Punjab-Haryana High CourtHarneet Kaur vs State Of Haryana And Anr on 25 April, 2022Author:Jasjit Singh BediBench:Jasjit Singh BediCRM-M-45483-2017                                            #1#\n\n        IN THE HIGH COURT OF PUNJAB & HARYANA AT\n                      CHANDIGARH.\n\n\n                                                          CRM-M-45483-2017\n\n                                                 Date of Decision:-25.04.2022\n\nHarneet Kaur.\n\n                                                                    ......Petitioner.\n\n                                    Versus\n\nState of Haryana & Anr.\n\n                                                                 ......Respondents.\n\nCORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI\n\nPresent:-   Mr. Manmohan Saroop, Advocate for the Petitioner.\n\n            Mr. Vikrant Pamboo, Deputy Advocate General, Haryana.\n\n                                 ***\n\nJASJIT SINGH BEDI, J.The prayer in this petition underSection 482Cr.PC is for\n\nquashing of FIR No.561 dated 29.09.2016 underSection 10of Haryana\n\nDevelopment and Regulations of Urban Areas Act, 1975 registered at Police\n\nStation Sadar, Thanesar, District Kurukshetra along with all consequential\n\nproceedings emanating therefrom.2.          The brief facts of the case are that petitioner was the owner in\n\npossession of agricultural land measuring 09 Kanal 4 Marlas, situated\n\nwithin the revenue estate of village Bajidpur, Tehsil Thanesar, District\n\nKurukshetra. The petitioner had sold this land to 04 persons namely Sh.\n\nGagan Chawla, Rakesh Kumar, Sh. Mata Ram and Smt. Renu. The vendees\n\npurchased this land jointly for a total sale consideration of Rs.28,75,000/-\n\n(Rs.28 lacs 75 thousand) vide a registered sale deed no.1220 dated\n\n\n                                       1 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #2#\n\n28.04.2011.3.            Much after the execution of this sale deed the respondent no.2\n\nallegedly sent a back dated letter dated 28.09.2016 to the Superintendent of\n\nPolice, Kurukshetra requesting therein to register an FIR under Section 10\n\nof the Haryana Development and Regulations of Urban Act, 1975 against\n\nthe petitoner. Acting on the complaint of respondent no.2 an FIR bearing\n\nNo.561 dated 29.09.2016 underSection 10of Haryana Development and\n\nRegulations of Urban Areas Act, 1975 at Police Station Sadar, Thanesar,\n\nDistrict Kurukshetra was registered against the petitioner.       As per the\n\npetitioner the police registered the FIR without conducting an enquiry into\n\nthe matter and without conducting any fair investigation presented the\n\nchallan against the petitioner on dated 17.08.2017 and based on the report\n\nunderSection 173Cr.PC charges came to be framed against the petitioner\n\n(Annexure P-4).4.            The contention of the petitioner is that she has not committed\n\nany offence as alleged in the FIR. She has not carved out any plot or\n\ndivided the land into plots for residential/industrial/commercial purposes.\n\nThat being the position, no question of obtaining the licence underSection 3of the Haryana Development and Regulations of Urban Areas Act, 1975\n\nwould arise. Since the petitioner had sold the agricultural land in the name\n\nof four persons jointly, it cannot be said that the land had been sold in the\n\nshape of plots. Further in the sale deed nowhere was it mentioned as to\n\nwhich area had been sold to which buyer. He further contended that there\n\nwas delay of more than five years in lodging the FIR against the petitioner.\n\nThe sale deed was executed on 28.04.2011.             The authorities had the\n\nknowledge of the offence having been allegedly committed on\n\n\n\n                                      2 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                             #3#\n\n01.12.2011/13.12.2011 but the FIR came to be registered only on\n\n29.09.2016. The report underSection 173Cr.PC came to be submitted on\n\n17.08.2017. He thus contended that the registration of the FIR was barred\n\nby limitation and court could not have taken cognizance of the same.5.          The learned Counsel for the respondent-State has filed a reply\n\ndated 10.05.2018. As per para 4 of the said reply the contention of the State\n\nis that the sale deed had been executed in favour of four persons who were\n\nnot related to each other and, therefore, though ostensibly the land was sold\n\njointly, but in reality she had sold the land/plots to them separately but in a\n\nclandestine manner. The sale deed was registered jointly in their names just\n\nto circumvent the provisions of theHUDA Act. Thus she had contravened\n\nthe provisions of Clause 7(i) of the said Act. It was further contended that it\n\nwas only when the matter came to the knowledge of the respondent, that\n\ninformation was supplied to the police and, therefore, there was no delay on\n\nthe part of the respondent no.2.6.          