Power to transfer cases outside State: SC refers matter of constitutional significance to Constitution Bench

25/04/2015

NEW DELHI/JAMMU, Apr 24: The three Judges Bench of the Supreme Court of India headed by Chief Justice H L Dattu, Justice S A Bobde and Justice Arun Mishra in a significant order has referred a batch of petitions regarding seeking Transfer of cases from the State of J&K or into the State of J&K to a Constitution Bench.
The Supreme Court ordered "these petitions raise an important question as to the power of this Court to transfer a civil case from the State of Jammu and Kashmir outside the State and vide versa. This is, in our opinion, a question of constitutional significance requiring interpretation of the provisions of the Constitution.
Let it be placed for hearing by Constitution Bench."
This significant order perhaps the first where a matter arising out of J&K has been referred to the Constitution Bench. It may be mentioned that several petitions have been filed where in the parties are seeking either transfer of the cases outside the State of J&K or into the State of J&K from other courts. On this issue the matters were first referred to a three Judges Bench and now the three Judges Bench has refrred these cases to a Constitution Bench comprising of not less than five Judges of the highest Court of India.
In one such Transfer Petition titled Bhavika Bharti V/s Nakul Mahajan, the respondent Nakul Mahajan was repersented by Aseem Sawhney Advoccate who submitted before the Supreem Court that the matter is of larger constitutional importance. He opposed this transfer petition on the count of jurisdiction and powers of the Supreme Court Mr Aseem Sawhney took the objections taken are that the Supreme Court does not have the powers to transfer cases outside or into the State of J&K, in view the central CPC not applying to the State of J&K and the J&K CPC not giving any powers to the Apex Court. So much so that the Constitution of India and Constitution of J&K also do not give any such powers to the Supreme Court. He also submitted that by the time the Supreme Court decided the matters, the petitioners who have filed their Divorce petitions where the Stays are operating would become aged and even the Decree of Divorce will not be able to undo the damage and the irreparable loss. Mr Sawheny requested for an earlier listing before the Constitution Bench keeping in view the fact that with every passing day his client was losing his age.
The Advocate General of J&K Mr R A Jan was also present in the batch, representing the State of J&K. In the batch of petitions - ANITA KUSHWAHA VERSUS PUSHAP SUDAN and other cases the counsels who appeared were- for Petitioner(s) Mr. Babu Marlapalle, Sr. Adv., Mr. R. C. Kaushik,Adv. Mr. Kunal Cheema, Adv., Mr. Ajit Wagh, Adv., Mr. Dhruv Kapur, Adv., Mr. Apoorv Shukla, Adv., Mr. Aditya Gaggar, Adv., Mr. Yash Pal Dhingra,Adv., Mr. L.Nageshwara Rao, Sr. Adv., Mr. Sudhir Walia, Adv., Ms. Niharika Ahluwalia, Adv., Mr. Abhishek Atrey,Adv., Mrs. Mona K. Rajvanshi,Adv., Mr. Pradeep Kumar Mittal, Adv., Mr. Anurag Kashyap, Adv., Ms. Sudesh Gupta, Adv., Mr. Arunav Tiwari, Adv., Mr. Ujjal Singh, Adv., Mr. J.P. Singh, Adv., Mr. Shailendra Bhardwaj, Adv., Ms. Aroma S. Bhardwaj, Adv., Mr. Himanshu Shekhar,Adv., Mr. Bharat Bhushan,Adv., Ms. Madhu Moolchandani,Adv., Mr. Rajinder Mathur,Adv., Ms. Jaspreet Gogia,Adv., Mr. Debasis Misra,Adv. For Respondent(s) Mr. Rajesh Srivastava,Adv., Mr. Vipin Gogia, Adv., Mr. Raghvendra Pratap Singh, Adv., Ms. Suresh Kumari, Adv., Mr. Shreekant N. Terdal, Mr. Bimal Roy Jad,Adv., Mr. C. D. Singh,Adv., Mr. Venkita Subramoniam T. R.,Adv.,. Ms. Laxmi Arvind,Adv., Mr. Arvind Kumar, Adv., Ms. Poonam Prasad, Adv., Mr. Pradeep Kumar Mathur, Adv., Mr. R.A. Jaan, Advocate General, J&K., Mr. Ashok Mathur,Adv., Mr. Dharmendra Kumar Sinha,Adv., Mr. Aseem Kumar Sawhney, Adv..

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