Jagga Singh vs State of Haryana

M.L. Singhal, J.

Through this Crl. Misc. petition filed under Section 482 Cr.P.C., Jagga Singh seeks the quashing of case FIR No. 45 dated 14.3.1987 registered under Section 10 of Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter to be referred as Act) of PS City Thanesar against him. He has prayed for the quashment of charge sheets Annexures P.3 to P.7 drawn up in the cases.

It is averred by Jagga Singh that this father Niranjan Singh was the owner of the agricultural land situated at village Mirzapur, Tehsil Thanesar, Kurukshetra. He was in need of money for the purchase of some other land. He was an old man unable to effect sales himself. He accordingly appointed him as general attorney through a registered general power of attorney No. 156/4 dated 29.1.1986 registered by Sub Registrar, Thanesar. On the strength of that general power of attorney executed by his father in his favour, he sold his land to various purchasers vide registered sale deeds. On 27.2.1987, letter No. 349 DTP(KK) Annexure P.1 was written by the Field Investigator working in the office of District Town Planner, Kurukshetra to Superintendent of Police, Kurukshetra saying that he (petitioner) had violated the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 and that case be registered against him. Case FIR No. 45 Annexure P.2 was registered against him at PS City Thanesar on 14.3.1987 in pursuance of that letter Annexure P.1. Police of PS City Thanesar submitted 5 different challans arising out of FIR No. 45 (ibid) against Jagga Singh and his father Niranjan Singh. Shri R.R. Banswal, District Magistrate, Kurukshetra granted sanction for their prosecution without application of mind in a mechanical manner though he was not authorised by the Director, Town & Country Planning, Haryana to grant sanction for their prosecution. Sanction order is on a cyclostyled proforma. At the time of granting sanction, only some columns were filled. JUDGMENT of Shri R.R. Banswal, District Magistrate, Kuruksherta is without any authority delegated to him and is defective as no offence is made out with respect to 5 challans submitted in the Court viz. Challan No. 242/3, 243/3, 244/3, 245/3, 246/3 of 1988. Each of the sales effected by him as general attorney of his father embraces an area measuring less than 1000 sq. metres so far as aforesaid challans are concerned. Effecting the sales covered by the aforesaid challans did not tantamount to the setting up of a colony as defined in Section 2(c) of the said Act, as the area sold did not exceed 1000 sq. mt. in any of the aforesaid challans. In Challan No. 242/3 of 1988, the total area sold to Lachhman Dass, Remeshwar and Krishan Chand vide sale deeds No. 1606, 1607 and 1608 on dated 16.6.1986 measured only 1 kanal 131/2 marlas i.e. far less than 1000 sq.mt. Similar is the position with regard to total area covered by challan Nos. 243/3, 244/3, 245/3, 246/3 of 1988. In none of the challans, in which charge has been framed, there is no sales where the area sold is more than 1000 sq.mt. It is further averred that Jagga Singh had acted only as agent. If at all, Niranjan Singh the principal can be prosecuted and not he who is merely an agent. It is further averred that he has been facing the agony of trial since 14.3.1987. No progress has been made towards trial so far. Only one PW has been examined so far in the said case.

I have heard the learned counsel for the petitioner and the learned counsel for the State of Haryana and have gone through the paper book.

''Colony'' has been defined in Section 2(c) of the Haryana Development & Regulation of Urban Areas Act. 1975 as follows :

"Colony means an area of land divided or proposed to be divided into plots for residential, commercial or industrial purposes, but an 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 holding not with the motive of earning profit; or

(iii) in furtherance of any scheme sanctioned under any other law; or

(iv) by the owner of a factory for setting up a housing colony for the labourers or the employees working in the factory; provided there is no profit motive; or

(v) when it does not exceed one thousand square metres, shall not be a colony."

It has been submitted by the learned counsel for the petitioner that the act of effecting sales by him was not a colony as he had sold lands in bits and the area sold covered in each of the said challans measures less than 1000 sq. metres. Suffice it to say, the area sold in small bits to so many persons on 16.6.1986 and 30.6.1986 exceeded 1000 sq. metres. It would bear repetition that colony means an area of land divided or proposed to be divided into plots for residential, commercial or industrial purposes and area measuring 5 marlas, 31/3 marlas, 6 marlas, 71/2 marlas, 41/2 etc. cannot be gainfully cultivated by its purchaser. For setting up a colony in Haryana as defined in this Act, licence is required to be obtained from the Director, Town & Country Planning, Haryana. Section 3 of this Act lays down that "any owner desiring to convert his land into a colony, shall, unless exempted under Section 9, make an application to the Director, for the grant of a licence to develop a colony in the prescribed form and pay for it such fee as may be prescribed. The application shall be accompanied by an income tax clearance certificate. Section 9 deals with the circumstances when the Director, Town & Country Planning shall grant exemption to a person from obtaining the licence."

This Act was enacted with a view to regulate the use of the land in order to prevent illplanned and haphazard urbanisation in areas around towns in the State of Haryana. Purchase of land in small bits by different purchasers will promote colonisation. Promotion of colonisation without licence from the Director, Town & Country Planning is punishable under Section 10 of the Act.

Faced with this position, learned counsel for the petitioner has submitted that the petitioner was only a general attorney for Niranjan Singh. He only fulfilled the wishes of Niranjan Singh while executing the sale deeds. He did not act on his own but acted in accordance with the wishes of his principal and, therefore, he has committed no offence. Suffice it to say, the principal is also coaccused with him. Such plea can be set up at the trial by the petitioner. It has been next submitted that the District Magistrate, Kuruksthetra, Shri R.R. Banswal was not authorised to grant sanction to prosecute the petitioner and his father by the Director, Town & Country Planning and further the District Magistrate, Kurukshetra granted sanction in a mechanical manner on a cyclostyled proforma without application of mind. Suffice it to say, this plea can also be taken up at the trial.

It is thus not a case where this prosecution can be quashed at the threshold. Allegations against the petitioner and his father are that they had subdivided the land into plots for residential/industrial/commercial purposes without obtaining licence from the Director, Town & Country Planning under Section 3 of the said Act and had sold the plots in bits to different purchasers. In State of Haryana v. Ch. Bhajan Lal and others, 1991(1) RCR (Crl.) 383 : AIR 1992 SC 604 , Hon''ble the Supreme Court has laid down guidelines for the High Courts where a criminal prosecution can be quashed at the threshold and those guidelines are enumerated as follows :

"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.

Where the allegations in the FIR 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.

Where the uncontroverted allegations made in the FIR or compliant 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.

Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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.

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 accused and with a view to spite him due to private and personal grudge."

So far as this case is concerned it cannot be said that the allegations made are so absurd and inherently improbable on the face of it that there is no sufficient ground for proceeding against the accused. It is not a case where at the threshold it can be said that this criminal prosecution is false and vexatious engineered out of spite or illwill.

For the reasons given above, this criminal miscellaneous petition fails and is dismissed.