Punjab and Haryana High Court Thursday restrained the Haryana government from publishing the report of the Justice S N Dhingra Commission, and stayed action on its findings on the grounds of procedural lapses committed by the panel. While this provided temporary relief to former Chief Minister Bhupinder Singh Hooda, the decisions of whose government the Commission probed, the Division Bench of Justices Ajay Kumar Mittal and Anupinder Singh Grewal upheld the setting up of the inquiry itself — ruling that Hooda’s allegation of mala fide against his successor Manohar Lal Khattar and Khattar’s government hadn’t been proven.
An investigation of the allegedly shady land deals in Gurgaon on Hooda’s watch — including that between Robert Vadra’s Sky Light Hospitality and DLF Universal Ltd — was one of the BJP’s major election campaign promises in 2014. Khattar’s government set up the Justice Dhingra Commission of Inquiry on May 14, 2015. The one-man Commission submitted its 182-page report to the state government on August 31, 2016.
The initial May 2015 notification on the terms of reference of the Dhingra Commission asked it to inquire into:
- circumstances in which licences for development of commercial colonies were granted to entities in Gurgaon’s Sector 83,
- whether these entities were eligible for the licences,
- whether transfer of licences by the original licencee to other entities within a short time violated laws, rules, notifications, etc.,
- whether the Department of Town & Country Planning had contemplated the transactions that had taken place before or after the grant of licence, especially with reference to the government’s losses.
The Commission was also asked for recommendations on corrective action to prevent the loss of revenue; to consider related matters including complaints by individuals, magazines, parties and the CAG; to give findings and recommendations regarding allegations of criminal conspiracy, criminal misconduct and undue private enrichment, and the role of public servants and private individuals; and to recommend remedial steps for systemic improvement in the future.
The Commission’s terms of reference were amended in August 18, 2015. It was asked to look at, among other matters, the grant of licences to some entities by the Department of Town & Country Planning for developing colonies in villages Sihi, Shikohpur, Kherki Daula and Sikandarpur Bada in Gurgaon district Gurgaon, and their subsequent transfer/disposal, allegations of private enrichment, ineligibility of the beneficiaries under the rules, etc.
A ‘secret’ report
Nearly two and a half years after its submission, the report remains secret. In November 2016, Hooda moved Punjab and Haryana High Court, challenging the decision to set up the Commission of Inquiry. On the first day of the hearing on November 23, 2016, the government gave an undertaking that the report “shall not be published”.
Hooda was represented by Senior Advocates Kapil Sibal, H S Hooda and Narender Hooda. The main challenge focussed on the procedure followed in summoning Hooda under the provisions of The Commissions of Inquiry Act — his counsel said Section 8B of the Act (which allows “persons likely to be prejudicially affected to be heard”) was not followed, and no material was provided as to why he was being called.
Hooda did not appear before the Commission, his counsel Pardeep Singh Punia said, as he was not informed under what provision he was being called.
Sibal argued that the Haryana government did not have even “prima facie evidence” to constitute the Commission of Inquiry, and alleged “mala fide” intentions. He said the inquiry had been initiated only because of the grant of licences to Sky Light Hospitality, and on the basis of allegations that were already in the public domain. “Mere allegations cannot form a basis for the Court of Inquiry. The terms of reference (of the Inquiry Commission) suggest there is no prima facie (evidence)…”
Counsel for Hooda also argued there was no requisite reference before the Cabinet for issuance of notification setting up the Commission. The change in the terms of reference was also made a ground for challenge.
Solicitor General of India Tushar Mehta, who was then Additional Solicitor General, argued that documents including the CAG report, a report highlighting the irregularities sent by a recognised political party, news reports, and Assembly proceedings — which form the basis for the constitution of the Commission — were of “public importance”, and the material cannot be subject to a judicial review.