I have heard counsel for both the parties at length.7.          Before proceeding in the matter, it would be necessary to\n\nexamine the relevant extracts ofSection3,Section 7(i)andSection 10of the\n\nAct which are reproduced hereinbelow:-"Section 3. Application for licence (1) Any owner\n      desiring to convert his land into a colony shall, unless\n      exempted underSection 9, make an application to the Director,\n      for the grant of licence to develop a colony in the prescribed\n      form and pay for it such fee and conversion charges as may be\n      prescribed.Section 7. Prohibition to advertise and transfer plots:-Save as provided inSection 9, no person including a property\n      dealer shall:-(i)    without obtaining a licence underSection 3, transfer or\n\n                                       3 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #4#agree to transfer in any manner plots in a colony or make an\n     advertisement or receive any amount in respect thereof;(ii)    erect or re-erect any building in any colony in respect of\n     which a licence underSection3, has not been granted.(iii)   erect or re-erect any building other than for purposes of\n     agriculture on the land sub-divided for agriculture as defined\n     in clause (aa) ofSection 2of this Act.Section 7A. Registration of certain documents ( as applicable\n     on the date of registration of sale deed by the petitioner):-Notwithstanding anything contained in any other law for the\n     time being in force, where any document is required to be\n     registered under the provisions ofSection 17of Indian\n     Registration Act, 1908, purporting to transfer by way of sale or\n     lease any vacant land having an area of less than one hectare\n     in an urban area as may be notified specifically by the\n     government from time to time for the purposes of this Section,\n     no Registration Officer appointed under the above said Act\n     shall register any such document unless the transferor\n     produces before such Registration Officer a no-objection\n     certificate issued by the Director or an office authorized by\n     him in writing in this behalf, to the effect that the said\n     transfer does not contravene any of the provisions of this Act\n     and its rules and such no objection certificate shall be issued,\n     within ninety days of the date of receipt of the application for\n     the same provided that-(a)     if the area of vacant land, which is proposed to be\n     transferred does not exceed one thousand square meters, the\n     above said no objection certificate shall be issued within thirty\n     days of the date of receipt of application by the Director,\n     where-(i)     the land is situated in a colony for which a license has\n     been issued under Section 3 of this Act, or(ii)    the transfer proposed is as a result of family partition, in\n     inheritance, succession or partition of joint holdings not with\n     the motive of earning profit, or\n\n\n                                      4 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #5#(iii)   the transfer is in furtherance of any scheme sanctioned\n     under any law;(b)     if the above said application for grant of no objection\n     certificate submitted to the Director or an office authorized by\n     him in writing in this behalf is not disposed off through an\n     order in writing within the prescribed period of ninety days or\n     thirty days as described in this section, the no objection\n     certificate shall be deemed to have been granted;(c)     all applications for grant of no objection certificate shall\n     be accompanied by the following documents:(i)     title of land\n     (ii)    draft copy of registration deed(iii)   an affidavit to be effect that the site is covered under this\n     Section, if the area of the land does not exceed one thousand\n     square meters.Section 10-Penalties (1) any person who contravenes any of\n     the provisions of this Act or the rules made thereunder or any\n     of the conditions of a licence granted undersection 3shall be\n     punishable with imprisonment of either description for a\n     term which may extend to three years and shall also be liable\n     to fine:Provided that where any of the provisions ofsection 9are\n     contravened, the punishment of imprisonment shall not exceed\n     six months.