D. S. R. VARMA, J. ( 1 ) THIS Writ Petition is filed seeking a declaration that the provisions of Sec. 71 (a), (b) and (c) of The Army Act, 1950 are unconstitutional and ultra vires. ( 2 ) THE facts in brief are that the petitioner while working as a Nayak, certain charges were levelled against him in connection with misappropriation of 12,000 litres of petrol on 13-3-1995. The same were investigated and a general Court Martial was conducted against the petitioner and he was convicted with four years of rigorous imprisonment. Before the conviction, the petitioner was given full opportunity. The sentence imposed on the petitioner was confirmed by the General Officer Commanding Area of apnkk and G area on 5-8-1999. ( 3 ) THE counsel for the petitioner contends that owing to personal animosity, the superior officers levelled the charges against the petitioner without any basis; that only because of a clerical error, the deficiency of 12,000 litres of petrol was recorded; that it has been detected by the local audit officer during the quarterly audit; and that the then commander, Head Quarters hatched a conspiracy and conducted the enquiry summarily and by fabricating evidence in the Court Martial, convicted the petitioner. He therefore contends that the whole trial in court Martial suffers from lack of jurisdiction or excess of jurisdiction by wrong application of law as well. ( 4 ) THE further contention is that as per chapter VI of Civil Offences, in Manual of indian Military Law, the petitioner should have been tried only by a competent civil/ criminal Court, inasmuch as the offence is of civil in nature and the property belongs to india Oil Corporation, which can be termed only as civil property and further the offence is committed in conjunction with the civilians i. e. , driver of lorry and the owner of the Nav Bharat Petrol Pump. He further contends that the offence said to have been committed by the petitioner does not fall in any of the exceptions as enumerated in paragraph 3 of the civil offences chapter of manual of Indian Military Law (MIML), since firstly the offence was not committed in military lines; secondly the offenders were never part of a body, about to proceed on active service and; thirdly the respondents never felt it necessary for prompt infliction of punishment expedient. ( 5 ) IT appears that his further contention is that the alleged offence was not such a grave offence, which warrants imposition of punishment like the one awarded to the petitioner and hence the jurisdiction vested with the authorities under Section 71 (a) (b) and (c) authorizing the competent authority to impose punishment of death; imprisonment for life; imprisonment either rigorous or simple for any period not exceeding fourteen years, is unconstitutional. ( 6 ) FINALLY he contends that the power exercisable by the competent authority under Section 71 of the Army Act, 1950 is not only ultra vires, but also takes away the right guaranteed under Article 21 of the constitution. He further submitted that as per paragraph No. 448 of the Army regulations, which has been extracted in the writ affidavit, for the offences with which the petitioner was charged, a maximum punishment of one year imprisonment can be imposed. In other words, according to him convicting the petitioner with four years rigorous imprisonment is disproportionate to the offence committed by the petitioner. ( 7 ) THE prime relief sought by the petitioner is to declare the provisions of section 71 (a), (b) and (c) of the Army Act as unconstitutional and ultra vires. Therefore, it is necessary to refer to the judgment of the supreme Court in Ram Sarup v. Union of india. In the said judgment, Their Lordship held at paragraph No. 16 as under: we agree that each and very provision of the Act is a law made by parliament and that if any such provision tends to affect the fundamental right under Part III of the constitution, that provision does not, on that account, become viod, as it must be taken that Parliament has thereby, in the exercise of its power under Art. 33 of the Constitution, made the requisite modification to affect the respective fundamental right. We are however of opinion that the provisions of S. 125 of the Act are not discriminatory and do not infringe the provisions of Art. 14 of the constitution. . . . . . . . . . ( 8 ) IN another judgment in Prithi Pal Singh v. Union of India, the Hon ble Supreme court at paragraph No. 38 held as under:. . . . . . . . . . . . ( 8 ) IN another judgment in Prithi Pal Singh v. Union of India, the Hon ble Supreme court at paragraph No. 38 held as under:. . . The Parliament has the power to restrict or abrogate any of the rights conferred by Part III of the Constitution in their application to the members of the Armed Forces so as to ensure the proper discharge of duties and maintenance of discipline amongst them. The Act is one such law and, therefore, any of the provisions of the act cannot be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by Part III of the constitution and this would indisputably include Art. 21. ( 9 ) THE Hon ble Supreme also held at paragraph No. 15 in the same judgment as under:. . . . . Therefore, every provision of the army Act enacted by the Parliament, if in conflict with the fundamental rights conferred by Part III, shall have to be read subject to Art. 