How to file Application for transfer under Article 139A (1) of the Constitution? Order XL of Supreme Court Rules 2013
1. Every application under Article 139A (1) of the Constitution shall be in writing. It shall set out concisely in separate paragraphs, the facts and particulars of the cases, pending before the Supreme Court and one or more High Courts or as the case may be, before two or more High Courts, the names and addresses of the parties, the questions of law involved and a statement that the same or substantially the same questions of law are involved in all the cases and that such questions are substantial questions of general importance. In the case of an application made by the Attorney-General no affidavit shall be necessary in support thereof but it shall be accompanied by a certificate of the advocate-an-record to the effect that such questions are substantial questions of general importance in terms of clause (1) of article 139A of the Constitution, and in the case of an application made by a party to a case it shall be accompanied by an affidavit in support thereof and also by a certificate as aforesaid.
2. The application shall be posted before the Court for
preliminary hearing and orders as to issue of notice. If upon
such hearing, the Court is satisfied that a prima facie case for
granting the application is made out, it shall direct that
notice be issued to the parties in the case concerned to show
cause why the cases be not withdrawn. A copy of the order shall
be transmitted to the High Courts concerned which shall report
weeks the stages at which the concerned cases stand in the High Courts.
3. The notice shall be served through the High Court not less than six weeks before the date fixed for the final hearing of the application. Affidavits by the parties shall be filed in the Registry not later than two weeks before the date appointed for hearing and the affidavit in reply by the Attorney-General shall he filed not later than two days preceding the day of the hearing of the application. Copies of affidavits shall be served on the parties and the Attorney-General and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service.
4. After hearing the Attorney General and the parties, if the Court is satisfied that a case for granting the application has been made out it shall require the High Court to transfer the case to this Court for its decision after it is ripe for hearing. The order will be transmitted to the High Court with utmost expedition.
5. (1) On transfer the case shall be registered in the Court as Transferred Case.
(2) The Registrar of the High Court shall have the record of the transferred case prepared and printed in accordance with the First Schedule to the Rules and transmit within six months from the date of the order of the transfer, twenty copies of the said printed record, one copy of which shall be duly authenticated by him.
(3) Where the Court has ordered the transfer of the case at the instance of a party, the record above said shall be prepared at the cost of such party.
(4) Where the Court has directed the transfer of the case upon the application by the Union of India or the State Government, the record above said shall be prepared at the cost of the Government of India or the State concerned, as the case may be.
(5) Where the Court has directed the transfer of a case on its own motion, the record shall be prepared in accordance with the rules of the High Court or subject, to the directions of the Court, if any, regarding the cost thereof:
Provided, however, that where the record has been printed for the purpose of the case before the High Court and sufficient number of copies of the said printed record are available, the same shall be sent to the Court and no fresh printing of the record shall be necessary, except, however, such additional papers as may be required.
(6) The Registrar of the High Court shall give notice to the parties to the transferred case regarding the transmission of the printed record to the Court simultaneously with such transmission of the printed record.
(7) Where in a case, the Court directs that the original record be sent for and the case record, prepared in the Court, the record shall be prepared under the supervision of the Registrar of the Court, and in accordance with the provisions of rules 12 to 15 of Order XIX and the First Schedule to the Rules, the cost of the preparation of the record being borne as per the sub-rules (3), (4) and (S) of rule S of this Order, and as soon as the index of the record is settled, the Registrar of the Court shall cause an estimate of the cost of the preparation of the record to be prepared and served upon the party who is to bear the cost as per the sub-rule above said and require the said party to deposit the said amount of cost within 30 days of the service of the estimate. The said party may deposit the amount of estimate in lump sum or in such installments as the Registrar may prescribe.
6. The parties shall enter appearance in this Court in the Transferred Cases within 30 days of the service on them of such notice of transmission of the record unless they have already entered their appearance at an earlier stage.
7. Within sixty days of the receipt of the said notice regarding the dispatch of the record to this Court, the petitioner /appellant /plaintiff shall file his written brief prepared in the following manner, namely:
(1) At the outset the brief shall contain a short summary of the facts essential for the decision of the questions in issue.
(2) Thereafter, it shall contain propositions of law that are proposed to be advanced at the hearing, citing under each of those propositions, authorities including text books, statutory provisions, regulations, rules or Ordinances or bye-laws or orders that are desired to be relied upon, In the case of decisions, reference shall be given to official reports, if available. In the case of text books reference shall, if possible, be given to the latest edition. Where any statute, Regulation, Rule or Ordinance or bye-law is cited or relied upon so much thereof as may be necessary for the decision of the questions in issue shall be set out. A list of the dates of the relevant events leading upto and concerning the litigation, in chronological order shall also be given at the end of the brief.
(3) Within four weeks of the service of the written brief, the respondent/defendant shall file his written brief setting out briefly the grounds on the basis of which he is opposing each of the propositions of the Petitioner/ Appellant /Plaintiff. Under each of those grounds, he shall cite such authorities as he may seek to rely on in the same manner as is required under sub-rule (2).
(4) Copies of the briefs shall be served by such parties on the Attorney- General for India, and the Advocate-General for the State, where necessary, and he may file his written brief within four weeks of such service.
(5) Within one week of the receipt of the brief filed by the respondent/ defendant/ Attorney General/ Advocate-General, the petitioner/ Appellant/ plaintiff may submit his reply brief which shall be concise and to the point.
(6) Copies of the briefs required to be filed shall be served
on the opposite party or parties and briefs shall not be
accepted in the Registry unless they contain an endorsement of
service signed by such party or parties. Every party to the
proceeding shall supply to any other party, on demand and on
payment of the proper charges, copies of any briefs filed by
him. At least fifteen copies of the written briefs shall be
lodged in the
(7) At the hearing of the reference, except with the special permission of the Court, no party shall be allowed to advance any proposition or urge any ground not taken in the written briefs nor shall he be allowed to rely on any authorities (including provisions of statute, Ordinance, rule, bye-law, regulation or order) other than those mentioned in the briefs unless such authorities or provisions have been published or made after the written briefs were filed in Court.
(8) No party to the Transferred Case shall be entitled to be heard by the Court unless he has previously lodged his written brief.
8. The Transferred Cases shall thereafter be listed for final hearing before the Court.
9. The Court may pass such orders as to costs as it may deem proper.
10. Save as otherwise provided by the rules contained in this Order the provisions of other Orders shall, so far as may be, apply to a Transferred Case under this Order.
(E) ELECTION PETITIONS