Article 139A of the Constitution of India- transfer of cases by the Supreme Court of India.

[CA DEV KUMAR KOTHARI]

Article 139A of the Constitution of India- transfer of cases by the Supreme Court of India.

From the Constitution of India (COI):

The article 139A provides for consideration of matter by the Supreme Court and transfer of cases from one High Court to other High Court.

The article reads as follows (with highlights added by author):

Article.139A. Transfer of certain cases.-

(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.]

About matters:

The article of the COI is applicable when

           Cases involving:

(a)    the same or substantially the same questions of law

(b)   such cases are pending (i) before the Supreme Court and one or more High Courts or (ii) before two or more High Courts.

(c)    the Supreme Court is satisfied : (i) on its own motion (ii) on an application made by the Attorney-General of India or (iii) on an application by a party to any such case

that such questions are substantial questions of general importance. Then

Withdrawal of case:

On the satisfaction as noted above the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself.

       Thus it is a case where case before the High Court or High Courts which is deemed as withdrawn by the Supreme Court and the case is taken up by the Supreme Court for disposal.

Alternate course of action:

As per proviso to the article the alternate course of actions can be as follows:

(a)    the Supreme Court first determining the said questions of law then

(b)   The Supreme Court may return any case so withdrawn (by the Supreme Court) together with a copy of its judgment on such questions of law to the High Court from which the case has been withdrawn,

(c)    and then the High Court shall on receipt of the returned case, proceed to dispose of the case in conformity with such judgment of the Supreme Court.

Transfer of cases to other High court (sub article (2):

As per the sub article (2) there is provision is for transfer of case from one High Court to any other High Court. This can be in cases where the Supreme Court deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

Recent case before the Supreme Court:

In relation to disputes about constitutional validity (may also be in relation to appeals) of section 40 (a) (ia) of the Income-tax Act, 1961, Writ Petitions or other proceedings are pending before Supreme Court and many High Courts. Therefore the Central Government / UOI made an application to the Supreme Court for transfer of case pending before Andhra Pradesh High Court to the Supreme Court in case of Union of India & Others Versus Maruthi Tubes (P) Ltd. [2013 (9) TMI 631 - SUPREME COURT] The transfer petition is filed under Article 139(A)(1) of the Constitution of India read with order XXXVI-A of the Supreme Court Rules, 1966.

The Supreme Court ordered for transfer of the case from AP High Court to the Supreme Court.

Authors view:

The Supreme Court ordered transfer presumably because:

1. the substantial question of law is in relation to a central enactment,
2. disputes are going on in several High Courts,
3. some cases may also be pending before the Supreme Court,because some High Courts have already decided issues on the provisions of section 40 (a ) (ia) of the Income-tax Act, 1961.
4. the question of law involves public interest and transfer of cases is in the interest of justice.

Union of India & Others Versus Maruthi Tubes (P) Ltd. [2013 (9) TMI 631 - SUPREME COURT]