Criminal Misc. No. M-25787 of 2009 [ 1 ] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-25787 of 2009 Decided on : May 23,2011. Navin Jindal ................................................ Petitioner Versus State of Haryana ........................................ Respondent Coram: Hon'ble Ms. Justice Ritu Bahri Present: Mr. R.S. Cheema, Sr. Advocate, with Mr. A.S. Cheema, Advocate, for the petitioner. Mr. P.S. Virk, DAG, Haryana. RITU BAHRI, J. The present petition has been filed under Section 482 Cr.P.C., for quashing of FIR No. 107 dated 7.4.2009 (Annexure P-1) under Section 3 of the Haryana Prevention of Defacement of Property Act, 1989 (for short “the Act”) registered at Police Station Shahbad District Kurukshetra and all the subsequent proceedings arising therefrom. During the election campaign, the petitioner had installed the hoarding in dispute within the area of municipality of Shahbad on the G.T. Road. At that time, the Returning Officer-cum-Deputy Commissioner, Kurukshetra had not earmarked any site as per the provisions of Section 3 of the Act. The open land on which this board was installed belongs to Swaran Singh and Harbans Singh and is occupied Criminal Misc. No. M-25787 of 2009 [ 2 ] by Baldev Singh who was cultivating the same on rental basis. Baldev Singh was affiliated to Indian National Congress and is a staunch supporter of the petitioner.Vide Annexure P3 Baldev Singh had given consent for installation of hoardings by the petitioner on his land. Petitioner informed the Deputy Commissioner-cum-Returning Officer vide letter dated 4.3.2009 (Annexure P-2) regarding display of hoardings in Kurukshetra Parliamentary Constituency which accompanied Annexure P-3. FIR was registered on 7.4.2009 on the allegation that the hoarding exhibited by the petitioner is in violation of the Act in relation to the Election Code. Mr. Cheema, learned Senior counsel for the petitioner at the outset referred to the definition of property in the Act, Section 2(b) reads as under:- "Property” includes any building, hut, structure, wall, tree, fence, post, pole or any other erection;” The argument put forward is that the property on which the hoarding was installed is an open agricultural land and could not be included under the definition of property under the Act. Therefore, no offence under Section 3A of the Act would be made out. The petitioner had duly informed the Deputy Commissioner-cum-Returning Officer by Annexure P-2 regarding display of hoarding on the land belonging to the land of Swaran Singh and Harbans Singh. The consent of Baldev Singh was provided by Annexure P3. Vide instructions Criminal Misc. No. M-25787 of 2009 [ 3 ] dated 3.4.2009. The Returning Officer has allocated the places for installing hoarding/banners/posters by the political parties. No offence against the petitioner is made out. Learned Deputy Advocate General, Haryana has argued that they were duly informed about the installation of the hoarding and that no complaint has been received by the department from the original owner or the occupier till date. Heard learned counsel for the parties. Section 3, 3A and 5 of the Act are reproduced as under:- “3. Places earmarked for display of advertisement or writing:- All advertisements and writings shall be made only at places earmarked by the Block Development and Panchayats Officer or Social Education and Panchayats Officer in rural areas and Executive Officer or Secretary of the Municipality or any other agency notified by the Government, as the case may be, in urban areas, on the payment of fee to be levied by the above authorities at such rates as may be prescribed. 3A Penality of defacement of property:- (1) Whoever defaces any property in public view except and board or wall provided for advertisement and publicity, by wiring or marking with ink, chalk, paint or any other material, except for the purpose of indicating the name and address of the owner or Criminal Misc. No. M-25787 of 2009 [ 4 ] occupier of such property, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees or with both. Provided further that sign boards fixed by any person, individual or institution on their own property occupied by them at their cost, shall be exempted from the provisions of sub-section (1) Provided further that the owners or managers of the organisations making defacement of the properties of their business activities, shall be reasponsible for removing such defacement and the burden of proving their innocence for such defacement, shall rest on them. (2) Where any offence committed under sub- section (1) is for the benefit of some other person or a company or other body corporate or an association of persons, whether incorporated or not, or a political party or its candidates, then such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or person concerned with the management thereof, as the case may be, shall unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence. Criminal Misc. No. M-25787 of 2009 [ 5 ] (5) Power of Government to remove defacement – (1) Without prejudice to the provisions of Section 3A, it shall be competent for the Government to take such steps as may be necessary for erasing any writing, freeing any defacement or removing any mark from any property. The Government shall have the power to conduct or cause to conduct, through the District Magistrate concerned, spot inspections with regard to defacement of property. If on such inspections it is found that specific permission of the owner or occupier of the property has not been obtained, action for removal of defacement shall be taken forthwith at the expense of the person or persons found guilty. In case the erasing is done by the Government, before doing so, a notice of two weeks shall be given to owner or occupier of the property to erase or remove the defacement. The expenses is removing of erasing the defacement, shall be borne by the owner or occupier found guilty. (2)Any amount due under this Act, on an application made in this behalf by the authorities mentioned in Section 3, to the Collector, shall be recovered as arrears of land revenue. As per Section 3 of the Act, vide Annexure P4 dated 3.4.2009 the Returning Officer, Kurukshetra had earmarked Criminal Misc. No. M-25787 of 2009 [ 6 ] the area in Municipal Council, Shahbad, belonging to the Municipality, where on payment of fee the advertisements, hoardings and banners/pamphlets/posters by the political parties would be displayed and on other places of Municipal Council apart from the area earmarked it was prohibited. In case of violation, action was to be initiated. There is no law prohibiting display of hoardings on agricultural land outside the Municipal limits. In the present case, hoardings were displayed with the consent of Baldev Singh, Occupier of the land, (Annexure P-3) near G.T.Road, Shahbad as per Annexure P-2. This was not a municipal land and there was no violation of instructions dated 3.4.2009 (Annexure P-4) As per Section 3-A penalty for defacement of the property. Exemption is provided to sign boards fixed by persons on property owned by private persons. The petitioner's case falls under the exemption of Section 3-A. The petitioner had informed the Deputy Commissioner-cum- Returning Officer vide Annexure P2 dated 4.3.2009 of display of the hoardings on the land belonging to Swaran Singh and Harbans Singh. The agricultural land on which the hoardings have been installed is not covered under the definition of property as per Section 2-B of the Haryana Prevention of Defacement of Property Act, 1989. The consent of Baldev Singh, occupier of the land, was taken vide Annexure P-3. For all intents and purposes the petitioner is entitled to Criminal Misc. No. M-25787 of 2009 [ 7 ] exemption as per Section 3-A of the Act if applied. As per Section 5, the Government has the power to conduct spot inspections with regard to defacement of the property. If it is found that specific permission of the owner is not taken, action for removal of the defacement shall be taken. In the present case, the consent of Baldev Singh, occupier of the property, has been taken vide Annexure P-3. There is violation of no law in displaying the hoardings outside the Municipal limits with the consent of the occupier of the land. Accordingly FIR No. 107 dated 7.4.2009 under Section 3 of the Haryana Prevention of Defacement of Property Act, 1989 registered at Police Station Shahbad, District Kurukshetra is quashed with all consequential proceedings. Petition stands allowed. ( RITU BAHRI ) JUDGE 23.5.2011 rupi