Criminal Misc. No. M-652 of 2008 v. State of Punjab

Judgment

2. Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER

Present: Mr. Anmol Rattan Sidhu, Senior Advocate, with Mr. Rajesh Narang, Advocate, for the petitioner, in Criminal Misc. No. M-652 of 2009. Mr. O.P. Hoshiarpuri, Advocate, for the petitioner, in Criminal Misc. No. M-31461 of 2008. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. Mr. Saurabh Goel, Advocate, for respondent No. 2. SHAM SUNDER, J. This order shall dispose of Criminal Misc. No. M-652 of 2008 and Criminal Misc. No. M-31461 of 2008, under Section 482 Cr.P.C., for quashing complaint, under Section 36 read with Sections 3, 5, 8, 9, 14(2), 15, 18, Section 21 of Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be called as the Act only), and Section 120 IPC (Annexure P1), the summoning order dated 12.12.06 (Annexure P2), and the subsequent proceedings, arising therefrom, which have been filed by Sadhu Singh and Jaswinder Singh, petitioners.

2. The facts, in brief, are that, Sadhu Singh, accused- petitioner, was the owner of the land, bearing khasra No. 9//7/2, 8/2, 14/1, and, 15/1, situated in village Pholriwal, Tehsil and District Jalandhar. It was stated that Sadhu Singh, accused-petitioner, appointed Jaswinder Singh, accused-petitioner, as his general power Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 3 of attorney, and executed an agreement to sell, in his favour, in respect of the land, in dispute, and received the consideration amount on 12.12.02. It was further stated that the accused-petitioners, sold the aforesaid land, in small chunks, to various vendees, for residential and commercial purposes, in contravention of the provisions of Section 3 and 5 of the Act ibid, without obtaining licence from the competent authority. It was further stated that the accused, were not holding a certificate of registration, as Promoter. It was further stated that, even the accused, did not submit any application, as promoter, as required, under Section 21 of the Act ibid, for setting up the colony, by selling the land, in small chunks, for residential and commercial purposes. It was further stated that, the accused, thus, carried on the business of promoter and estate agent. It was further stated that the accused, set up the colony, as defined, under Section 2(1) of the Act, and contravened the provisions of Sections 3, 5, 8, 9, 14(2), 15, 18, and, 21 of the same. It was further stated that sanction for prosecution, was granted, by the competent authority, on 30.07.04, under Section 38 of the Act. Ultimately, a criminal complaint was filed.

3. The trial Court, after hearing the Counsel for the complainant, and, on going through the documents, on record, summoned the accused, for the offences, punishable under Sections 3, 5, 8, 9, 14(2), 15, 18, and 21 of the Act ibid, and, Section 120 IPC. Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 4

4. Feeling aggrieved, the instant petitions, have been filed by the accused-petitioners.

5. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.

6. The Counsel for Sadhu Singh, petitioner, submitted that, the petitioner, did not commit any offence. He further submitted that the petitioner, entered into agreement to sell 15 kanals of his land, in favour of Jaswinder Singh, after obtaining the sale consideration, from him, on 12.12.02. He further submitted that the land, in question, was agriculture. He further submitted that the petitioner, was neither the promoter, nor the colonizer, nor the agent, as defined, by Section 2(1)(y) of the Act. He further submitted that, if Jaswinder Singh, converted the land, into plots, and sold the same, Sadhu Singh, could not be held liable for the same. He further submitted that Sadhu Singh, petitioner, did not execute the agreement to sell, in respect of the sale of the land, measuring 15 kanals, in favour of Jaswinder Singh, for residential or commercial purposes.

7. The Counsel for Jaswinder Singh, petitioner, submitted that the land, was sold by Jaswinder Singh, as attorney of Sadhu Singh. He further submitted that it was only the principal, who was liable for the acts of his attorney. He further submitted that Jaswinder Singh, being attorney, did not violate any provision of the Act ibid, and, therefore, did not commit any offence. He further submitted that continuation of complaint, and the subsequent proceedings, will be a Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 5 sheer abuse of the process of the Court.

8. On the other hand, the Counsel for the respondents, submitted that, Sadhu Singh, executed the agreement to sell, as also the power of attorney, in favour of Jaswinder Singh, just with a view to circumvent the provisions of law. He further submitted that the intention to enter into agreement to sell, in favour of Jaswinder Singh, in respect of 15 kanals of land, and execute the power of attorney, was only to develop the same (land), into a colony, by carving out the plots. He further submitted that Sadhu Singh, also sold a plot, measuring 15 marlas 140 sq. ft., in favour of Kulwinder Singh son of S. Bhura Singh, vide sale deed dated 26.05.03 (copy whereof, is lying in Criminal Misc. No. M-31461 of 2008) for a sale consideration of Rs. 2,80,000/-, out of the land, comprising khasra No. 9//6/2, 7/2, 8/2, 14/1, and, 15/1, in respect whereof, agreement to sell, in favour of Jaswinder Singh, was executed. He further submitted that Jaswinder Singh, as attorney of Sadhu Singh, executed the sale deed dated 13.08.03, in favour of Bakhshish Singh son of Makhan Singh, in respect of a plot, measuring 4 marlas 37 sq. ft., for a sum of Rs. 75,000/-. He further submitted that Jaswinder Singh, vide sale deed dated 25.08.03, sold the land, measuring 15 marlas 60 sq. ft., out of the total land, measuring 15 kanals 60 sq. ft., in favour of Kewal Singh son of Kartar Singh, and, Jaswinder Singh son of Shingara Singh, in the sum of Rs. 2,75,000/-. He further submitted that Jaswinder Singh, vide sale deed dated Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 6

