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The petition filed under Article 226 & 227 disputed an interlocutory order passed in an original petition by the Armed Forces Tribunal. This matter came up to the bench of Justices V. Chitambaresh and Ashok Menon of the Kerala High Court. T. A preliminary objection is raised on behalf of the Union of India and others that an Original Petition of the nature is not maintainable against an interlocutory order. It is urged that the remedy of the petitioner is to file an appeal against the final decision of the AFT under Section 30 of the Armed Forces Tribunal Act, 2007. The second proviso to Section 30 (1) of the Act is categorical that there shall be no appeal against an interlocutory order and that the same shall lie only against the final decision or order of the AFT. However the power of judicial review vested in this Court under Article 226 of the Constitution of India is not curtailed or circumscribed by the provisions of the Act. They have taken reliance on the case of Union of India and others v. Major General Shri Kant Sharma and another [(2015) 6 SCC 773] said that, “the power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India”. An Original Petition under Article 226 of the Constitution of India can be entertained against an interlocutory order of the AFT for the limited purpose of examining the following:
(i) Whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice?
(ii) Whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had not been vested with jurisdiction under the Act?
It is clear that the matter does not fall within these two purposes. Article 227(4) of the Constitution and section 2 of the Armed Forces Tribunal Act, 2007 follows that the High Court cannot exercise the power of superintendence over the AFT which is constituted under the law relating to the Armed Forces and also the second proviso to Section 30 (1) of the Act barring an appeal against an interlocutory order of the AFT is in consonance with Article 227 (4) of the Constitution of India. The legislative intent is that the interlocutory orders of the AFT should not be corrected or interdicted by the power of superintendence of the High Court intermittently. Thus, held that frequent interference over interlocutory orders of the AFT would undermine the discipline of the Armed Forces at any cost. An alternative remedy under Article 226 and 227 cannot be entertained unless a final decision is passed.
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