(2)     Without prejudice to the provisions of sub-section (1),\n     the Director or any other officer authorized in writing by him\n     in this behalf may, by notice, served by post and if a person\n     avoids service, or is not available for service of notice, or\n     refuses to accept service, then by affixing a copy of it on the\n     outer door or some other conspicuous part of such premises,\n     or i n such other manner as may be prescribed, call upon any\n     person who has committed a breach of the provisions referred\n     to in the said sub-section to stop further construction and to\n     appear and show cause why he should not be ordered to\n     restore to its original state or to bring it in conformity with the\n\n\n                                      5 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #6#\n\n     provisions of this Act or the rules framed thereunder, as the\n     case may be, any building or land in respect of which a\n     contravention such as is described in the said sub-section has\n     been committed and if such person fails to show cause to the\n     satisfaction of the Director or such authorized officer within a\n     period of seven days, the Director or such authorized officer\n     may pass an order requiring him to restore such land or\n     building to its original state or to bring it in conformity with\n     the provisions of this Act or the rules framed thereunder, as the\n     case may be, within a further period of seven days.(3)    If the order made under sub-section (2) is not carried\n     out within the specified period, the Director, or any other\n     officer authorized in writing by him in this behalf may, himself\n     at the expiry of the specified period, take such measures, as\n     may appear necessary to give effect to the order and the cost of\n     such measure shall , if effect to the order and the cost of such\n     measure shall, if not paid on demand being made to him, be\n     recoverable from such person as arrears of land revenue :Provided that even before the expiry of the period mentioned in\n     the order under sub-section (2),if the Director or such\n     authorized officer is satisfied that instead of stopping the\n     construction, the person continues with the contravention, the\n     Director or such authorized officer may himself take such\n     measures, as may appear necessary,to give effect to the order\n     and the cost of such measures shall, if not paid on demand\n     being made to him, be recoverable from such person as\n     arrears of land revenue."Section 468Cr.PC is also reproduced herein below:-" i)   Except as otherwise provided elsewhere in this Code, no\n     Court, shall take cognizance of an offence of the category\n     specified in Sub-Section (2), after the expiry of the period of\n     limitation.ii)    The period of limitation shall be--\n            a)     six months, if the offence is punishable with fine\n\n\n                                      6 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                                #7#\n\n             only;\n             b)      one year, if the offence is punishable withimprisonment for a term not exceeding one year;c)      Three years, if the offence is punishable with\n             imprisonment for a term exceeding one year but not\n             exceeding three years.iii)   For the purposes of this section, the period of limitation,\n      in relation to offences which may be tried together, shall be\n      determined with reference to the offence which is punishable\n      with the more severe punishment or, as the case may be, the\n      most severe punishment.8.           The relevant judgments of this court in this regard are\n\nreproduced hereinbelow:-InMahipal Vs. State of Haryana2018(2) RCR (Criminal) 5 it\n\nwas held as under:-"      After hearing counsel for the parties, I find merit in the\n      submissions made by counsel for the petitioners. The District\n      Town Planner, Kaithal vide its letter dated 15.02.2012 has\n      reported the matter to the Superintendent of Police, Kaithal\n      with a clear averment that the petitioners/accused, by way of\n      sub-dividing       his   lands     into     plots   for      residential,\n      industrial/commercial purpose without obtaining a licence\n      from the Director General, Town and Country Planning\n      Haryana, Chandigarh as required underSection 3of the\n      Haryana Development and Regulation of Urban Area Act,\n      1975, has contravened the provisions ofSection 7of the Act\n      which constitutes an offence punishable underSection 10of\n      the Act. Therefore, it was reported by the District Town\n      Planner, Kaithal on 15.02.2012 that the petitioners have\n      committed an offence prior to 15.02.2012. The FIR was\n      registered on 25.06.2015 on the basis of this very letter and\n      later on, the report underSection 173Cr.P.C. was submitted\n      on 25.01.2017 and only thereafter, the