Arvind Kumar vs State of Haryana and Another

The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') seeking quashing of FIR No. 0731 dated 27.09.2016, registered at Police Station City Sirsa, under Sections 7, 7(i) and 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short, 'the Act'), and all subsequent proceedings arising therefrom, including the report under Section 173 Cr.P.C.

The petitioner was the owner of agricultural land measuring 13 Kanals 6 Marlas situated in the revenue estate of village Chhatergarh Patti, Tehsil and District Sirsa. According to the petitioner, the land was agricultural in nature and, as it was not yielding the desired return, he decided to sell the same at the prevailing market price. The petitioner thereafter executed a registered sale deed dated 08.11.2011 in favour of Sheo Karan, Surender Kumar and Krishan Kumar, whereby the entire land measuring 13 Kanals 6 Marlas was conveyed through one registered sale deed dated 08.11.2011. The case of the petitioner is that the land was sold as agricultural land and not in the form of separate plots. It is specifically pleaded that the entire land measuring 13 Kanals 6 Marlas was sold through one registered sale deed dated 08.11.2011 and that there was no occasion for him to obtain a licence for sale of agricultural land. On 02.03.2012, respondent no.2-District Town Planner, Sirsa addressed a communication to the Superintendent of Police, Sirsa, alleging that the petitioner had subdivided the aforesaid land into plots without obtaining a licence under Section 3 of the Act. The communication alleged that out of the said plots, land had been sold and that the petitioner had thereby contravened Section 7(i) of the Act, punishable under Section 10. Pursuant to the aforesaid communication and subsequent enquiry by Police, FIR No.0731 dated 27.09.2016 came to be registered at Police Station City Sirsa. The FIR similarly alleged that the petitioner had subdivided the land into plots and sold the same without obtaining the requisite licence.

Learned counsel for the petitioner submits that the entire prosecution is misconceived as the petitioner never carved out or sold any plots. It is contended that the petitioner was the owner of agricultural land measuring 13 Kanals 6 Marlas and sold the entire land through one registered sale deed dated 08.11.2011 in favour of three purchasers. The fact that there was only one registered sale deed, covering the entire land, itself demonstrates that the petitioner did not divide the land into plots before the sale. Learned counsel further submits that the purchasers subsequently divided the land amongst themselves and that such subsequent conduct cannot retrospectively render the petitioner's original sale illegal under Section 7(i) of the Act. It is argued that the statutory prohibition is against the owner transferring or agreeing to transfer plots without obtaining a licence; therefore, unless the petitioner himself divided the land into plots or sold identified plots, the essential ingredient of the offence is absent.

Learned counsel further submits that the land was agricultural land and there is no material on record to demonstrate that, at the time of execution of the sale deed, the petitioner had converted or intended to convert the land into a colony. It is contended that the sale deed itself records the land and its revenue particulars and conveys the entire area as one parcel. Learned counsel also raises the plea of limitation. It is submitted that the sale deed was executed on 08.11.2011, whereas the FIR was registered only on 27.09.2016, i.e. nearly five years thereafter. Since Section 10 of the Act, as applicable to the alleged offence, prescribes imprisonment which may extend to three years, the period prescribed under Section 468 Cr.P.C. is three years. Reliance has been placed upon Janak Raj v. State of Haryana, 2002 (4) RCR (Criminal) 248 and Mahipal v. State of Haryana, 2018 (2) RCR (Criminal) 5. The petitioner contends that the offence is not a continuing offence so as to attract Section 472 Cr.P.C.

Per contra, learned State counsel has opposed the petition. It is submitted that the petitioner has attempted to give the transaction the colour of a sale of agricultural land, whereas the actual transaction was a sale of plots to different purchasers. Learned State counsel submits that, merely because the petitioner executed one registered sale deed, it cannot be concluded that the land was not sold in the form of plots. According to the State, the petitioner deliberately used a single sale deed although the purchasers were separate persons and had no relationship with each other, and this was done to circumvent the requirement of obtaining a licence under Section 3 of the Act. It is further submitted that the District Town Planner, Sirsa had reported that the petitioner had sold out the land measuring 13 Kanals 6 Marlas by way of plots, including an area of 9 Kanals 11 Marlas 3 Sarsai in favour of Sheo Karan, 2 Kanals in favour of Surender Kumar and 1 Kanal 14 Marlas 6 Sarsai in favour of Krishan Kumar. According to the State, the total area so sold was about 67,298 square yards and the petitioner had not obtained the requisite No Objection Certificate/licence.

