The Bombay High Court on Thursday told the Central Bureau of Investigation (CBI) that it “should invoke the Benami Transaction Prevention Act, 1988” in the Adarsh Housing Society investigation. It also transferred the case of missing papers of an Adarsh file from the Mumbai Crime Branch to the CBI.

A Division Bench of Justices B.H. Marlapalle and U.D. Salvi asked the CBI to place the progress of investigation before the court in the next three weeks. “You will have to amend your FIR [First Information Report]. You will have to investigate the benami transactions,” Justice Marlapalle told Additional Solicitor-General Darius Khambatta.

He said the Act enacted during the tenure of the late Prime Minister Rajiv Gandhi would be useful in investigating the case thoroughly. “This is one case where Section 4 of the Act should have been applied.” It pertains to the prohibition of the right to recover property held benami.

“All the transactions vis-à-vis the bank deposits, the mode of payment have to be investigated,” he said, expressing surprise that the Act had not yet been invoked by the investigating agency, and the FIR mentioned only the Prevention of Corruption Act.

Missing papers

A staffer of the Urban Development Department, Mantralay, filed a complaint with the Marine Drive police station in November last after four papers and notings were found missing from an Adarsh-related file. The case was transferred to the Crime Branch in November itself. The Public Interest Litigation (PIL) petition filed by Mahendra Singh and Surendra Mohan Arora requested that the probe be handed over to the CBI.

Hitesh Dabhi, appearing for the petitioners, told the court that the file which allegedly went missing must have been with the Principal Secretary of the Urban Development Department when he attended a meeting with the Maharashtra Coastal Zone Management Authority (MCZMA) on the Adarsh Housing Society matter.

“I have the minutes of the meeting. It is on record. The same file number has been mentioned by the Ministry of Environment and Forests in its press note dated 20 October 2010,” he said.

He said 60 of the 66 persons investigated by the Mumbai Crime Branch were from the clerical level. “This [investigation] is a mere eyewash. I request that the case be transferred to the CBI.”

Another petitioner Ketan Tirodkar said though he did not doubt the integrity of the Crime Branch, “but it functions under the State government.” He alleged that because three former Chief Ministers were involved in the scam, “the State government won't have the liberty to apply its mind [in the case].”

He argued that generally, the connected offences are transferred to the central agency to avoid duplicity of investigation.

Counsel for the government and the CBI argued on the basis of the CBI Manual and the affidavit filed by the Crime Branch that there was no need to transfer the probe to the Central agency and the police were competent to handle the matter.

But the court observed: “Only for facilitating the investigation as a whole, the investigation of the missing files be transferred by the Crime Branch to the CBI.”