cognizance was taken\n\n\n                                        7 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #8#\n\n      by the trial Court. The arguments raised by counsel for the\n      State that it is a continuing offence within the meaning ofSection 472Cr.P.C. and, therefore, a fresh period of limitation\n      shall begin to run at every moment of time during which the\n      offence continues, in my opinion will not apply in the present\n      case as the nature of the offence do not make it a continuing\n      offence.InAnil Sharma & Anr. Vs. State of Haryana & Anr.2013(16)\n\nRCR (Criminal) 83 it was held as under:-"     As the punishment provided for the offence undersection\n      10of the Act is imprisonment of either description that may\n      extend to three years, as persection 468Cr.P.C., the limitation\n      for taking cognizance of the said offence is 3 years from the\n      date of commission of the offence. The last sale deed is dated\n      5.7.2007 and taking it straight, it appears that taking of\n      cognizance of the offence on the FIR lodged on 11.9.2012 was\n      barred by limitation.Though, learned State counsel has argued that the\n      authorities under the Act came to know about the sale deeds\n      late, yet no such plea appears in the FIR.The matter of limitation came up for hearing in the\n      prosecution brought under the Act in Nand Lal and Telu Ram's\n      cases (supra). In those cases, challan was presented before the\n      court after expiry of period of limitation prescribed under\n      section 468 Cr.P.C. Here, the very FIR has been lodged after\n      expiry of period of limitation as prescribed for the offence\n      under section 468 Cr.P.C.Summing up my aforesaid discussion, I find that the\n      given facts do not make out a prima facie case undersection\n      10of the Act. Moreover, taking cognizance of the offence on\n      the date of lodging of the FIR was barred. In these\n      circumstances, the FIR deserves to be quashed. Resultantly,\n      the petition is allowed and FIR No.128 dated 11.9.2012\n      (Annexure P1) registered at Police Station Farrukh Nagar,\n\n\n                                      8 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                             #9#\n\n      District Gurgaon for an offence punishable undersections 7(1)and10of the Haryana Development and Regulation of Urban\n      Areas Act, 1975 alongwith all the subsequent proceedings\n      arising out of the same is quashed.InJanak Raj Vs. State of Haryana2002(4) RCR (Criminal)\n\n248 it was held as under:-"     Any contravention of the provisions of the Act is\n      punishable underSection 10of the said Act.            It has been\n      provided therein that any person, who contravenes any of the\n      provisions of this Act or the Rules made thereunder or any of\n      the conditions of a licence granted underSection 3shall be\n      punishable with imprisonment of either description for a term\n      which may extend to three years and shall also be liable to\n      fine. Asreferred to above, the FIR in question was registered\n      on 08.11.1983 on the basis of letter dated 08.07.1983, received\n      from the District Town Planner, Ambala. Along with said\n      letter, list of sale transactions was attached              by way of\n      annexure. As per the said list, sale transactions had taken\n      place on 7.9.1982. If the District Town Planner had sent letter\n      dated 8.7.1983 to the police for the registration of the FIR on\n      account of violation of the provisions of the Act, it can be\n      presumed that the authorities had come to know about the\n      alleged contravention on 8.7.1983. Police had registered the\n      FIR on 8.11.1983.      It is admitted case of the parties that the\n      challan was submitted in the Court on 11.11.1986 i.e. more\n      than three years after the registration of the formal FIR on\n      08.11.1983.UnderSection 468(1)Criminal Procedure Code it has\n      been provided that no court shall take congnizance of an\n      offence of the category specified under sub-section (2) after the\n      expiry of period of limitation. As per sub-section (2) of Section\n      468, period of limitation shall be (a) 6 months if the offence is\n      punishable with fine       only; (b) one year if the offence is\n      punishable with imprisonment for a term not exceeding one\n\n\n                                       9 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #10#\n\n     year; and (c) three years if the offence is punsiable with\n     imprisonment for a term exceeding one year but not exceeding\n     three years. UnderSection 469Criminal Procedure Code, it is\n     provided that period of limitation in relation to