Vikas House Building Company (P) Ltd. Versus State of Punjab & Anr & Ors. v. Dharampal Seth
Case at a glance
- Decided
- 19 Aug 2010
- Bench
- GURDEV SINGH
Provisions considered
Key paragraphs
- Para 99. Accounts of sums taken by promoters:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots; as advance, towards sale price or for any other purpose…
Judgment
Procedure (hereinafter referred to as the 'Code') for quashing FIR No. 22 dated 5.2.2005, registered under Sections 3, 6, 9, 15 and 36 of the Punjab Apartment and Property Regulation Act, 1995, in Police Station Haibowal, Ludhiana and all the consequential proceedings. This FIR was got registered by Jaswant Singh- complainant, Assistant Engineer Office of Chief Administrator PUDA Ludhiana, by Crl. Misc. No. M – 7827 of 2008 (O&M) -2- moving an application No. 713 – B dated 14.1.2005, which was received in the police station through S.S.P. Ludhiana. He has stated in that application that it came to the notice of his office that M/s Vikas House Building Company (P) Ltd, through the present petitioner, converted its land comprised Khasra Nos. 32//23/2, 24,40//3/1,4/1 situated at village Ayali Khurd, Tehsil and District Ludhiana, into plots and has constructed an unauthorised colony in violation of the provisions of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter referred to as the 'Act'), as he did not obtain registration certificate as promoter as required under Section 21 of the Act and that he did not obtain any licence under Section 5 of the Act for converting the land into Colony.
He also stated therein that this fact came to his knowledge when the field staff of his office submitted the copies of Jamabandi, AKS Shajra, Site plan, report of the spot and mutation entries. The details of the areas of the plot and to whom those were sold have also been given in the FIR. According to the complainant there was violation of the provisions of Section 2(I), 3, 5, 21 and 36 of the Act. After conducting a thorough investigation the challan was presented against the petitioner for his having committed offences under Section 3, 6, 9, 36 and 56 of the Act. The petitioner has pleaded in the petition that this FIR arises out of the inspection report dated 11.12.2004 filed by Assistant/Junior Engineer of the Office of the complainant. The land alleged to have sold to Varinder Kumar falls within the licensed Colony for which Promoter Licence No. Crl. Misc. No. M – 7827 of 2008 (O&M) -3- 98/34 dated 29.4.1998 has already been granted.
The other sale deeds were executed in favour of one family and that too for agricultural purposes and as such those transfers are exempted from the application of the Act. The challan itself has been filed after more than four years of the date of the last sale deed, which is 27.4.2010,. Therefore, the proceedings under Section 3 and 15 of the Act against him are clearly barred by Section 468 of the Code. It cannot be said from the contents of the FIR that any other offence is made out against him. Moreover, no sanction was granted by the competent authority for his prosecution. On notice of motion having been issued the respondents appeared through their counsel. The replies were filed by them. It has been stated in the reply of respondent No.1 that the petitioner sold area of more than 1000 Sq. yards to different persons vide different sale deeds without the requisite permission of the competent authority thereby violating the provisions of the Act.
The facts as stated in the FIR were duly investigated and those are found to be having substance and thereafter the report was submitted against the petitioner under Section 173 of the Code. The sanction for the prosecution of the petitioner was sought from the competent authority and was obtained on 6.2.2006. It was only after that sanction that the said report was submitted in the Court. It is to be seen by the trial Court at the time of framing of the charge whether there is any bar of limitation under Section 468 of the Code. It has been pleaded by respondent No.2 in his reply that the petitioner is habitual offender and number of FIRs have already been Crl. Misc. No. M – 7827 of 2008 (O&M) -4- registered against him for similar offences. The land comprised in the khasra numbers mentioned in the FIR was sold by the petitioner vide different sale deeds, after carving out the plots and without obtaining any sanction, from 23.11.1999 to 27.4.2000. The execution of those sale deeds came to the notice of the authorities on the basis of the report dated
11.12.2004 made by the Assistant Engineer and immediately thereafter the FIR was got registered. The sanction under Section 38(1) of the Act was duly obtained before the presentment of the Challan in the Court. The limitation of three years is not applicable in the present case as the petitioner is being prosecuted for the other offences also, which are punishable with more than three years of imprisonment. Moreover, the offences are continuing one and the limitation has no application. In addition to that the time spent for obtaining sanction is to be execluded while computing the period of limitation. The protection as provided under Section 470(3) and 473 of the Code is available to him. The delay is not material as the Court has wide power to condone the delay. I have heard learned counsel for the parties. It has been submitted by learned counsel for the petitioner that it cannot be said that any offence under Sections 6, 9 and 36 of the Act is made out against the petitioner from the contents of the FIR. All other offences are punishable with less then three years of imprisonment and as such the Magistrate cannot take cognizance of offence after the expiry of three years. That period had already expired before the registration of the FIR itself and, therefore, the FIR is liable to be quashed on that ground Crl. Misc. No. M – 7827 of 2008 (O&M) -5- itself. He also submitted that the sale deeds mentioned in the FIR are registered documents and the notice to the complainant is to be attributed from the date of registration of the last such sale deed. He further contended that no application has been moved by the prosecution, along with the challan, for condoning the delay and in the absence of such a prayer the delay cannot be condoned. On the other hand, it has been submitted by learned counsel for the respondents that the commission of the offences by the petitioner came to the knowledge of the complainant only after the report was made to him by the field staff and other documents were produced before him. That report which has been made a part of the challan itself, was made on