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between Part III of the constitution and the Army Act. ( 10 ) WHILE laying the above principle, the hon ble Supreme Court placed reliance on its earlier Full Bench judgment in Ram sarup s case (supra ). ( 11 ) THEREFORE, in view of the above principles laid down by the Apex Court in the decisions cited 1 and 2 supra, we do not find any hesitation to reject the main relief sought by the petitioner i. e. , declaration of provisions in Section 71 (a), (b) and (c) as unconstitutional and ultra vires. On this score alone, the writ petition has to be dismissed. However, we would like to deal with other important questions raised by the learned counsel for the petitioner. ( 12 ) THE alternative submission made by the counsel for the petitioner is that the offence being civil in nature, the proper court to try the offences is civil/criminal court instead of referring to General Court martial, invoking the provisions of the army Act. ( 12 ) THE alternative submission made by the counsel for the petitioner is that the offence being civil in nature, the proper court to try the offences is civil/criminal court instead of referring to General Court martial, invoking the provisions of the army Act. In this context, he contends that the property is a civil property, inasmuch as it belongs to the Indian Oil Corporation and the main persons involved are driver and the owner of the lorry. To meet this contention it is necessary to fall back upon the decision in Ram Sarup s case (cited 1 supra) once again. In the said judgment, the apex Court held at paragraph No. 22 as under: in short, it is clear that there could be a variety of circumstances which may influence the decisions as to whether the offender be tried by a Court- martial or by an ordinary Criminal court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed. ( 13 ) IN the above decision, the Apex Court also referred to Section 549 of Code of criminal Procedure (old Code), which is corresponding to Section 475 of the new code, which provides that when a person accused of such an offence which can be tried by an ordinary criminal Court or by a military court, is brought before a magistrate, he shall have regard to such rules, and shall, in proper cases, deliver him, together with a statement of the offence of which he is accused. Their Lordships further observed that Section 549 gives discretion to the Magistrate having regard to the rules framed, to deliver the accused to the military authorities for trial by Court Martial. ( 14 ) THE learned counsel for the petitioner refers to Chapter VI of Civil Offences, referred to in Manual of Indian Military law. The same has been extracted in the writ affidavit. ( 14 ) THE learned counsel for the petitioner refers to Chapter VI of Civil Offences, referred to in Manual of Indian Military law. The same has been extracted in the writ affidavit. However, the relevant portion is extracted as under: but inside Indian territory where a competent civil Court has been established, it is as a general rule, desirable to try by a civil (criminal) court; a civil offence committed by a person subject to AA if the offence is one which relates to the property or person of a civilian or is committed in conjunction with a civilian, or if the civil authorities intimate a desire to bring the case before a civil Court. ( 15 ) FROM the above extracted portion, particularly in the light of expression "desirability" indicates firstly that they are only suggestive in nature, but not mandatory. Secondly the said general rule is however subject to certain qualifications. ( 16 ) IN the instant case, the facts on record are that 12,000 litres of petrol has been despatched by the Indian Oil Corporation for supply depot of Army at Secunderabad. No proper entries were made in the concerned registers and the said defect was detected during the audit. The person responsible to make such entries in the register was the petitioner, since he was performing the duties of NCO in charge indian Oil Corporation and he was responsible to receive daily fuel oil lubricant and ensure receipt of the bulk petrol at the delivery depot. ( 17 ) HENCE the general principle enumerated in Chapter VI of the Manual of indian Military Law, to the effect that the offences said to have been committed by the petitioner should have been tried by a competent civil/criminal Court, but not by a court Martial, cannot be accepted. ( 18 ) FURTHER as held by the Apex Court, the offences found by the army authorities as sufficiently serious and the property and the person involved as belonging to the military service, the discretion always lies with the military authorities as to whether such a person could be tried by a civil/ criminal Court or by a General Court martial. In other words, expedience of the offence being tried either by civil or criminal court or by General Court Martial depends much upon the seriousness of the offence and the person and property involved. In other words, expedience of the offence being tried either by civil or criminal court or by General Court Martial depends much upon the seriousness of the offence and the person and property involved. Undoubtedly in the instant case, the property and the person, belong to Army. ( 19 ) THE other contention of the learned counsel for the petitioner that the punishment imposed is excessive in view of regulation No. 448 of Defence Service regulations for the Army is concerned, we are of the view that it is only for the competent authority to impose proper punishments as felt fit, having regard to the gravity of the offence. Further it has to be noted that when once the competent authority comes to a definite conclusion as regards the quantum of punishment after finding the petitioner guilty, this Court cannot to into the aspect of rationality or proportionality of the quantum of punishment. ( 20 ) SO far as the other aspects which are agitated by the learned counsel for the petitioner are concerned, they are all questions of fact and this Court sitting under article 226 of the Constitution of India cannot go into or delve those facts, since as already stated, a regular Court Martial had been conducted and after following the procedure, the authorities convicted the petitioner. ( 21 ) FOR the foregoing reasons, we do not find any merit in the writ petition and the same is accordingly dismissed. No costs.