Criminal Misc. No.M-18904 of 2011 (O&M) 1 Criminal Misc. No.M-31788 of 2010 (O&M) In the High Court of Punjab and Haryana at Chandigarh Date of decision: 1.3.2013 Criminal Misc. No.M-18904 of 2011 (O&M) Bhupinder Pal Singh ......Petitioner Versus State of Punjab and another .......Respondents Criminal Misc. No.M-31788 of 2010 (O&M) Anil Kumar ......Petitioner Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Naresh Jain, Advocate, for the petitioner in CRM-M No. 18904 of 2010. Mr.S.S.Sodhi, Advocate for Mr.A.K.Bansal, Advocate,, for the petitioner in CRM-M No. 31788 of 2010. Mr.K.D.S.Sidhu, Addl.A.G, Punjab. Mr.B.S.Mangat, Advocate, for respondent No.2. **** SABINA, J. Vide this order, the above mentioned two petitions would be disposed of as the petitioners have sought quashing of FIR Criminal Misc. No.M-18904 of 2011 (O&M) 2 Criminal Misc. No.M-31788 of 2010 (O&M) No.453 dated 7.11.2009 under Section 36 (1) of Punjab Apartment and Property Regulation Act, 1995 (the Act for short) registered at Police Station Kharar, District Sahibzada Ajit Singh Nagar and all the subsequent proceedings arising therefrom. Learned counsel for the petitioners have submitted that the Act was not applicable to the facts of the present case. In the present case, the act/ omission was committed by the petitioners in the year 1989-90, whereas, the FIR in question had been registered with regard to the offences prescribed under the Act, which was enacted in the year 1995. In support of his arguments, learned counsel have placed reliance on the decision of this Court in Krishan Lal Chabra vs. Punjab Urban Planning Development Authority, Ludhiana 1997 (1) RCR (Civil) 134, wherein, it was held as under:- “6. A few provisions of the Act may be noticed. The Act was published in the Gazette on August 9, 1995. In Section 1(3), it was provided that the Act "shall come into force on such date as the State Government may by notification in the official Gazette, appoint and different dates may be appointed for different areas of the State." As already noticed, vide notification dated October 13, 1995, a copy of which is on record as Annexure P3, the Act was enforced with effect from October 15, 1995 in the whole of the State of Punjab. Under Section 4, it has been inter alia provided that "no promotor shall issue an Criminal Misc. No.M-18904 of 2011 (O&M) 3 Criminal Misc. No.M-31788 of 2010 (O&M) advertisement or prospectus, offering for sale any apartment or plot or inviting persons who intend to take such apartments or plots to make advances or deposits, unless-(a) the promoter holds a certificate of registration under sub-section (2) of Section 21...... and its number is mentioned in the advertisement or prospectus..,.." By Section 21(1), it was provided that "from such date as may be fixed by the State Government, by notification in the official Gazette in this behalf, no person shall carry on the business of promoter or estate agent, or represent or hold himself out as carrying on such business, except under and in accordance with the terms and conditions of the certificate of registration granted under this Act". Clause (2) provides for the submission of an application for registration as a promoter or as an estate agent alongwith the prescribed fee on the prescribed form. It is, thus, clear that the provision for registration of promoters and estate agents was to become operative from a date to be fixed by the State Government by notification in the official Gazette. The application had to be submitted on a prescribed form. The prescribed fee had also to be deposited. It is only thereafter that the bar under Section 4 could become operative. 7. Admittedly, the rules under the Act were published in the Gazette on November 23, 1995. This fact was Criminal Misc. No.M-18904 of 2011 (O&M) 4 Criminal Misc. No.M-31788 of 2010 (O&M) admitted by Mr. Talwar. Furthermore, the notification under Section 21(1) was published on November 10, 1995. By this notification, the Governor of Punjab had fixed the day of 30th November, 1995 from which no person could carry on "the business of promoter or estate agent...." Consequently, it is apparent that before 30th of November, 1995, no person was debarred from carrying on "the business of promoter or estate agent...." under the Act. As such, even the bar under Section 4 regarding issue of an advertisement could not have applied. In this situation, it cannot be said that the petitioner had acted in violation of the provisions of Sections 4 or 21 in issuing the two advertisements dated October 30, 1995 and November 6, 1995. Similar would be the position with regard to Section 5 and 18. The two latter provisions deal with the development of land into colonies and regulation of property transactions. Thus, the very basis on which the Administrator sought the registration of a case against the petitioner was ill-founded. Consequently, there was no occasion for the registration of any case in this behalf against the petitioner. 