitted that the writ petition is covered under the expression "other proceeding", used in Section 34(1) of the Act, 2007, which has to be read in entirety and it is evident that "other proceeding? refers to the later part of the Section, namely, "being a suit or proceeding the cause of action whereupon 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." It is also submitted that the expression proceeding used in section 141 of the Code of Civil Procedure has no relevance so far as interpretation of expression "other proceeding" used in Section 34 of the Act of 2007 is concerned as the expression "proceeding? used in section 141 of the Code of Civil Procedure has to be read in context of proceedings under Order-IX of the CPC.