Punjab-Haryana High Court
Kirpal Singh And Others vs State Of Punjab And Others on 26 March, 2009
Author: Rajive Bhalla
Bench: Rajive Bhalla
Criminal Misc. No. M-24169 of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. M-24169 of 2003
Date of decision:26.03.2009
Kirpal Singh and others ......Petitioners
Versus
State of Punjab and others .....Respondents
BEFORE: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. P.S.Hundal,Sr. Advocate with
Mr. P.S.Hundal, Advocate
for the petitioners.
Mr. C.S.Brar, DAG, Punjab
for respondents no. 1, 3 and 4.
Mr. Harit Sharma, Advocate
for respondent no. 2.
Rajive Bhalla,J.(Oral)
Prayer in this petition filed under Section 482 of the Code of Criminal Procedure, is for quashing of FIR No. 10, dated 14.01.2003, registered under Section 36 of the Punjab Apartment and Property Regulation Act,1995(hereinafter referred to as the Act), at Police Station Kharar, District Ropar.
Counsel for the petitioners submits that the petitioners were joint owners of agricultural land measuring 12 Kanals and 7 marlas bearing Khewat No.213/2570 Khatauni No. 227/2837 Khasra Nos.25//8/2, 7/2, 13/2, 14, 17/2/1, 27 and 733/1 in the revenue estate of Kharar H.B.No.184, District Ropar for the year 1996-97. As Criminal Misc. No. M-24169 of 2003 2 per the Jamabandi, Petitioners no. 1 and 2 were joint owners of 1/4th share, whereas petitioners no. 3 to 5 were joint owners of the remaining 3/4th share. The petitioners have sold land, out of their individual shares, by separate and distinct sale deeds. The land sold by each petitioner does not exceed one thousand square meters. However, the respondents, by adding the land sold by one petitioner to the land sold by the other petitioners allege that the petitioners have sold more than one thousand square meters and are therefore, liable to be prosecuted under the aforementioned act. It is submitted that the sale of land by a co-sharer cannot be clubbed with a separate sale of land by other co-sharers so as to allege the commission of an offence. A sale by a co-sharer is to be calculated separately 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) and Dilbagh Rai and others vs. The State of Haryana reported as 1984 C.C.Cases 499(HC), and also 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 and counsel for respondent no. 2 submit that as the petitioners are co-sharers of un-divided land, sale of land by the petitioners without partition of the joint land, would have to be clubbed and in case the total land sold exceeds one thousand square metres, the petitioners would be guilty of commission of an offence for violating sections 3, 6, 5(i), 9 and 21(1) of the Act and therefore, liable to be prosecuted under Section 36 thereof.
I have heard counsel for the parties and perused the FIR. Admittedly, the petitioners were co-sharers in land measuring 12 Kanals and 7 marlas. The petitioners have executed separate sale deeds, out of their individual share holdings. It is not denied, by the Criminal Misc. No. M-24169 of 2003 3 respondents, that the total land sold by each petitioner separately does not exceed one thousand square metres. It is however, alleged by the respondents that as the petitioners are owners of undivided shares, in joint property, their separate sale deeds would have to be clubbed together to calculate the extent of land sold by them. As the petitioners have sold land in excess of one thousand square metres, without complying with the provisions of the Act, they would be required to face 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 petitioners have not sold land beyond the permissible limit of one thousand square metres. They are being prosecuted by including the land sold by one co-sharer with the land sold by the other co-sharer. While considering whether the land sold by one co-sharer can be included in the land of the other co-sharers, 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 Criminal Misc. No. M-24169 of 2003 4 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
(ii) as a result of family partition,
inheritance, succession or
partition of joint holdings 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 petitioners 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 petitioners.Criminal Misc. No. M-24169 of 2003 5
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 Baljeet Singh and another vs. State of Haryana reported as 1994(2)R.R.R.664.
The aforesaid contention of the petitioners was refuted by the learned counsel for the respondents 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 petitioners have 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 definition of "colony" as defined under Section 2(c) of the Criminal Misc. No. M-24169 of 2003 6 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 .
At this stage a reference to the extent of land sold by each petitioner would be appropriate. Kirpal Singh has sold 252.93 square metres, Harjit Singh has sold 265.57 square metres, Rajinder Singh has sold 543.79 square metres, Manmohan Singh has sold 982.12 square metres and Devinder Singh has sold 404.68 square metres by separate sale deeds. It is therefore, apparent that the petitioners have individually sold land within the prescribed limit of the one thousand square metres and therefore, have not committed any offence that would invite their prosecution under Section 36 of the Act. It is a settled position in law that where the FIR does not disclose the commission of any offence , the High Court would be within its power to quash such an FIR.
For the aforestated reasons, this petition is allowed and the FIR NO. 10, dated 14.01.2003, registered under Sections 36 of the Punjab Apartment and Property Regulation Act,1995(hereinafter referred to as the Act), at Police Station Kharar, District Ropar and all consequential proceedings arising therefrom are quashed.
[RAJIVE BHALLA] JUDGE 26th March, 2009 SKaushik