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SC asks Centre to consider withdrawing plea for recall of CBI probe directions on Hindustan Zinc stake sale

The Centre has said that the finding of the court has been reached and recorded based upon the file noting and one “self-contained note” filed by the CBI in a sealed cover.

The Centre in its application before the registrar has sought to recall/modify the directions issued on November 18, 2021. (File)
The Centre in its application before the registrar has sought to recall/modify the directions issued on November 18, 2021. (File)

The Supreme Court Monday asked the Centre to consider withdrawing a plea for recall of the top court’s certain directions related to registration of CBI probe into the government decision for 26 per cent stake sale in Hindustan Zinc Ltd (HZL) in 2002.

A bench of Justices D Y Chandrachud and Dinesh Maheshwari, agreed to hear the Centre’s plea, against the order of its registrar, after Solicitor General Tushar Mehta insisted on the matter being heard after some time.

The registrar (judicial) Chirag Bhanu Singh of the top court on January 12 had said in the order that the application seeking recall/modification of the directions issued by the court on November 18 last year, do not disclose any reasonable cause to be entertained and same cannot be received for registration under the provisions of Supreme Court Rules, 2013.

The bench said, “Since Solicitor General is seeking some time to argue the matter. We will grant some time. But in the meantime, the government may consider withdrawing this application. There is a consistent line of judgements on the issue that a review needs to be filed.” At the outset, advocate Prashant Bhushan, appearing for a confederation of officers association on whose plea the probe was ordered, said that he has preliminary objection to the maintainability of the plea of Centre, as after a judgement is delivered in the matter, a recall or modify application cannot be filed but a review petition has to be filed. Mehta said he would like to argue the matter as recall has different connotations in law.

Bhushan contended that the registrar has correctly held that the application is not maintainable and a review needs to be filed and this is how this application is listed before the court. “The government has said that the CBI notings which were relied upon by the court to arrive at its finding, were not known to it. As far as I remember, the government had itself during the arguments said that CBI file noting should not be shared with anyone”, Bhushan said.

The Centre in its application before the registrar has sought to recall/modify the directions issued on November 18, 2021 in which the court has said that there is sufficient material for registration of a regular case in relation to the 26 per cent disinvestment of HZL by the Union Government in 2002 and the CBI is directed to register a regular case and proceed in accordance with law.

It has said that the court may, pending the hearing and final decision of this application, be pleased to suspend the direction to the CBI to register a regular case.

The Centre has said that the finding of the court has been reached and recorded based upon the file noting and one “self-contained note” filed by the CBI in a sealed cover.

“It is respectfully submitted that the CBI had, after an elaborate and through preliminary enquiry, and after considering views and counter views in the hierarchy, decided to close the preliminary enquiry and, therefore the facts relating to decision to disinvest 26 per cent culminating into the actual disinvestment were never placed by the applicant before this court,” it said.

The Ministry of Department of Investment and Public Assets Management, which has filed the application, said that it has no occasion to know that the CBI had not placed the complete facts.

“From the perusal of the order and upon ascertainment of the true facts it has become clear, inter alia, that the disinvestment of 26 per cent of HZL was not made based on any irregularity, there were no irregularities in the bidding process and the same had been duly approved by Cabinet Committee on Disinvestment (CCD),” it said.

The government further said keeping in view the intricacies involved in the commercial decision making process, the CBI had at one stage rightly concluded that no case of registering a regular case is made out.

“The disinvestment in question is about 20 years Old. The decision making process had been collective. Many of the officers who participated in the process would have either died or must be in the last phase of their life. The possibility of them remembering anything after 20 years is also remote,” it said.

The government sought setting aside the order of the registrar (Judicial) saying it erroneously held that the application is not a simple plea for seeking recall/ modification and it literally tantamount to seeking review of the judgement pronounced by this court.

On November 18, last year, the top court had ordered the CBI to register a case into the various alleged irregularities in two decades old decision of the first NDA government, led by then Prime Minister Atal Bihari Vajpayee which had decided to divest stake in HZL to a strategic partner – SOVL.

On perusal of reports and recommendations of CBI officials, it is of considered opinion that the 2002 disinvestment in the ‘Mini-Ratna’ designated firm evinces a prime facie case for registration of a regular case, the apex court had said.

The top court, however, did not stall the proposed disinvestment of the government’s 29.54 per cent residual stake in the open market and said it should be done strictly in accordance with SEBI rules and regulations to ensure that the best price is realized for the sale of the shareholding.

The Sterlite Opportunities and Ventures Ltd (SOVL), the majority shareholder of HZL has stated before the court that it is not exercising its second call option under the Share Purchase Agreement.

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