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

1

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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