Crl.Misc.No.M-40990 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No.M-40990 of 2007 Date of decision: 18.11.2009 Ayush Bhalla ... Petitioner versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.J.S.Rattu, Advocate, for the petitioner. Mr.P.S.Sidhu, Addl.AG, Punjab. ... JORA SINGH, J. Ayush Bhalla filed this petition under Section 482 Cr.P.C. for quashing of FIR No.23 dated 5.2.2005 under Sections 3, 6, 9, 15 and 36 of the Punjab Apartment and Property Regulation Act, 1995 (for short `the Act'), registered at Police Station Haibowal, Ludhiana. Allegation in the FIR is that under the Act, land measuring 1000 sq. meters or more cannot be sold for residence, commercial, industrial or any other construction. No person can act as promoter or estate agent (property dealer) until he gets the registration certificate as promoter/estate agent from the competent officer of PUDA. Any persons developing colonies without getting registration certificate as promoter from the competent officer and requisite licence for developing unauthorised colony are liable to be punished under Section 36 of the Act to undergo imprisonment for three years or fine or both. Kunda Singh has established an unauthorised colony by converting his land comprised in Khasra Nos.23//14, 15/1, 16, 17 situated in the area of Village Ayali Khurd, Tehsil and District Ludhiana, into plots, against the provisions of the Act, without Crl.Misc.No.M-40990 of 2007 2 obtaining certificate of registration of promoter under Section 21 of the Act and a license under Section 5 of the Act, by selling the land into plots. Plot measuring 3 marlas was sold to Tripta Malhotra vide sale deed dated 25.1.1999, plot measuring 2-1/2 marlas was sold to Baljit Sokhi vide sale deed dated 2.6.1999, plot measuring 3 marlas was sold to Narinder Pal Singh vide sale deed dated 22.11.1999, plot measuring 5 marlas was sold to Abdul Rashid vide sale deed dated 28.2.2003 and plot measuring 7 marlas was sold to Barjinder Nath vide sale deed dated 12.3.2003. By selling 5 different plots without getting licence and certificate of registration of promoter, land was converted into colony in violation of Sections 2(i), 3, 5, 21 and 36 of the Act. Notice of motion was issued. State filed reply. Learned counsel for the petitioner argued that vide 5 different sale deeds dated 25.1.1999, 2.6.1999, 21.11.1999, 28.2.2003 and 13.3.2003, land sold was 20-1/2 marlas, i.e., less than 1000 sq. meters. Complaint is dated 31.12.2004 whereas FIR is dated 5.2.2005. Maximum punishment under Section 36 of the Act is three years or fine or both. First three sale deeds executed in the year 1999 are not to be taken into consideration. Learned counsel for the petitioner placed reliance on (i) 1993(3) RCR (Crl.) 394, Teja Singh vs. State of Punjab and another, (ii) 1994(4) All India Land Laws Reporter 390, State of Punjab vs. Mohinder Singh, (iii) 2002 HRR 554, Partap Singh and another vs. State of Haryana and another, and (iv) Crl.Misc. No.8278-M of 1993, Adrash Kumar vs. Junior Engineer, decided on 12.4.2002. Learned State counsel argued that total area of the land, on Crl.Misc.No.M-40990 of 2007 3 which colony is to be established, is about 4 kanals. Although the land sold as per registered sale deeds is less than 1000 sq. meters, offence under the Act was complete after the execution of last sale deed. As per pleadings of the parties, 5 different sale deeds were executed by Kunda Singh. First sale deed is dated 25.1.1999 qua 3 marlas in favour of Tripta Malhotra, second sale deed is dated 2.6.1999 qua 2-1/2 marlas in favour of Baljit Sokhi, third sale deed is dated 21.11.1999 qua 3 marlas in favour of Narinder Pal Singh, fourth sale deed is dated 28.2.2003 qua 5 marlas in favour of Abdul Rashid and fifth sale deed is dated 13.3.2003 qua 7 marlas in favour of Barjinder Nath. Reply to para No.3 by the State is to the effect that contents of para No.3 are admitted to be correct. That means vide 5 different sale deeds, land measuring 20-1/2 marlas was sold. As per Section 2(i) of the Act, definition of colony is reproduced as under:- “2(i) “colony” means an area of land not less than one thousand square meters divided or proposed to be divided into plots for residential, commercial, or industrial purpose, but does not include any area of abadi deh of a village falling inside its Lal Lakir or phirny or any area of land divided or proposed to be divided- (i) for the purpose of agriculture; or (ii) as a result of family partition, inheritance, succession or partition of joint holdings not with the motive of earning profit; or (iii) by the owner of a factory for setting up a housing Crl.Misc.No.M-40990 of 2007 4 colony for the labourers or the employees working in the factory: Provided that there is no profit motive; Explanation.- The term “agriculture” used in clause (i) shall include horticulture, dairy farming and poultry farming.” As per definition of the colony, land sold by executing different sale deeds for residential, commercial or industrial purposes should not be less than 1000 sq. meters, but in the case in hand, land sold vide different sale deeds is less than 1000 sq. meters. Next allegation of the petitioner is that the complaint is dated 31.12.2004, whereas FIR is dated 5.2.2005. Three sale deeds executed in the year 1999 are not to be taken into consideration to opine that the petitioner is liable for punishment under Section 36 of the Act. In Crl.Misc.No.8278-M of 1993 decided on 12.4.2002 (supra), it was held that accused converted land into plots and sold the plots without obtaining licence- Complaint filed by the authority 5 years after last transaction- Period of limitation was three years under Section 468 Cr.P.C.