8. Mr. Grover, learned counsel for respondent No. 1 submitted that mere writing of letter or registration of the case gave no cause of action to the petitioner. According to the Learned counsel, the petition was wholly Criminal Misc. No.M-18904 of 2011 (O&M) 5 Criminal Misc. No.M-31788 of 2010 (O&M) premature. 9. This contention cannot be accepted. In the written statement filed on behalf of respondent Nos. 2 to 4, it has been pointed out that besides letter dated February 2, 1996, a letter dated January 12, 1996 had also been written by the Administrator. Both the letters had been marked to SHO, Police Station, Sarabha Nagar for necessary action. It has undoubtedly been stated that "the enquiry got made in the matter has revealed that no police official has visited the house of the petitioner nor he has been summoned to the police station so far." It has been further stated that the offence under the Act is cognizable and the police can register a case against the petitioner. In this situation, it is apparent that the petitioner faced an imminent danger. He had a cause of action. He was not required to wait till he was actually arrested and his freedom jeopardised. His action in approaching the court cannot be said to be premature. A citizen is not to wait for loss of liberty before approaching the court. If his liberty is threatened, even though he has committed no offence, he is not debarred from filing a petition. This is precisely what has been done in the present case. 10. Learned counsel for the respondents has also pointed out that prior to the promulgation of this Act, 1975 Act (sic) were in force. Even under those provisions, a person Criminal Misc. No.M-18904 of 2011 (O&M) 6 Criminal Misc. No.M-31788 of 2010 (O&M) was debarred from setting up a colony except after compliance thereof. It is undoubtedly so. However, by section 46, the provisions of the 1975 Act were repealed. On the promulgation of the 1995 Act, the provisions of the 1975 Act were no longer in force. Thereafter, it had become incumbent on a person to get himself registered in view of the provisions of Section 21. The date in this behalf was fixed as November 30, 1995 vide notification dated November 10, 1995. This application for registration had to be made on the prescribed form. The form had to be prescribed under the rules. The rules were also promulgated on November 23, 1995. Thus there was a hiatus in the intervening period. It was during this interval when the 1975 Act did not exist and the provisions of 1995 Act regarding registration as a promoter were not in force that the advertisements had been issued by the petitioner. Consequently, the contention raised by the learned counsel for respondent No. 1 cannot be sustained.” Learned counsel for respondent No.2, on the other hand has opposed the petitions. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. In the present case, a perusal of the FIR itself reveals that in the year 1986 Jyoti Gas Services and Sandhu Enterprises had Criminal Misc. No.M-18904 of 2011 (O&M) 7 Criminal Misc. No.M-31788 of 2010 (O&M) advertised for setting up a colony by sale of plots. FIR was registered against the accused but thereafter, the police sought cancellation of the FIR as it was found that the colonizer had not violated the colony Act and had not sold the plots. The Director Housing Construction and Urban Development Department, Chandigarh vide order dated 20.5.1993 had sought that FIR be registered against the colonizer for carving the plots. However, no action was taken by the police. A writ petition was filed in this Court by Giani Kartar Singh in the year 2007 and this Court gave a direction that action be taken against the colonizers. Thereafter, FIR in question was registered against the petitioners. However, the FIR could not have been registered against the petitioners in violation of law. Section 46 (3) of the Act reads as under:- “Notwithstanding such repeal, anything done or any action taken under the Act so repealed including any notification, order, notice issued, application made, or permission granted, which is not inconsistent with the provisions of this Act shall be deemed to have been done or taken under the corresponding provisions of this Act as if this Act was in force at the time such thing was done or action was taken and shall continue to be in force, unless and until superseded by anything done or any action taken under this Act.” The said provision fails to advance the case of the Criminal Misc. No.M-18904 of 2011 (O&M) 8 Criminal Misc. No.M-31788 of 2010 (O&M) respondents as no action had been initiated against the petitioners under the repealed Act which would have legalised the continuation of action against the petitioners under the Act, 1995. The case of the petitioners is rather covered by the decision of this Court in Krishan Lal Chabra's case (supra). Accordingly, these petitions are allowed. FIR No.453 dated 7.11.2009 under Section 36 (1) of the Act registered at Police Station Kharar, District Sahibzada Ajit Singh Nagar and all the subsequent proceedings arising therefrom are quashed. (SABINA) JUDGE March 01, 2013 anita