Learned State counsel further submits that the question whether the land was agricultural and whether it was sold as plots are matters of evidence which should be determined during trial. It is also submitted that the investigation has been completed, challan has been presented and charge has already been framed. Therefore, according to the State, this Court ought to be slow in exercising jurisdiction under Section 482 Cr.P.C., particularly when the matter has entered the stage of prosecution evidence. On limitation, the State denies that the proceedings are liable to be quashed on that ground and seeks dismissal of the petition.

I have heard the learned counsel for the parties and perused the material placed on record. The following questions arise for determination:

Since the first issue goes to the very foundation of the prosecution, it is appropriate to first examine the statutory scheme. Section 2(c) of the Act defines 'colony' as follows:

A plain reading of Section 2(c) of the Act defines 'colony' as an area of land not less than one thousand square metres divided or proposed to be divided into plots for residential, commercial or industrial purposes. The definition, however, excludes, inter alia, land divided or proposed to be divided for agriculture and land divided or proposed to be divided as a result of family partition, inheritance, succession or partition of joint holdings not with the motive of earning profit. Thus, for an area of land to constitute a 'colony', the statutory definition requires, inter alia, that the land be divided or proposed to be divided into plots for residential, commercial or industrial purposes. The expression 'divided or proposed to be divided into plots' assumes significance. The statute does not treat every transfer of land, or every transfer of a share in land, as the creation of a colony. The statutory mischief is attracted where the land is divided or proposed to be divided into identifiable plots for the specified purposes.

Further, Section 3 requires an owner desiring to convert his land into a colony to apply to the Director for grant of a licence. Section 7(i) prohibits, save as otherwise provided in the Act, the transfer or agreement to transfer of plots in a colony without obtaining a licence under Section 3. Section 10 provides the penal consequence for contravention of the provisions of the Act and, in the version applicable to the present transaction, prescribes imprisonment which may extend to three years. The statutory scheme, therefore, makes an important distinction between the sale of a parcel of land and the transfer of plots in a colony. Criminal liability under Section 7(i), read with Section 10, cannot be founded merely upon the fact that land is subsequently divided by its purchasers.

In the present case. the foundational allegation against the petitioner is that he subdivided the land measuring 13 Kanals 6 Marlas into plots and transferred those plots without obtaining a licence. The documentary material, however, does not support the allegation in the form in which it has been made. The sale deed dated 08.11.2011 is a single registered instrument covering the entire land measuring 13 Kanals 6 Marlas. The revenue particulars of the land, including the relevant Khewat, Khatauni, Rectangle and Killa numbers, have been set out in the sale deed. The document records the entire area as 13 Kanals 6 Marlas. The mere fact that the purchasers were three different persons does not, by itself, establish that the vendor had carved out three plots, particularly when the sale deed shows that undivided share out of the total land has been sold to them as per share purchased by each of them. What is material for the purpose of Section 7(i) is whether the petitioner transferred plots as plots, or whether he transferred the land as one composite parcel and the purchasers thereafter divided their respective interests.

The State's own case, as disclosed in its reply, is that the petitioner sold the entire 13 Kanals 6 Marlas by way of a single registered sale deed and that the purchasers thereafter dealt with the land in separate portions. The principle governing such a situation is no longer res integra. In Matadin v. State of Haryana, 2005 (1) RCR (Criminal) 64, this Court considered a case where the petitioner had sold seven kanals of land as one compact and undivided area and the purchasers thereafter divided it into seven plots. It was held that such subsequent division by the purchasers could not make the original vendor liable for creating a colony. The proceedings were accordingly quashed. The reasoning in Matadin (Supra) was founded upon the statutory requirement that, before a colony can be said to have been set up, the land must be divided into plots or proposed to be divided into plots. Where the vendor has himself not divided the land and has sold a compact, undivided parcel, the subsequent act of the purchasers cannot retrospectively constitute the vendor's transaction as one of sale of plots. The principle is also consistent with the earlier judgment in Partap Singh and another v. State of Haryana and another, 2002 (3) PLR 817, wherein this Court emphasised that the statutory concept of a colony necessarily involves division of land into plots or a proposal to divide the same into plots.

