Bishna Ram vs State of Haryana

R.L. Anand, J.

Though this Court does not interfere invariably in the proceedings under Section 482, Cr. P.C., when the charge against the accused has already been framed by the trial Court, on the principle of alternative remedy, yet once glaring illegality comes to the notice of this Court, nothing prevents it from invoking the extraordinary powers, and present is a case where Shri Bishna Ram son of Mangu Ram, has come to this Court for the quashing of F.I.R. No. 328 dated 12th September, 1986 under Sections 7(1) and 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short ''the Act''), and the order dated 5th July, 1988 passed by the Judicial Magistrate Ist Class, Jagadhri framing the charge against the petitioner under Section 7 of the Act.

The prayer of the petitioner is that he owns agricultural land measuring 8 kanals equivalent to 4840 sq. yards, Khewat No. 37/57, Khasra No. 21/3, situated in village Gulab Nagar, Tehsil Jagadhri, and this village is at a distance of more than 5 kilometers from the municipal limits of Jagadhri. At the first instance it was included in the municipal limits of Municipal Committee, Jagadhri, on 26.11.1985 vide Government of Haryana notification No. 25/3/842CI dated 26th October, 1985, which was published in the official gazette on 26th November, 1985. Prior to the enforcement of this notification the petitioner sold some parcels of the land out of the land owned by him, on 29.8.1983, 6.9.1983 and 2.12.1983. The total area sold by him on three occasions was 195 sq. yards, 200 sq. yards and 190 sq. yards. The Assistant Town Planner, Yamunanagar, lodged a report, which became the basis of F.I.R. No. 328 dated 12th September, 1986, Police Station Jagadhri under Sections 7(1) and 10 of the Act, against the petitioner. The petitioner was arrested and he was released on bail. The Magistrate vide order dated 5th July, 1988 framed the charge against the petitioner under Section 7 of the Act. According to the petitioner, the F.I.R. as well as the charge are liable to be quashed on the ground that he had not violated any provision of the Act. The F.I.R. pertained to the sale of small pieces of and which was effected as far back as 1983 when the land owned by the petitioner did not fall in the municipal limits of Jagadhri and as such it did not attract the provisions of the Act. It was also pleaded by the petitioner that his total land is 8 Kanals, which is less than the limit of 1000 sq. metres, prescribed under Section 2(c) of the Act. The learned Magistrate did not apply his mind while framing the charge against the petitioner. The prosecution of the petitioner had caused him lot of harassment. The F.I.R. is a complete abuse of the process of law.

With the above main averments, the petitioner has prayed for the quashment of the F.I.R. and the charge.

Notice of the petition was given to the State, which filed reply and denied the allegations made in the petition. It has been admitted by the State that the petitioner owned 1 Killa of land, which is equivalent to 4840 sq. yards. However, it has been denied by the State that the land of the petitioner, which was sold by him was not within 5 kilometres from the municipal limits of Municipal Committee, Jagadhri. The petitioner has violated the provisions of the Act, and, therefore, is not entitled to the quashement of the F.I.R. and the charge.

I have heard Sh. I.K. Mehta, Advocate, on behalf of the petitioner, and the learned Assistant Advocate General, Haryana, on behalf of the State, and with their assistance have gone through the record of this case.

The F.I.R. and the charge have been sought to be quashed mainly on the ground that the sales are not covered by the notification; and, secondly, according to the petitioner, his total land is 8 Kanals, which is less than the limit of 1000 sq. metres. So far as the second plea is concerned, this plea is not tenable because if 4840 sq. yards are converted into metres, it will become much more than 1000 sq. metres, as prescribed under Section 2(c) of the Act. Resultantly, the petitioner cannot take the advantage of the plea that his total and was less than the limit of 1000 sq. metres. The caselaw reported as Dilbagh Rai v. State of Haryana (Criminal Revision No. 1426 of 1982) is not applicable to the facts in hand. In the said case neither of the petitioners had sold the plot of more than 1000 sq. metres each, to render them liable for penalty. In the present case the petitioner is one and he had the land, the total area of which was more than 1000 sq. metres. He had sub divided the land into plots for residential/industrial/commercial purposes without obtaining licence from the Director, Town and Country Planning, Haryana.

So far as the first plea of the petitioner is concerned, it carries weight. The petitioner can only be prosecuted if it is prima facie established that the land sold by him is within 5 kilometres of the municipal limits of the Municipal Committee, Jagadhri. There is no prima facie evidence led by the respondentState about the location of the land. Moreover, the sales have been effected in the year 1983, much prior to the issuance of the notification, which became effective with effect from 26th November, 1985. This notification is to operate prospectively and not retrospectively. In this view of the matter, the petitioner has not committed prima facie any offence, of which he was chargesheeted by the learned Magistrate on 5th July, 1988. By framing the charge against the petitioner a patent illegality has been committed and a serious prejudice has been caused against him.

Resultantly, the petition is allowed. The F.I.R. and the charge against the petitioner are hereby quashed.