an offender\n     shall commence (a) on the date of offence; or (b) where the\n     commission of the offence was not known to the person\n     aggrieved by the offence or to any police officer, the first day\n     on which such offence comes to the knowledge of such person\n     or to any police officer, whichever is earlier; or (c) where it is\n     not known by whom the offence was committed, the first day\n     on which the identity of the offender is known to the person\n     aggrieved by the offence or to the police officer making\n     investigation into the offence, whichever is earlier.Section\n     473Criminal Procedure Code, provides for extension of\n     period of limitation in certain cases. It has been provided that\n     any court may take cognizance of an offence after the expiry of\n     the period of limitation, if it is satisfied on the facts and in the\n     circumstances of the case that the delay has been properly\n     explained or that it is necessary so to do in the interest of\n     justice.In the present case, asreferred to above, the maximum\n     period of punishment provided underSection 10of the Act is\n     three years. That being so, the limitation for the Court to take\n     cognizance of the offence shall be three years, from the date\n     when the commission of offence was known to the person\n     aggrieved i.e. District Town Planner. Asreferred to above,\n     District Town Planner had informed the police, vide letter\n     dated 8.7.1993 about the alleged offence having been\n     committed by the accused.          Police registered the FIR on\n     8.11.1983. Thereafter, police took more than three years in\n     investigating the case and it was only on 11.11.1986 that the\n     challan was submitted in the court. It was thereafter, that the\n     court took cognizance of the offence.          There is absolutely\n     nothing on record to show that while submitting the challan,\n     police had explained the delay in any manner, whatsoever.10 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                                    #11#That being the position, in my opinion, the court was not\n      competent to take cognizance of the offence or to serve the\n      notice      of     accusation     upon        the   accused     petitioner.\n      Furthermore, when the accused petitioner moved application\n      before the learned Magistrate for his discharge, on the ground\n      that the case was barred by time, learned Magistrate dismissed\n      the said application on 09.08.1997, copy Annexure P-2, on the\n      ground that notice of accusation had already been served upon\n      him. In my opinion, continuation of the proceedings against\n      the accused petitioner would be abuse of the process of law,\n      especially when on the face of it, challan submitted in the court\n      was beyond the period of limitation and the court had no\n      jurisdiction to take cognizance of the said offence.InTelu Ram Vs. State of Haryana1994(2) RRR 665 it was\n\nheld as under:-"        It is not denied that the petitioners sold two plots of land\n      each measuring one bigha to Ashok Kumar and Kaushalya\n      Devi vide two separate sale deeds dated 15.06.1987. The case\n      was got registered against the petitioners on 25.12.1990 i.e.,\n      after a period of three years, and challan was presented in\n      court on 11.06.1991. Maximum sentence provided under the\n      Act is three years and so also the period of limitation for\n      launching prosecution of three years underSection 468of\n      Criminal Procedure Code. The case was thus registered and\n      challan was presented in court after the period of limitation.\n      It was argued on behalf of the respondent that the period of\n      limitation in this case did not commence on the date of offence\n      rather it commenced on 29.07.1989 when the commission of\n      the offence came to the knowledge of the Field Investigator.\n      He referred to Section 469 of the Code which relates to the\n      commencement of the period of limitation. Clause (b) of Sub\n      Section of this Section provides that period of limitation in\n      relation to an offender, shall commence where the commission\n      of the offence was known to the person aggrieved by the\n\n\n                                         11 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #12#\n\n      offence or to any police officer, the first day on which such\n      offence comes to the knowledge of such person or to any police\n      officer, whichever is earlier. I am however, of the view that\n      provisions of Section 469 are not applicable to the facts of this\n      case because it was nowhere alleged by the Field Officer that\n      commission of offence