Criminal Misc. No. M-6599 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-6599 of 2008 Date of decision:26.03.2009 Baljinder Singh Sra ……Petitioner Versus State of Punjab …..Respondent BEFORE: HON’BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Dhiraj Chawla, Advocate for the petitioner. Mr. C.S.Brar, DAG, Punjab for the respondent. Rajive Bhalla,J.(Oral) Prayer in this petition filed under Section 482 of the Code of Criminal Procedure, is for quashing of FIR NO. 107, dated 22.07.2007, registered under Sections 2(i), 3, 5, 21 and 36 of the Punjab Apartment and Property Regulation Act,1995 (hereinafter referred to as the Act), at Police Station Haibowal, District Ludhiana. Counsel for the petitioner contends that the petitioner and his father late Shri Mohinder Singh, were co-owners in possession of agriculture land situated in village Peeru Banda, Tehsil and District Ludhiana. The allegation against the petitioner is that he sold more than one thousand square meters of agriculture land out of Khasra no. 5314/2712/663 and is, therefore, liable to be prosecuted for commission of offences, referred to in the FIR. It is argued that the petitioner has sold one kanal 17 marlas i.e., 809 sq. metres of land out of his own share. However, the respondent alleges that land 1 Criminal Misc. No. M-6599 of 2008 measuring 4 kanals and 4 marlas sold by his father would have to be inferred as a sale by the petitioner as it was sold by the petitioner as attorney of his father. The petitioner is also sought to be prosecuted as he and his father were co-sharers of undivided property and therefore, sale by one co-sharer would be deemed to be sale by another co- sharer. It is argued by counsel for the petitioner that sale of land by a co-sharer whether by himself or by his attorney is a sale by a co- sharer alone and for the purpose of calculating one thousand square metres of land cannot be clubbed with the sale by another co-sharer so as to prosecute the other co-sharer, as held by this court in Shashi Mohan Chopra vs. State of Punjab and another(Crimial Misc. No. 30260-M of 2003; decided on 29th January, 2007)(HC), Dilbagh Rai and others vs. The State of Haryana reported as 1984 C.C.Cases 499(HC), and in the case of Baljeet Singh and another vs. State of Haryana reported as 1994(2) R.R.R.664. Counsel for the State of Punjab submits that the petitioner and his father were co-sharers of undivided property and therefore, sale by either of them beyond the prescribed limit of one thousand square metres of land would lead to the prosecution of both. It is argued that though the petitioner has sold one kanal 17 marlas i.e., less than the permissible limit of one thousand square metres but as he has sold 4 kanals and 4 marlas as attorney of his father, he has committed offences for which he must face prosecution. I have heard counsel for the parties and perused the FIR. Admittedly, the petitioner was a co-sharer with his father. It is not denied that the petitioner has sold one kanal and 17 marlas of his land and 4 kanals 17 marlas on behalf of his father, acting as the latter's attorney. The respondent alleges that as the petitioner was owner of an undivided share in joint property and even if it is accepted that he cannot be prosecuted as he sold the land of his father being his 2 Criminal Misc. No. M-6599 of 2008 attorney, his status as a co-sharer of undivided share in joint property would make him liable for prosecution under Section 36 of the Act. Joint property, envisages a community of interest and a commonality of possession in the entire body of joint owners but does not debar a co-sharer from alienating joint property to the extent of his share holding. Admittedly, if taken individually, the petitioner has not sold land beyond the permissible limit of one thousand square metres. He is sought to be prosecuted by including the land sold by him as attorney of his father. While considering whether land sold by one co-sharer can be included in the land of the other co-sharer for the purpose of prosecution under the Act, this Court in Shashi Mohan Chopra vs. State of Punjab and another(Crimial Misc. No. 30260-M of 2003; decided on 29th January, 2007) held as follows: It has been contended by the learned counsel for the petitioner that even if the contents of the FIR are accepted to be correct, yet no offence under the Act has been made out. Section 2 sub clause(i) defines “Colony” as follows:- “Colony:--“Colony” means an area of land not less than 1000 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 the 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 3 Criminal Misc. No. M-6599 of 2008 (ii) as a result of family partition, inheritance, succession or partition of joint holding not with the motive of earning profit; or (iii) by the owner of a factory for setting up a housing 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; On the strength of the aforesaid provisions of law, it was contended by the learned counsel for the petitioner that the offence does not fall within the aforesaid definition and therefore, the entire proceedings, even if taken to its logical consequences, would not result in the conviction of the petitioner. In support of his contention, he has relied upon two judgments of this Court reported as Dilbagh Rai and others vs. The State of Haryana reported as 1984 C.C. Cases 499 (HC) and in Baljeet Singh and another vs. State of Haryana reported as 1994(2)R.R.R.664. 4 Criminal Misc. No. M-6599 of 2008 The aforesaid contention of the petitioner was refuted by the learned counsel for the respondent by contending that the offence was complete once the property of more than 1000 sq. metres is sold by a person which includes a joint family and in the absence of any evidence, which would prima facie show the severance of the joint family status, it cannot be said that the petitioner has not committed the aforesaid offence. I have heard learned counsel for the parties. Concededly, land was sold by virtue of four different sale deeds. Therefore, even if the property continued to be joint, it cannot be said that the vendors had sold anything more than their respective shares, which does not exceed more than 1000 sq. metres. The provisions of the aforesaid Act are, therefore, clearly not attracted. It is, therefore, apparent that the controversy herein is squarely covered by the above judgments. A similar view was adopted in Dilbagh Rai and others vs. The State of Haryana reported as 1984 C.C.Cases 499(HC), and in Baljeet Singh and another vs. State of Haryana reported as 1994(2) R.R.R.664 where, while considering a similar question though relating to the definition of “colony” as defined under Section 2(c) of the Haryana Development and Regulation of Urban Areas Act 1975, which is pari materia to the definition of colony as defined under the instant enactment, it was held that in the case of joint owners the sale by individual co-sharers would have to be considered separately . 5 Criminal Misc. No. M-6599 of 2008 A reference would have to be made to an argument that as the petitioner also sold the land as the attorney of his father even if, he is not to be prosecuted on account of his status as a co-sharer, he would have to face prosecution having violated the Act by selling land more than the prescribed limit as the attorney of his father. This submission cannot be accepted as the attorney merely acts as an agent. Admittedly, the appellant has sold one kanal and 7 marlas i.e., 809 sq. metres and therefore, has sold land within the permissible limit of one thousand square metres. For the aforestated reasons, this petition is allowed and the FIR NO. 107, dated 22.07.2007, registered under Sections 2(i), 3, 5, 21 and 36 of the Punjab Apartment and Property Regulation Act,1955 (hereinafter referred to as the Act), at Police Station Haibowal, District Ludhiana and all consequential proceedings arising therefrom are quashed. [RAJIVE BHALLA] JUDGE 26th March, 2009 SKaushik 6