IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1044 of 2011 In Civil Writ Jurisdiction Case No. 10726 of 2008 With Interlocutory Application no. 4757 of 2011 In Letters Patent Appeal No.1044 of 2011. ====================================================== Smt. Rajmati Devi @ Chinta Devi, W/o Late Ved Prakash Rai, C/o Jai Prakash Rai, R/o Village - Semara, P.O. - Bandhu Chapra, P.S. - Barahara, Distt. - Bhojpur .... .... Respondent …… Appellant Versus 1. The Union of India Through Defence Secretary Govt. of India, New Delhi, 2. The Defence Secretary, Govt. of India, New Delhi, 3. The Chief of Army Staff, Army Headquarter, New Delhi, 4. The Goc-In-C, Central Command, Lucknow, 5. The Commandant, Records, Bihar Regiment, Danapur, 6. The Commandant, Prathama Bihar, 01 Bihar, C/o. 99 APO, 7. The Officer-In-Charge, CDA, Allahabad, 8. The Branch Manager, Punjab National Bank, Bihta, Patna …. Respondents …………… Respondents, 9. Chinta Devi, W/o Late Sepoy Ved Prakash Rai (Ex-Army No. 4262865X), S/o Late Sita Ram Rai, R/o Village – Semara, P.O. - Bandhu Chapra, P.S. - Barahara, Distt. - Bhojpur ………… Petitioner ………. Respondent .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Chandra Shekhar Singh, Advocate. For the Union of India : Mr. S.M. Iqbal Hasan Rehmani, CGC and Mr. Raghib Ahsan, Assistant S.G. For the P.N.B. : Mr. Kumar Priya Ranjan, Advocate. For the respondent no.9 : Dr. Harendra Kumar Singh, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA Patna High Court LPA No.1044 of 2011 (4) dt.13-09-2011 2 / 5 2 ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4 13-09-2011 Heard the learned Advocates extensively. With the consent of the learned Advocates, the Appeal is heard and decided today. Re. Interlocutory Application No. 4757 of 2011. The delay of 127 days occurred in filing the Letters Patent Appeal is condoned. Interlocutory Application stands disposed of. Re. Letters Patent Appeal No. 1044 of 2011. Feeling aggrieved by the order dated 25th November 2010 made by the learned single Judge in above CWJC No. 10726 of 2008, the respondent no. 9, Smt. Rajmati Devi @ Chinta Devi has filed this Appeal under Clause 10 of the Letters Patent. The respondent no. 9 herein, Smt. Chinta Devi filed the above CWJC No. 10726 of 2008 for a direction to the respondent Union of India to pay family pension to the said respondent no. 9, the writ petitioner, on the demise of her husband Sri Ved Prakash Rai, a Sepoy in the Indian Army. It appears that on the death of said Ved Prakash Rai, Pension Payment Order was made in favour of the present appellant as the widow of said late Ved Prakash Rai. The writ petitioner lodged objection and claimed that she was the legally wedded wife of late Ved Prakash Rai and that she was entitled to receive family pension. Before the learned single Judge a preliminary objection was raised by the Union of India that the matter was triable by the Armed Forces Tribunal, Kolkata constituted under the Armed Forces Tribunal Act, 2007. On the said preliminary objection, the learned single Judge has ordered Patna High Court LPA No.1044 of 2011 (4) dt.13-09-2011 3 / 5 3 transfer of the matter to the Tribunal at Kolkata. Feeling aggrieved, the respondent no. 9 has preferred the present Appeal. Learned Advocate Mr. Chandra Shekhar Singh has appeared for the appellant. He has submitted that the matter at issue is beyond the jurisdiction of the Tribunal and that the matter ought not to have been transferred to the tribunal at Kolkata. The Appeal is contested by the respondents Union of India and the respondent no. 9 - the writ petitioner. Learned Advocate Dr. Harendra Kumar Singh has appeared for the respondent no. 9. He has raised preliminary objections. He has submitted that this Appeal is not maintainable as the impugned order was made with the consensus of the learned Advocates including the learned Advocate for the appellant. He has next submitted that the appellant has suppressed the fact that the matter has already been transferred to the Tribunal and that the Tribunal is seized of the matter. He has also submitted that the matter relates to family pension payable to the family of late Sepoy Ved Prakash Rai. The appellant has impersonated as the wife of the said Ved Prakash Rai. The matter is, therefore, triable by the Tribunal. We are unable to agree with the respondents. At the outset, the preliminary objections raised by the respondents are rejected. The impugned order does not disclose consensus of the learned Advocates. Even if there were consensus that the Tribunal will resolve the dispute at issue, the jurisdiction cannot be conferred by a judicial order. Merely because the Tribunal is seized of the matter, the appellant cannot be said to have suppressed that fact nor the appellant would stand to gain by suppressing such fact. Patna High Court LPA No.1044 of 2011 (4) dt.13-09-2011 4 / 5 4 On merits, we are in agreement with the appellant. Though the writ petitioner has claimed family pension; the question of family pension is undoubtedly triable by the tribunal; the real matter at issue is – “Who is the legally wedded wife of late Sepoy Ved Prakash Rai.” The Preamble of the Armed Forces Tribunal Act, 2007 specifically states inter alia that the Tribunal is constituted to resolve the dispute and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950; the Navy Act, 1957; and the Air Force Act, 1950. Thus, necessarily, the Tribunal has been established to resolve disputes relating to service conditions of persons governed by the aforesaid three Acts. The question of legal status of the appellant, the respondent no. 9 in the writ petition, as the legally wedded wife of late Sepoy Ved Prakash Rai cannot be termed as a dispute relating to service condition. The Tribunal does not have jurisdiction to resolve such issue. The issue cannot be resolved in the petition filed under Article 226 of the Constitution either. The matter can be resolved only by a Civil Court or the Family Court of competent jurisdiction. For the aforesaid reasons we hold that neither the petition filed under Article 226 of the Constitution was maintainable nor the matter could have been transferred to the Tribunal at Kolkata. In above view of the matter, the Appeal is allowed. The impugned order dated 25th November 2010 made by the learned single Judge in above CWJC No. 10726 of 2008 is set aside. CWJC No. 10726 of 2008 is rejected. It is clarified that the appellant and the writ petitioner – Patna High Court LPA No.1044 of 2011 (4) dt.13-09-2011 5 / 5 5 the respondent no. 9 are at liberty to pursue the remedy for deciding their status of legally wedded wife of late Sepoy Ved Prakash Rai before the appropriate forum. Parties will bear their own cost. Dilip. (R.M. Doshit, CJ) (Birendra Prasad Verma, J)