Allowed

Anil Sharma and Anr. v. State of Haryana and Anr.

Punjab & Haryana HC24 May 2013CRM-M/11774/2013

Case brief

AI extract

What is this about?

A two-judge bench quashed an FIR registered under the Haryana Development and Regulation of Urban Areas Act. The court held that the scale of land sales excluded the definition of a 'colony' and that the prosecution was barred by limitation under section 468 Cr.P.C. as the FIR was filed beyond three years.

What did the court decide?

FIR No. 128 dated 11.9.2012 registered at Police Station Farrukh Nagar, District Gurgaon for offences under sections 7(1) and 10 of the Act with subsequent proceedings quashed.

Anil Sharma and Anr. Vs State of Haryana and Anr. — Cheque Dishonour | Punjab & Haryana HC (2013)

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Crl. Misc. No.M-11774 of 2013

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Misc. No. M-11774 of 2013 (O&M) Date of Decision: May 24^th , 2013

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Anil Sharma and another ... Petitioners

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Versus

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State of Haryana and another .... Respondents

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CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK

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1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest?

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Present Mr. Pritam Saini, Advocate, for the petitioners.

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Mr. Rajat Mor, DAG, Haryana, for the State.

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VIJENDER SINGH MALIK, J.

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Anil Sharma, authorized signatory of M/s Hilltop Metals Limited and Mohan Chand Upreti, authorized signatory of M/s Valley Agro Industries Limited, the petitioners have brought this petition under the provisions of section 482 Cr. P.C., for quashing of FIR No. 128 dated 11.9.2012 (Annexure P1) registered at Police Station Farrukh Nagar, District Gurgaon for an offence punishable under sections 7(1) and 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short, “the Act”) alongwith all the subsequent proceedings arising out of the same.

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Learned counsel for the petitioners has raised two points in the matter. The first is that the offence punishable under section 10 of the

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Crl. Misc. No.M-11774 of 2013

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Act stands attracted only when a person transfers or agrees to transfer plots in a colony or makes an advertisement or receives any amount in respect thereof. According to him, for attracting the penal clause of section 7 of the Act, the prosecution must prove that the accused had transferred or agreed to transfer plots in a colony. According to him, the word 'colony' stands defined in section 2(c) of the Act where it is said to mean an area of land divided or proposed to be divided into plots or flats for residential, commercial, industrial, cyber city or cyber park purposes. This definition clearly excludes an area of land divided or proposed to be divided for the purpose of agriculture.

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Learned counsel for the petitioner has submitted that in all, the land measuring 103 kanals 17-1/2 marlas has been sold vide 8 sale deeds. According to him, the smallest piece of land sold vide sale deed dated 5.7.2007 measures 6 kanals 4-1/2 marlas and the biggest piece of land sold vide sale deed dated 11.5.2007 measures 20 kanals. According to him, the sale of such bigger chunks of land would clearly prove that they were sold for purposes of agriculture and not for residential, commercial, industrial, cyber city or cyber park purposes.

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The second point raised by learned counsel for the petitioners is that the offence punishable under section 10 of the Act provides for penalty which is imprisonment of either description that may extend to 3 years and fine. According to him, under section 468 Cr.P.C., the period of limitation is 3 years if the offence is punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years. He has submitted that the last sale deed, as per the prosecution, executed by the petitioners is dated 5.7.2007. According to him, the FIR has been got registered only

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Crl. Misc. No.M-11774 of 2013

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on 11.9.2012 and, therefore, cognizance of the offence beyond limitation was barred. He has sought support from two decisions of this court for his submissions. They are reported as Nand Lal Vs. State of Haryana 1987 (2) R.C.R. (Criminal) 467 and Telu Ram Vs. State of Haryana 1994 (2) R.R.R. 665.

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In another case of M/s Usha Spinning & Weaving Mills Ltd. and others Vs. The Regional Provident Fund Commissioner, Faridabad, Criminal Misc. No. M-17576 of 2011, decided by this court on 19.3.2012 , though, the prosecution was under the Employees Provident Fund & Miscellaneous Provisions Act, 1952, yet the punishment provided for the offence was the same and it has been held that the prosecution is barred by limitation and, consequently, the order impugned therein was quashed.

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Learned State counsel, on the other hand, has submitted that the petitioners have sold land for residential, commercial, industrial purposes without obtaining license under section 3 of the Act. According to him, the authorities under the Act came to know of the sale deeds subsequently and so, lodging of the FIR became late.

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The plots of land sold vide 8 sale deeds starting from 27.4.2007 ending with sale deeds dated 5.7.2007 are of different areas. The difference in sizes is so great that it would show that these plots of land cannot make a colony. The sale deeds on the record, Annexure P1 and others also do not show that the property was sold for the prohibited purposes. The sizes of the plots also show that the sale in these cases cannot be for any purpose other than the agricultural purposes which

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Crl. Misc. No.M-11774 of 2013

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takes the carving out the plots in question out of the definition of the word 'colony'.

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As the punishment provided for the offence under section 10 of the Act is imprisonment of either description that may extend to three years, as per section 468 Cr.P.C., the limitation for taking cognizance of the said offence is 3 years from the date of commission of the offence. The last sale deed is dated 5.7.2007 and taking it straight, it appears that taking of cognizance of the offence on the FIR lodged on 11.9.2012 was barred by limitation.

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Though, learned State counsel has argued that the authorities under the Act came to know about the sale deeds late, yet no such plea appears in the FIR.

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The matter of limitation came up for hearing in the prosecution brought under the Act in Nand Lal and Telu Ram's cases (supra) . In those cases, challan was presented before the court after expiry of period of limitation prescribed under section 468 Cr.P.C. Here, the very FIR has been lodged after expiry of period of limitation as prescribed for the offence under section 468 Cr.P.C.

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Summing up my aforesaid discussion, I find that the given facts do not make out a prima facie case under section 10 of the Act. Moreover, taking cognizance of the offence on the date of lodging of the FIR was barred. In these circumstances, the FIR deserves to be quashed. Resultantly, the petition is allowed and FIR No.128 dated 11.9.2012 (Annexure P1) registered at Police Station Farrukh Nagar, District Gurgaon for an offence punishable under sections 7(1) and 10

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Crl. Misc. No.M-11774 of 2013

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of the Haryana Development and Regulation of Urban Areas Act, 1975 alongwith all the subsequent proceedings arising out of the same is

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quashed.

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(VIJENDER SINGH MALIK) JUDGE May 24^th , 2013 som

Anil Sharma and Anr. v. State of Haryana and Anr.

Case brief

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Anil Sharma and Anr. v. State of Haryana and Anr.

Case brief

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