The Gujarat government on Tuesday questioned the Supreme Court's decision to order transfer of the Best Bakery case to a Maharashtra court for retrial. The government said the court could not have done it as it was not an issue before it.

During hearing of the National Human Rights Commission's petition for transfer of 12 more cases from Gujarat, Additional Solicitor General Mukul Rohtagi told a bench of Chief Justice V N Khare, and Justices S B Sinha and S H Kapadia in New Delhi that the state had filed its plea for modification of the April 12 order passed by the bench of Justices Doraiswamy Raju and Arijit Pasayat, which transferred the case.

'The issued of transfer of the case was never prayed for and not argued upon by the parties. Moreover, the transfer issue is pending before the bench headed by the Chief Justice of India,' Rohtagi submitted, and wondered how some other bench could pass the order.

Seeking modification of the order, the government urged the apex court to order retrial of the case in the same sessions court in Gujarat or any sessions court in Gujarat under the high court's supervision.

The state also requested the court to expunge remarks censuring it as modern day 'Neros' who looked elsewhere when innocent children and helpless women were being burnt.

The state's plea filed on Monday will come up for hearing before the bench headed by Justice Raju in due course.