had not come to his knowledge prior to\n      the day when he gave information to the police. In fact the\n      transfer was effected vide registered documents.In the\n      absence of any averment to the effect it cannot be presumed\n      that commission of offence was not known to the person who\n      gave information to the police. In this case, FIR was lodged\n      after the expiry of period of limitation and when the court took\n      cognizance      of the offence delay was not condoned under\n      Section 473 of the Code. In these circumstances the trial is\n      vitiated.Nand Lal v. State of Haryana, 1987(2) RCR 467 is\n      an authority on this point.InRam Chander Vs. State of Haryana1994(2) R.R.R. 663 it\n\nwas held as under:-"     Ram Chander and his son Dushayant Kumar residents of\n      Gurgaon owned agricultural land in Khewat No.126, Khata\n      No.172, Killa No.13 totalling 18 Kanals 5 Marlas. However,\n      out of this they sold 4 Kanals 2 Marlas agricultural land to\n      Israil son of Issaq and Asar Khan son of Amin Khan on\n      17.09.1987. However, on 22.09.1990 the present FIR has been\n      registered underSection 10of the Haryana Development and\n      Regulation of Urban Area Act, 1975. The present petition has\n      been moved underSection            482Cr.PC of theCriminal\n      Procedure Codealleging that since the challan has not been\n      presented within a period of 3 years the FIR is liable to be\n      quashed because it is now barred by virtue ofSection 468of\n      the Criminal Procedure Code.              In this case, the factual\n      position that the sale was made on 17.09.1987 and the FIR was\n      registered on 22.09.1990, is undisputed. It has also not been\n      controverted in para 9 of the reply filed by the District Town\n\n\n                                     12 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #13#\n\n      Planner Enforcement, Faridabad, dated 29.07.1991.InState of Punjab v. Sarwan Singh, AIR 1981 Supreme\n      Court 1054, it was observed that the objection of putting a bar\n      of limitation on prosecution was clearly to prevent the parties\n      from filing cases after a long time.InNand Lal v. State of\n      Haryana, 1987(2) RCR 467, prosecution after expiry of the\n      period of limitation underSection 10of the Haryana\n      Development and Regulation of Urban Areas Act, 1975, was\n      disliked.   Consequently, the present petition moved underSection 482of the Criminal Procedure Code, succeeds and the\n      FIR in question is hereby quashed.Petition allowed. "12.         A perusal of theSection 10of the HUDA Act would show that\n\nthe maximum sentence is three years and in terms ofSection 468Cr.PC the\n\nlimitation period for taking cognizance is also three years.13.         In the present case the sale deed was executed on 28.04.2011\n\n(Annexure P-2). A perusal of the FIR would reveal that a show cause\n\nnotice was issued to the petitioner on 01.12.2011/13.12.2011.              Quite\n\ninterestingly a communication dated 23.02.2012 was sent by the DTP,\n\nKurukshetra to Superintendent of Police, Kurukshetra               on 28.09.2016\n\nleading to the registration of the FIR on 29.09.2016 (page 44 of the paper\n\nbook). The challan in the present case was submitted on 17.08.2017. A\n\nperusal of the dates as enumerated hereinabove would show that the\n\nrespondent no.2 was aware of the alleged offence, if any, on\n\n01.12.2011/13.12.2011 and, therefore, the court could have taken\n\ncognizance within three years of that date i.e. 01.12.2014/13.12.2014.\n\nTherefore, in the present case the report underSection 173Cr.PC was\n\nsubmitted on 17.08.2017 i.e. almost after 06 years of the discovery of the\n\noffence on 01.12.2011/13.12.2011. Thus, the court could clearly not have\n\n\n                                     13 of 14::: Downloaded on - 26-04-2022 03:38:53 :::CRM-M-45483-2017                                            #14#\n\ntaken cognizance beyond the period of limitation prescribed underSection\n\n468Cr.PC as has been pointed out in various judgments (supra).In view of the aforesaid settled legal position, the present\n\npetition is allowed and the FIR No.561 dated 29.09.2016 underSection 10of Haryana Development and Regulations of Urban Areas Act, 1975\n\nregistered at Police Station Sadar, Thanesar, District Kurukshetra along\n\nwith all consequential proceedings emanating therefrom are hereby\n\nquashed.( JASJIT SINGH BEDI )\n                                                     JUDGE\nApril 25, 2022\nVinay\n        Whether speaking/reasoned                    Yes/No\n        Whether reportable                           Yes/No\n\n\n\n\n                                     14 of 14::: Downloaded on - 26-04-2022 03:38:53 :::