IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8222 of 2004 Dinesh Sharma, son of Sri Nawal Kishore Singh, resident of village Choubra,P.S.Konch,District Gaya Petitioner. Versus 1. The Union of India, through the Secretary, Department of Defence, New Delhi. 2. The Chief of the Army Staff, Army Headquarter, New Delhi. 3. General Commanding Officer-in-Chief, Eastern Command, Calcutta. 4. General Officer Commanding, 4 Corps, C/o. 99 APO, HQ Eastern Command(Div.3), Kolkata. 5. Colonel Commanding Officer, 32,EME Battalian (Tpt), Misamari, Assam. 6. The General Officer Commanding-in-charge, 4 Corps, C/o.99 APO, Eastern Command, Calcutta. Respondents. ----------- For the Petitioner : Mr.Dinu Kumar, Advocate For the Union of India : Mr.Rakesh Kumar Singh, Central Govt. Counsel. --------- 06 01.07.2011 At the stage of admission a preliminary objection has been raised by the learned counsel appearing for the respondent Union of India against maintainability of this writ petition in view of the Armed Forces Tribunal having been constituted which according to him provides an alternative remedy and ought to be adverted to by the petitioner. In this regard he relies on Section 14 and Section 34 of the Armed Forces Tribunal Act, 2007. He also relies on a Division Bench decision of this Court dated 9.5.2011 in LPA No.223 of 2011 wherein it was held that litigants must first approach the Tribunal and the writ petition should not be entertained on merits at the first instance. Learned Counsel for the petitioner on the other hand has submitted that the aforesaid decision in LPA No.223 of 2011 arose from CWJC No.14199 of 2010. The writ petition 2 was filed at a time when the Armed Forces Tribunal had already been constituted and was functioning. He placed strong reliance on a Single Bench decision of this Court reported in 2011 (2) PLJR 938 wherein the provisions of the Armed Forces Tribunal Act, 2007 and in particular Section 34 thereof have been considered. In conclusion it has been held in the decision that a petition under Article 226 or 227 of the Constitution pending before the High Court on the appointed day would not stand transferred to the Tribunal under Section 34 of the Act by operation of law. It has been categorically held that “Suits or other Proceedings” referred to in Section 34 of the Act would necessarily mean the proceedings pending before the Court as an appeal arising from the suit, but not as a petition filed under Article 226 and 227 of the Constitution. In this view of the matter he urges that the writ petition is maintainable and ought to be proceeded with. On a perusal of the two decisions relied upon by the respective parties this Court finds that there is no anomaly in the matter. The Single Bench decision interprets the scope of Section 34 in determining whether or not a writ petition pending on the appointed day would automatically stand transferred to the Tribunal, concluding that a petition under Article 226 or 227 does not fall within the ambit of Section 34 of the said Act. On the other hand, the subsequent Division Bench 3 decision has not gone into this aspect of the matter at all rather it has simply chosen not to exercise its discretion to interfere in writ proceedings in the face of available alternative remedy by way of approaching the Armed Forces Tribunal. Learned counsel for the petitioner has also advanced a submission that the instant writ petition has been filed as far back as in 2004 and well before the Armed Forces Tribunal had even been conceived of and as such relegating the petitioner to the Tribunal at this stage would amount to giving retrospective effect to the Armed Forces Tribunal Act, 2007. This submission does not appear to have much force inasmuch as no retrospective operation is involved if the alternative remedy has become available on the date when the writ petition is taken up for admission. Besides the spirit of Section 34 of the said Act is suggestive that the whole idea is to bring all pending matters also within the jurisdiction of the Tribunal whether by way of appeals, review etc. In this view of the matter, this Court has no hesitation in holding that the petitioner ought to avail of his remedy before the Tribunal where it will be open to him to claim the relief sought in the instant petition. In view of long delay already suffered by the petitioner during the pendency of this writ petition it is expected that the Tribunal will dispose of the petitioner’s application, if filed within one month hereof, expeditiously and after considering 4 any delay in filing such application sympathetically, in view of the fact that the petitioner had been pursuing his remedy in writ jurisdiction before this Court. The writ petition is accordingly dismissed with liberty to the petitioner to approach the Armed Forces Tribunal as aforesaid. psc (Vikash Jain, J.)