03.10.03, sold the land, measuring 15 marlas 140 sq ft., in favour of Narinder Kaur wife of Baldev Singh and Baldev Singh son of Jagir Singh, for a sum of Rs. 2,80,000/-, out of the land, in respect whereof, the agreement to sell, was executed, in his favour. He further submitted that Jaswinder Singh, vide sale deed dated

06.10.03, sold the land, measuring 25 marlas 200 sq ft., in favour of Dr. Swaran Singh Khaira son of Late S. Gardhara Singh and Paramjit Kaur wife of Dr. Swaran Singh Khaira, for a consideration of Rs. 4,65,000/-, out of the land, in respect whereof, the agreement to sell, was executed, in his favour. He further submitted that, Jaswinder Singh, vide sale deed dated 31.12.03, sold the land, measuring 07 marlas 206 sq ft., in favour of Bhupinder Gupta son of Baldev Krishan Gupta, for a sum of Rs. 1,40,000/-, out of the land, in respect whereof, the agreement to sell, was executed, in his favour. He further submitted that the sale of small plots of land, out of a big chunk of land, by Sadhu Singh and Jaswinder Singh, was only for residential purposes. He further submitted that, even the roads, had been laid, at the place, where the plots, had been carved out and sold, in favour of various vendees. He further submitted that both Sadhu Singh and Jaswinder Singh, committed the offences, punishable under Section 36 read with Sections 3, 5, 8, 9, 14(2), 15, 18, Section 21 of the Act. He further submitted that the Court, cannot take into consideration, the probable defence of the accused, at the time of deciding the petition, under Section 482 Cr.P.C. Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 7

9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petitions, are liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 8 Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations, made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 9 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudgent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 10 accused, and with a view to spite him due to private and personal grudge. 8)Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

10. The inherent powers, with which the Criminal Courts, are clothed, are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid cases, is applicable, to the same, or not. Sadhu Singh, admittedly was having a big chunk of land, measuring 15 kanals. He executed the agreement to sell, referred to above, in favour of Jaswinder Singh, as also power of attorney, in his favour. As stated above, Sadhu Singh, sold one plot of small size, whereas, Jaswinder Singh, sold as many as six plots of small sizes, referred to above, for residential purposes, in favour of various vendees. According to Section 2(1)(y) of the Act ibid, 'promoter' means the person:- Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 11 “(a) who constructs or causes to be constructed a building consisting of apartments, or, converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons, and includes his assigns; or (b) who develops land into a colony, whether or not he also constructs structures on any of the plots, for the purpose of selling to other persons, all or some of the plots, whether open or with structures thereon; and (c) where the person who constructs or converts a building or develops a colony and the person who sells apartments or plots are different persons, the term include both the them. Explanation – (1) Any development authority and any other public body so notified by the State Government are deemed to be promoter in respect of allottees of,- (i) buildings constructed by them on land owned by them or placed at their disposal by the State Government; or (ii) plots owned by them or placed at their disposal by the State Government; Explanation – (2) A person who acts as described in sub-clause (c) of clause (y) shall be deemed to be a promoter, even if,- (i) he styles himself as a builder, colonizer, contractor, developer, estate promoter or by any other name; or (ii) he claims to be acting as the holder of a power of attorney from the owner of the land on which the building is constructed or colony is developed; (z) “property” means the land, the Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 12 building, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, and includes every type of right and interest in land which a person can have to the exclusion of other persons, such as possession, use and enjoyment free from interference, disposition, franchises and hereditaments; and (za) “section” means a section of this Act.”

11. From the perusal of the definition of promoter, it is evident, that the person, who develops land into a colony, whether or not he also constructs structures on any of the plots, for the purpose of selling to other persons, all or some of the plots, whether open or with structures thereon, is a promoter. It is further evident, from the explanation, added to this Section, that a person, who claims to be acting as the holder of a power of attorney, from the owner of the land, on which the building is constructed or colony is developed, is equally liable. In the instant case, as stated above, the sale of small plots of few marlas, in favour of various vendees, by Sadhu Singh and Jaswinder Singh, his attorney, was only for residential purposes. These small plots, could not be used for agricultural purposes. It appears that, Sadhu Singh, by executing the agreement to sell and power of attorney, in favour of Jaswinder Singh, and then getting sold the land, through him (Jaswinder Singh), as his attorney, in the shape of small plots, only intended to set up the colony. Both of them, in connivance with each other, allegedly tried to circumvent the provisions of law, so as to escape the dragnet thereof. It is settled Criminal Misc. No. M-652 of 2008 Criminal Misc. No. M-31461 of 2008 13 principle of law, that the probable defence of the accused, is not required to be taken into consideration, at the time of deciding the petition, under Section 482 Cr.P.C. The allegations, contained in the complaint, filed by the complainant, prima-facie constituted the offences, punishable under Section 36 read with Sections 3, 5, 8, 9, 14(2), 15, 18, Section 21 of the Act, and Section 120 IPC. Continuation of complaint and the subsequent proceedings, arising therefrom, cannot, in any way, be held to be the sheer abuse of the process of the Court. The petitions, are, thus, liable to be dismissed.

12. For the reasons recorded above, Criminal Misc. No. M-652 of 2008, and, Criminal Misc. No. M-31461 of 2008, for quashing complaint, under Section 36 read with Sections 3, 5, 8, 9, 14(2), 15, 18, Section 21 of the Act, and Section 120 IPC (Annexure P1), the summoning order dated 12.12.06 (Annexure P2), and the subsequent proceedings, arising therefrom, being devoid of merit, must fail, and the same are dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

13. Copies of the order be sent to the concerned Courts.

01.02.2010 Amodh (SHAM SUNDER) JUDGE