- Complaint was quashed. Under Section 473 Cr.P.C., Court is competent to extend period of limitation, but only if the Court is satisfied that delay was properly explained or that it is necessary to do so in the interest of justice. In Partap Singh's case (supra), it was held as under:- “Haryana Development and Regulation of Urban Areas Act, 1975- Section 2(c)- Colony- Plot-The meaning of plot given in the Act means that more than one plot out of the area had to be carved out before a colony can be said to have come into Crl.Misc.No.M-40990 of 2007 5 existence- There was no allegation in the complaint that any plot beyond one was sold by the petitioner- No case for violation of law is made out as no colony had been set up by the petitioner by mere sub-division of his land- FIR against the petitioner quashed.” In State of Punjab vs. Mohinder Singh's case (supra), it was held as under:- “Land sold by the respondent along with co-sharers, 8 plots of land, sold during 1978 to 1986- No illegality found by trial Court- State in appeal- Contention is that respondent has created colony in contravention of the Act and objection not barred by limitation- Held- 5 plots were sold upto 1981 and objection to that sale is barred by limitation- Only two plots were sold in 1986 and that does not create a colony- Revision dismissed.” In Teja Singh's case (supra), it was held that accused selling agricultural land in contravention of provisions of Section 11 of Punjab Regulation of Colonies Act- Limitation to file complaint under Section 468 Cr.P.C. is three years- Complaint filed after expiry of three years- Proceedings quashed. Trial Court did not record statement of witnesses or of the complainant nor examined the documents- Court passed the summoning order stating that from facts as mentioned in the complaint there are sufficient grounds to proceed against the accused- Held, Court did not apply its judicial mind- Summoning order quashed. Annexure P-1 is the copy of application for grant of licence by Vikas House Building Co. Pvt. Ltd. Crl.Misc.No.M-40990 of 2007 6 Annexure P-2 is the notice requesting the applicant, i.e., Y.P.S.Bhalla, MD, Vikas House Building Co. Pvt. Ltd., to comply with certain conditions. Annexure P-3 is the copy of certificate of registration as promoter in favour of Y.P.S.Bhalla son of K.S.Bhalla, bearing Registration No.A.C.A./PUDA/LDH/30/1981 dated 7.5.2001. Annexure P-4 is the copy of report under Section 173 Cr.P.C. dated 20.9.2006, whereas the last sale deed, i.e., fifth one, is dated 13.3.2003. That means, after September, 2006, challan was presented in the Court. Annexure P-5 is the copy of order dated 27.8.2007 of Additional Chief Administrator, PUDA, Ludhiana. As discussed earlier, with the execution of 5 different sale deeds, without getting licence and certificate of registration under Section 21 of the Act, offence punishable under Section 36 of the Act was complete with execution of last sale deed dated 13.3.2003, whereas challan was presented in the Court after the order of Additional Chief Administrator, PUDA, Ludhiana, dated 27.8.2008. Challan is barred by limitation under Section 468 Cr.P.C. because maximum punishment under Section 36 of the Act is three years or fine or both. Section 468 Cr.P.C. is reproduced as under:- “468 (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- Crl.Misc.No.M-40990 of 2007 7 (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a tyerm of exceeting one year but not exceeding three years." Learned State counsel firstly failed to convince as to how much is the area of Khasra Nos.23//14, 15/1, 16, 17. Whether as per 5 different sale deeds, more than 1000 sq. maters of land was sold. Lastly, when the last sale deed to complete offence punishable under Section 36 of the Act is dated 13.3.2003 qua the plot measuring 7 marlas, then how under Section 468 Cr.P.C., challan is within limitation, when report under Section 173 Cr.P.C. is dated 20.9.2009. List of witnesses attached with the report is dated 25.11.2006 and the order of Additional Chief Administrator, PUDA, Ludhiana (Annexure P-5) is dated 27.8.2009, particularly when no order of the Court extending period of limitation under Section 473 Cr.P.C. No authority was cited by learned State counsel to the effect that when last sale deed to complete offence punishable under Section 36 of the Act is dated 13.3.2003 and the total land sold as per 5 different sale deeds is measuring 20-1/2 marlas, then the petitioner is liable for punishment under Section 36 of the Act and the challan is within limitation under Section 468 Cr.P.C. In the light of above discussion, petition is allowed. FIR No.23 dated 5.2.2005 under Sections 3, 6, 9, 15 and 36 of the Punjab Apartment and Property Regulation Act, 1995 (for short `the Act'), registered at Police Crl.Misc.No.M-40990 of 2007 8 Station Haibowal, Ludhiana, with all subsequent proceedings arising therefrom, is ordered to be quashed. 18.11.2009 ( JORA SINGH ) pk JUDGE