The present case stands on an even stronger footing because there is only one sale deed covering the entire area of 13 Kanals 6 Marlas. The prosecution does not allege that, prior to execution of the sale deed, the petitioner had carved out identifiable plots, assigned plot numbers, prepared a layout plan or otherwise divided the land into separate plots. The report of the District Town Planner, relied upon by the prosecution, gives the respective areas which ultimately came to be associated with the purchasers. But such description, by itself, does not establish that the petitioner had, before or at the time of the sale, carved out those portions as separate plots. Criminal liability cannot be founded upon an inference drawn merely from the subsequent use or division of the property by the purchasers. The prosecution must disclose the ingredients of the offence against the person sought to be prosecuted. The respondent has contended that the petitioner deliberately executed one sale deed to conceal the sale of plots. This allegation may be a matter for investigation where there is independent material to establish such a design; however, the material placed before this Court does not disclose any such independent material. The allegation essentially rests upon the fact that three persons purchased the land through one deed as per the shares mentioned in the sale deed without any partition of their respective shares. The execution of a single conveyance in favour of more than one purchaser is not, by itself, prohibited by Section 7(i). What the provision prohibits is transfer of plots in a colony without the requisite licence. The distinction between a sale of land and a sale of plots is, therefore, decisive in the present case.

The contention of the State that the petitioner has not produced sufficient material to establish agricultural use of the land also does not cure the fundamental defect in the prosecution case. Even assuming, for the sake of argument, that the agricultural character of the land requires evidence, the prosecution must still demonstrate that the petitioner divided or proposed to divide the land into plots and transferred such plots without a licence. On the material before this Court, that essential ingredient is absent. It is also significant that the District Town Planner's communication dated 02.03.2012 proceeded on the allegation that the petitioner had subdivided the land into plots and that "out of the above plots" he had sold the land. However, the only sale deed placed on record is one composite sale deed covering the entire 13 Kanals 6 Marlas. Thus, the prosecution's assertion of subdivision is not supported by the very conveyance relied upon to attribute the offence to the petitioner. Consequently, the prosecution case, even if taken at its face value, does not disclose that the petitioner himself transferred separate plots in contravention of Section 7(i).

Additionally, there is also considerable force in the petitioner's plea of limitation. The sale deed, which constitutes the foundation of the alleged offence, was executed on 08.11.2011. The first departmental communication seeking registration of the FIR was made on 02.03.2012, whereas the FIR itself was registered only on 27.09.2016. Section 10 of the Act, as applicable to the alleged contravention, prescribed imprisonment which could extend to three years. Consequently, Section 468(2)(c) Cr.P.C. prescribed a period of limitation of three years for taking cognizance of such an offence. The law laid down by this Court in Janak Raj v. State of Haryana, 2002 (4) RCR (Criminal) 248, is directly relevant. In that case, proceedings under Sections 7 and 10 of the Act were held to be barred by limitation where the offence had been committed more than three years before the criminal proceedings were initiated. The same principle was reiterated by this Court in Mahipal v. State of Haryana, 2018 (2) RCR (Criminal) 5. There, this Court considered an offence under Sections 7 and 10 of the Act and held that the offence was not a continuing offence for the purpose of Section 472 Cr.P.C. and that proceedings initiated beyond the three-year period prescribed under Section 468 Cr.P.C. were barred by limitation. The State has not placed on record any material demonstrating that the offence alleged against the petitioner was a continuing offence within the meaning of Section 472 Cr.P.C. The allegation relates to the transfer of land pursuant to the sale deed dated 08.11.2011. The act complained of was thus complete upon the alleged transfer. The mere fact that the purchasers may have thereafter used or divided the land cannot extend the statutory period of limitation against the petitioner.

More importantly, the statutory bar under Section 468 Cr.P.C. concerns the date of cognizance and not merely the date of registration of the FIR. However, where the alleged offence itself took place in November, 2011 and the FIR was registered only in September, 2016, and court has not taken cognizance on the day of lodging FIR. Cognizance would be deemed to have been taken on the day when, upon the acceptance of final report, the Court decided to proceed against the petitioner. The prosecution cannot overcome the limitation merely by relying upon the registration of the FIR. The relevant question remains whether cognizance was taken within the statutory period or whether the delay was validly dealt with in accordance with law. No material has been shown to this Court demonstrating any order under Section 473 Cr.P.C. whereby the competent Court, upon proper consideration, extended the period of limitation by recording satisfaction that the delay had been properly explained or that taking cognizance after expiry of limitation was necessary in the interests of justice. Thus, limitation furnishes an additional and independent ground for interference.

