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Saturday, December 24, 2016

Incredible: Nobody in Mehbooba’s Govt knew SARFAESI was being heard in Supreme Court?

Govt’s stand was never discussed in Cabinet or vetted by Law Department; no record of counter-affidavit; even the standing counsel was absent when an unprepared AG appeared before the Bench

Ahmed Ali Fayyaz


JAMMU, Dec 23: When the Jammu and Kashmir Advocate General Jehangir Iqbal Ganai met the eminent Supreme Court lawyer Gopal Subramaniam at latter’s office in New Delhi at 6.30 pm on December 5, he definitely did not discuss with him legality of the application of the Central law SARFAESI Act 2002. First: The J&K Government’s Law Department had never assigned that particular case to the AG. Second: AG had little idea of its being in the final stage of arguments with the Bench of Justice Kurian Joseph and Justice R.F. Nariman.

“I believe the pleadings are still incomplete. Who told you it’s listed for arguments tomorrow?”, Ganai asked his assistants Mehfooz Nazki and Mr Raina. He quickly did a surfing on the Supreme Court’s cause list and was taken aback to learn that the State’s most discussed case was listed for arguments on December 6, 7 and 8. It was marked as "part heard". He immediately flashed it to Law Secretary Abdul Majid Bhat in Jammu, attempting to know about the Government’s brief on it. For the whole day on December 6, and until he returned and landed in Jammu on December 7, Ganai did not receive any reply from Law Secretary.

So, what did the J&K AG discuss with Subramaniam? Asked him why Niira Radia described him “a very upright person” in her telephonic conversation with Ratan Tata that was taped by Income Tax department? Wanted to know why he quit in protest as Solicitor General of India when Manmohan Singh’s government decided to field then private lawyer R.F. Nariman in a high profile telecommunication case? Wanted to learn how he functioned as Chairman Bar Council of India? Desired to know how Subramaniam pleaded as CBI’s prosecutor in the Bombay blasts of 1993? Or how he got Ajmal Kasab to gallows for the 2008 terror strike in Mumbai? Or how he argued in the matter of 2001 terror attack on the Indian Parliament?

None of the above, indeed!

During an extensive investigation, STATE TIMES learned that Ganai had arrived in New Delhi on December 5 for engaging Subramaniam, days after he alerted Law Department over a news in The Times of India which reported that Supreme Court of India would discuss Article 370 [that accords special status to J&K State] in a Special Leave Petition (SLP) titled Mohammad Hanief Lone and others versus Ashok Kumar Sharma and others on December 9. The legal battle over promotion of open and reserved categories between incharge Chief Engineers and incharge Superintending Engineers of the J&K Irrigation and Flood Control Department had taken a dramatic turn as some petitioners challenged Article 370 after losing their case in J&K High Court. After the meeting, Subramaniam sent his consent by WhatsApp to the J&K Accountant General.

Ganai had also to appear before National Green Tribunal (NGT) on December 6 in two important petitions  one filed by environmental activist Dr Irfan against a garbage disposal ground at Achhen, on Srinagar outskirts, and another pursued by Maneka Gandhi associate Gauri Malekha for banning passage of mules from Katra to Shri Mata Vaishno Devi Cave atop Trikuta Hills in Jammu.

When on December 6, purportedly of his own, Ganai visited the Kurian-Nariman bench, the arguments from the private petitioners Zafrullah Nehru and Santosh Gupta’s counsel Vijay Hansaria were already in progress. J&K Government’s Advocate on Record Sunil Fernandes was pursuing a different case in a different court. The only file of SARFASEI case was in his possession and the AG was simply groping in the dark as he had failed to receive any brief from the Government in Jammu.

Incredibly, STATE TIMES learned that the Government’s stand, which, at its face, was a major policy matter, was discussed not once in Mufti Mohammad Sayeed’s or Mehbooba Mufti’s Cabinet after it was decided by Justice Muzaffar Hussain Attar and Justice Ali Mohammad Magrey in J&K High Court on July 16, 2015, and subsequently challenged by the banks through SLP in the Supreme Court.

Well-placed sources in Civil Secretariat insist that there is no record of any brief having been vetted by the Law Department. So this was not for nothing that Sunil Fernandes’ interview  in which he told a Srinagar-based newspaper what he had proposed on behalf of the State came as a surprise to legal and political circles. “That’s a key policy matter on which the coalition partners (PDP and BJP) have divergent views. How could a junior advocate in Supreme Court speak on behalf of the Government without a Cabinet or Law Department brief?”, a senior bureaucrat pointed out.

According to the sources privy to the developments, Advocate General had on December 5 night advised Fernandes to seek deferment of the hearing of the arguments till December 13 by which time, he thought, a brief would pour in from Jammu. However, Fernandes did not raise questions on how the arguments would initiate when the pleadings were still incomplete. He did not seek any adjournment either. For most of the time, he remained absent. Ganai’s impromptu and desperate submission that the State would make its own SARFAESI law in the next session of the Legislature went unheard.

With the State going unrepresented, the Bench reserved judgment on December 8 and announced the same on December 16 in favour of the banks represented by Attorney General of India Mukul Rohtagi and senior advocate Rakesh Dwivedi, triggering a political controversy over J&K's "sovereign jurisdiction of legislation" in such matters. If sources in Law Department are to be believed, even an affidavit or counter-affidavit was never approved by the competent authority in the State government or filed in the Supreme Court after being vetted by the Law Minister. Who exactly is responsible for the "lapse"? Was it the State government's insensitivity and non-seriousness or an act of connivance and collaboration with the BJP-ruled Centre? One remains at a loss to understand.


[Published in today's STATE TIMES]

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