CRIMINAL MISCELLANEOUS 18904 of 2010 on 30 October 1995

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 forMr.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.

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SABINA, J.

Vide this order, the above mentioned two petitions would be disposed of as the petitioners have sought quashing of FIR

No.453 dated 7.11.2009 under Section 36 (1) of Punjab Apartmentand Property Regulation Act, 1995 (the Act for short) registered atPolice Station Kharar, District Sahibzada Ajit Singh Nagar and all thesubsequent proceedings arising therefrom.

Learned counsel for the petitioners have submitted thatthe Act was not applicable to the facts of the present case. In thepresent case, the act/ omission was committed by the petitioners inthe year 1989-90, whereas, the FIR in question had been registeredwith regard to the offences prescribed under the Act, which wasenacted in the year 1995. In support of his arguments, learnedcounsel have placed reliance on the decision of this Court inKrishan Lal Chabra vs. Punjab Urban Planning DevelopmentAuthority, Ludhiana 1997 (1) RCR (Civil) 134, wherein, it was heldas under:- “6. A few provisions of the Act may be noticed. The Actwas published in the Gazette on August 9, 1995. InSection 1(3), it was provided that the Act "shall come intoforce on such date as the State Government may bynotification in the official Gazette, appoint and differentdates 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, theAct was enforced with effect from October 15, 1995 in thewhole of the State of Punjab. Under Section 4, it hasbeen inter alia provided that "no promotor shall issue an advertisement or prospectus, offering for sale anyapartment or plot or inviting persons who intend to takesuch apartments or plots to make advances or deposits,unless-(a) the promoter holds a certificate of registrationunder sub-section (2) of Section 21...... and its number ismentioned in the advertisement or prospectus..,.." BySection 21(1), it was provided that "from such date asmay be fixed by the State Government, by notification inthe official Gazette in this behalf, no person shall carry onthe business of promoter or estate agent, or represent orhold himself out as carrying on such business, exceptunder and in accordance with the terms and conditions ofthe certificate of registration granted under this Act".Clause (2) provides for the submission of an applicationfor registration as a promoter or as an estate agentalongwith the prescribed fee on the prescribed form. It is,thus, clear that the provision for registration of promotersand estate agents was to become operative from a dateto be fixed by the State Government by notification in theofficial Gazette. The application had to be submitted on aprescribed form. The prescribed fee had also to bedeposited. It is only thereafter that the bar under Section4 could become operative.

7. Admittedly, the rules under the Act were published inthe Gazette on November 23, 1995. This fact wasthe Gazette on November 23, 1995. This fact was

admitted by Mr. Talwar. Furthermore, the notificationunder Section 21(1) was published on November 10,1995. By this notification, the Governor of Punjab hadfixed the day of 30th November, 1995 from which noperson could carry on "the business of promoter or estateagent...." Consequently, it is apparent that before 30th ofNovember, 1995, no person was debarred from carryingon "the business of promoter or estate agent...." underthe Act. As such, even the bar under Section 4 regardingissue of an advertisement could not have applied. In thissituation, it cannot be said that the petitioner had acted inviolation of the provisions of Sections 4 or 21 in issuingthe two advertisements dated October 30, 1995 andNovember 6, 1995. Similar would be the position withregard to Section 5 and 18. The two latter provisions dealwith the development of land into colonies and regulationof property transactions. Thus, the very basis on whichthe Administrator sought the registration of a case againstthe petitioner was ill-founded. Consequently, there was nooccasion for the registration of any case in this behalfagainst the petitioner.

8. Mr. Grover, learned counsel for respondent No. 1submitted that mere writing of letter or registration of thecase gave no cause of action to the petitioner. Accordingto the Learned counsel, the petition was wholly premature.

9. This contention cannot be accepted. In the writtenstatement filed on behalf of respondent Nos. 2 to 4, it hasbeen pointed out that besides letter dated February 2,1996, a letter dated January 12, 1996 had also beenwritten by the Administrator. Both the letters had beenmarked to SHO, Police Station, Sarabha Nagar fornecessary action. It has undoubtedly been stated that"the enquiry got made in the matter has revealed that nopolice official has visited the house of the petitioner norhe has been summoned to the police station so far." Ithas been further stated that the offence under the Act iscognizable and the police can register a case against thepetitioner. In this situation, it is apparent that the petitionerfaced an imminent danger. He had a cause of action. Hewas not required to wait till he was actually arrested andhis freedom jeopardised. His action in approaching thecourt cannot be said to be premature. A citizen is not towait for loss of liberty before approaching the court. If hisliberty is threatened, even though he has committed nooffence, he is not debarred from filing a petition. This isprecisely what has been done in the present case.

10. Learned counsel for the respondents has also pointedout that prior to the promulgation of this Act, 1975 Act(sic) were in force. Even under those provisions, a person was debarred from setting up a colony except aftercompliance thereof. It is undoubtedly so. However, bysection 46, the provisions of the 1975 Act were repealed.On the promulgation of the 1995 Act, the provisions of the1975 Act were no longer in force. Thereafter, it hadbecome incumbent on a person to get himself registeredin view of the provisions of Section 21. The date in thisbehalf was fixed as November 30, 1995 vide notificationdated November 10, 1995. This application forregistration had to be made on the prescribed form. Theform had to be prescribed under the rules. The rules werealso promulgated on November 23, 1995. Thus there wasa hiatus in the intervening period. It was during thisinterval when the 1975 Act did not exist and theprovisions of 1995 Act regarding registration as apromoter were not in force that the advertisements hadbeen issued by the petitioner. Consequently, thecontention raised by the learned counsel for respondentNo. 1 cannot be sustained.”

Learned counsel for respondent No.2, on the other handhas opposed the petitions.

Arguments

After hearing learned counsel for the parties, I am of theopinion that the present petitions deserve to be allowed.

In the present case, a perusal of the FIR itself reveals thatin the year 1986 Jyoti Gas Services and Sandhu Enterprises had advertised for setting up a colony by sale of plots. FIR wasregistered against the accused but thereafter, the police soughtcancellation of the FIR as it was found that the colonizer had notviolated the colony Act and had not sold the plots. The DirectorHousing Construction and Urban Development Department,Chandigarh vide order dated 20.5.1993 had sought that FIR beregistered against the colonizer for carving the plots. However, noaction was taken by the police. A writ petition was filed in this Courtby Giani Kartar Singh in the year 2007 and this Court gave adirection that action be taken against the colonizers. Thereafter, FIRin question was registered against the petitioners. However, the FIRcould not have been registered against the petitioners in violation oflaw.

Section 46 (3) of the Act reads as under:- “Notwithstanding such repeal, anything done or anyaction taken under the Act so repealed including anynotification, order, notice issued, application made, orpermission granted, which is not inconsistent with theprovisions of this Act shall be deemed to have been doneor taken under the corresponding provisions of this Act asif this Act was in force at the time such thing was done oraction was taken and shall continue to be in force, unlessand until superseded by anything done or any actiontaken under this Act.”

The said provision fails to advance the case of the respondents as no action had been initiated against the petitionersunder the repealed Act which would have legalised the continuationof action against the petitioners under the Act, 1995. The case ofthe petitioners is rather covered by the decision of this Court inKrishan Lal Chabra's case (supra).

Accordingly, these petitions are allowed. FIR No.453dated 7.11.2009 under Section 36 (1) of the Act registered at PoliceStation Kharar, District Sahibzada Ajit Singh Nagar and all thesubsequent proceedings arising therefrom are quashed.

March 01, 2013

anita

(SABINA) JUDGE