11.12.2004. The FIR was got registered immediately thereafter. Therefore, it cannot be said that the FIR and the challan were filed after the period of limitation. He also contended that there is violation of the provisions of Section 9 of the Act by the petitioner which constitutes offence punishable under Section 36(2) and the same is punishable with imprisonment, which may extent to five years. It cannot be said from the contents of the FIR that there is any such violation of Section 9 of the Act. That Section reads as under:-
Accounts of sums taken by promoters:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots; as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards Crl. Misc. No. M – 7827 of 2008 (O&M) -6- the share capital for the formation of a co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, charge for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purpose for which they were, given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilise for any other purpose the amounts so collected for a particular purpose.” It is not the case of the complainant that the petitioner had not been maintaining any such accounts or that he withheld the money of any person and failed to disburse the money as required by that Section or that he had not been making full and true disclosures of his transactions in respect of those accounts.
The definition of “Promoter” contained in Section 2 (Y) of the Act is as under:- (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 or selling all or Crl. Misc. No. M – 7827 of 2008 (O&M) -7- 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 persons 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 of them. As the complainant had contended that the petitioner developed a colony, so for arguments sake it is to be assumed that he was a promoter.
In that eventuality it can be said that, from the allegations made against him in the FIR, he committed the offence punishable under Section 36(1) of the Act, for having violated the provisions of Sections 3, 6 and 15. All those offences are punishable with imprisonment which may extend to three years. Thus according to Section 468 of the Code the period of limitation prescribed for taken cognizance of these offences is three years. That period of three years is to be computed from the date of commission of the offence and where that commission of the offence was not in the knowledge of the complainant, from the date he came to know about the commission thereof. Therefore, it is to be seen as to on which date the complainant came to know about the commission of the offences by the petitioner. It has Crl. Misc. No. M – 7827 of 2008 (O&M) -8- been averred in the FIR that the complainant came to know about the commission of the offences when the field staff of his office submitted copies of jamabandi, AKS Shajra, Site plan and entries of mutation.
It is not mentioned therein that as to on which date that act was done by the field staff. While deciding the said question this Court is to confine itself to the contents of the FIR itself. It was incumbent upon the complainant to disclose that date in the FIR. As per contents of thereof last alleged sale deed was executed on 27.4.2000. It was not disputed at the time of arguments that all these are registered sale deeds. Similar matter cropped up before Division Bench of this Court in Punjab State Vs. Dharampal Seth, Haryana Rent Reporter, 2000 (HRR) 384 . It was held therein that the sale deeds are registered with the Sub Registrar. It is a public authority. The parties spend money on stamps. The Document is presented before a public authority. The information is immediately available to the State Government. Despite the registration of the sale deeds on May 28, 1981, no action was initiated by the petitioner till January 15, 1990.
There is an inordinately long delay of more than 8 years. There is no explanation on the record. The complaint is barred by limitation. In view of the ratio of that ruling, in which also the land was converted into Colony by the petitioner, the knowledge is to be attributed to the complainant from the date of the said last sale deed. The period of three years had already expired before the FIR was got registered. In these circumstances, the Magistrate was not competent to take cognizance of the offences so made out against the petitioner. Crl. Misc. No. M – 7827 of 2008 (O&M) -9- It may be added at this stage that similar question came up for hearing before a co-ordinate Bench of this Court in Crl. Misc. No. M – 40990 of 2007, decided on 18.11.2009. The certified copy of that order has been placed on the record. In that case also date of the commencement of the period of limitation was taken as the date of last sale deed and the challan was held having been filed after the period of the limitation.
Against that order petition for Special Leave to Appeal was preferred before the Hon'ble Supreme Court, but was dismissed. Therefore, in the present case also the FIR and all the subsequent proceedings are liable to be quashed on the ground of limitation. The petition is accepted, accordingly. The above said FIR and all the subsequent proceedings are ordered to be quashed. August 19, 2010 tripti (Gurdev Singh) Judge
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — s. 482.
Which court decided this case, and when?
Punjab & Haryana High Court, on 19 Aug 2010. The bench was GURDEV SINGH.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.