The respondent has argued that the present petition should not be entertained because the investigation has concluded, challan has been presented and charge has been framed. It is true that the inherent jurisdiction under Section 482 Cr.P.C. is extraordinary and is to be exercised sparingly. The mere existence of a remedy before the trial Court ordinarily constitutes a circumstance against interference. However, the power under Section 482 Cr.P.C. is not rendered unavailable merely because charge has been framed particularly when petitioner approached the court before any charge was framed. Where the admitted or unimpeachable documentary material demonstrates that the basic ingredients of the offence are absent, or where continuation of the prosecution is barred by law, the High Court can intervene notwithstanding the stage of the proceedings. The principles laid down by the Hon'ble Supreme Court in the landmark judgment of State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., 1991 (1) RCR(Criminal) 383 has laid down as following:

In M/s. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 19 SCC 401, the 3-Judge Bench of Hon'ble Supreme Court reiterated the above principles and elaborately considered the scope and extent of the power under Section 482 Cr.P.C., 1973. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by Apex Court in R.P. Kapur v. State of Punjab AIR 1960 SC 866 and State of Haryana and others v. Bhajan Lal (supra), the Court would have jurisdiction to quash the FIR/complaint.

Therefore, the present case squarely falls within the first category of conditions illustrated by the Hon'ble Supreme Court in Bhajan Lal(Supra), wherein interference in exercise of inherent jurisdiction is warranted where the allegations made in the FIR, even if taken at their face value and accepted in their entirety, do not prima facie constitute an offence or make out a case against the accused. In the present case, even if the allegations contained in the FIR and the material collected during investigation are accepted in their entirety, the foundational allegation that the petitioner himself divided the land into plots and transferred such plots without obtaining the requisite licence is not established. The prosecution's own material shows that the entire land measuring 13 Kanals 6 Marlas was conveyed through one registered sale deed dated 08.11.2011. There is no material demonstrating that, prior to or at the time of such sale, the petitioner himself had carved out identifiable plots, assigned plot numbers, prepared a layout plan or otherwise divided the land into separate plots.The subsequent division attributed to the purchasers cannot retrospectively constitute an offence by the petitioner under Section 7(i). The situation is therefore not one where this Court is required to appreciate disputed oral evidence. The conclusion follows from the nature of the very transaction upon which the prosecution is founded.

The subsequent division or utilisation of the land by the purchasers cannot retrospectively convert the transaction entered into by the petitioner into a transfer of plots within the meaning of Section 7(i) of the Act. The distinction between a transfer of land as one composite parcel and a transfer of identified plots in a colony is fundamental to the applicability of the penal provision. Thus, the deficiency in the prosecution case is not one which requires appreciation of disputed evidence at trial; rather, it goes to the very existence of an essential ingredient of the alleged offence. The prosecution cannot be permitted to subject the petitioner to a criminal trial on the basis of an act which, even on the prosecution version and the documents relied upon by it, does not constitute the offence alleged.

This Court is conscious that the power under Section 482 Cr.P.C. is extraordinary and is required to be exercised sparingly. Where the allegations, even if accepted in their entirety, fail to disclose the essential ingredients of the offence, continuation of the criminal proceedings would itself amount to an abuse of the process of law. The present case, therefore, falls within the first category of the principles enunciated in Bhajan Lal (Supra).

There is, in addition, an independent statutory impediment to the continuation of the proceedings. The alleged transaction is founded upon the sale deed dated 08.11.2011, whereas the FIR was registered only on 27.09.2016, and no material has been placed on record demonstrating a valid exercise of jurisdiction under Section 473 Cr.P.C. so as to overcome the statutory bar of limitation under Section 468 Cr.P.C. The plea of limitation, therefore, constitutes an additional and independent ground for interference. Consequently, the continuation of the FIR and all consequential proceedings against the petitioner, in the circumstances noticed above, would amount to an abuse of the process of the Court and calls for exercise of the inherent jurisdiction of this Court under Section 482 Cr.P.C.

Consequently, the present petition is allowed. FIR No.0731 dated 27.09.2016, registered at Police Station City Sirsa, under Sections 7, 7(i) and 10 of the Haryana Development and Regulation of Urban Areas Act, 1975, and all consequential proceedings arising therefrom, including the report under Section 173 Cr.P.C. and the order framing charge, are hereby quashed qua the petitioner, Arvind Kumar.

It is clarified that the present order is confined to the petitioner and shall not affect the proceedings, if any, against any other person who is not before this Court.

Pending miscellaneous application(s), if any, shall also stand disposed of.