UNION OF INDIA Vs BRIGADIER P.S.GILL
Bench: T.S. THAKUR,DIPAK MISRA
Case number: Crl.A. No.-000564-000564 / 2012
Diary number: 38094 / 2011
Advocates: Vs
KAILASH CHAND
REPORTABLE
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
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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 2
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;
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(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
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(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
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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 6
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
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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
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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
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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
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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 11
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:
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“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
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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
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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
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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
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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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