Krishan Lal Chabra vs The Administrator, Punjab Urban Planning and Development Authority and Others

Jawahar Lal Gupta, J.—On February 2, 1996, the Administrator, Punjab Urban Planning and Development Authority, Ludhiana, wrote to the Senior Superintendent of Police and requested him that "directions may be issued to the concerned SHO to register the FIR" against the petitioner "as he has given advertisements for raising unauthorised colony/apartments....." The petitioner has filed the present petition with a prayer that this letter be quashed as he had not acted in violation of the provisions of the Act. A few facts may be noticed.

The petitioner is the Managing Director of the "Chhabra Land and Housing Limited". It is a limited company which constructs residential/commercial apartments for sale to the public. The Company published an advertisement on October 30, 1995 for sale of constructed houses at Ferozepur Road. It issued another advertisement in this behalf on November 6, 1995. Copies of the two advertisements are at Annexures P1 and P2 with the writ petition.

In the year 1995, the State Legislature passed the Punjab Apartment and Property Regulation Act, 1995. On October 13, 1995, the Governor of Punjab issued a Notification in terms of Section 1(3) declaring that the Act shall come into force in the State of Punjab with effect from Oct. 15, 1995. On November 10, 1995, a notification was published in the Government Gazette u/s 21(1) of the Act by which the Governor of Punjab fixed the 30th day of November 1995 "as the date from which no person shall carry on business of promoter or estate agent, or represent or hold himself out as carrying on such business except under and in accordance with the terms and conditions of the certificate or registration granted under the aforesaid Act". A copy of this notification is at Annexure P4 with the writ petition. Thereafter, on February 2, 1996, the impugned letter was written alleging that by issuing the advertisements, the petitioner had violated the provisions of Section 4, 5, 18 and 21 of the Act. These were punishable u/s 36. Consequently, a request for the registration of a case against the petitioner was made. The petitioner challenges the validity of this letter.

A written statement has been filed by the Administrator. Certain preliminary objections have been raised. It has been alleged that the petitioner has violated the provisions of Section 4 by constructing apartments at various places in Ludhiana without obtaining licence from the competent authority. The writ petition is premature as "no FIR has been registered....till date....." On merits, it has been stated that the petitioner had issued the advertisements at Annexure P1 and P2 with the writ petition "without obtaining the licence as required under the Act." He had, thus, committed the offence by giving the advertisements. He has violated Section 4 of the Act. On the basis, it has been prayed that the writ petition be dismissed with costs. The petitioner has filed a replication controverting the averments made in the written statement.

This case has come up for hearing on July 11, 1996. On that day, Mr. Dogra, learned counsel for the petitioner had submitted that the action of the Administrator of the Authority in issuing the letter dated February 2, 1996 for registration of a case against him was wholly illegal He had pointed out that a notification u/s 21(1) of the Act was issued on November 10, 1995. By virtue of this notification, no person was entitled to carry on the business of promoter or estate agent after November 30, 1995 without registration under the Act. In the present case, both the advertisements having been issued prior to November 30, 1995, the petitioner could not be accused of having violated any provision of the Act. Thus, no proceedings could have been initiated against him. The respondent has sent the letter for registration of a case only to unduly harass the petitioner. In view of this contention, Mr. Grover, Learned counsel for respondent No. 1 had prayed for a short adjournment to enable him "to obtain instructions regarding withdrawal of the letter, dated February 6, 1996." Accordingly, the case was adjourned to July 15, 1996. On that day, it was pointed out that the Administrator was not willing to withdraw the letter. The counsel had prayed for more time. The case was, consequently, adjourned to July 29, 1996. It was also directed that respondent No. 1 shall be present in court. After July 15, 1996, Mr. C.S. Talwar who was working as the Administrator was transferred. However, when the matter came up for hearing on July 29, 1996, we directed him to be present in court. He appeared on July 31, 1996. He regretted his failure to appear in court. On merits, he pointed out that the issue of advertisements was illegal. Consequently, the letter issued by him was perfectly valid and deserved to be sustained. Is it so?

A few provisions of the Act may be noticed. The Act was published in the Gazette on August 9, 1995. In Section 1(3), it was provided that the Act "shall come into force on such date as the State Government may by notification in the official Gazette, appoint and different dates may be appointed for different areas of the State." As already noticed, vide notification dated October 13, 1995, a copy of which is on record as Annexure P3, the Act was enforced with effect from October 15, 1995 in the whole of the State of Punjab. u/s 4, it has been inter alia provided that "no promotor shall issue an advertisement or prospectus, offering for sale any apartment or plot or inviting persons who intend to take such apartments or plots to make advances or deposits, unless-(a) the promoter holds a certificate of registration under sub-section (2) of Section 21...... and its number is mentioned in the advertisement or prospectus..,.." By Section 21(1), it was provided that "from such date as may be fixed by the State Government, by notification in the official Gazette in this behalf, no person shall carry on the business of promoter or estate agent, or represent or hold himself out as carrying on such business, except under and in accordance with the terms and conditions of the certificate of registration granted under this Act". Clause (2) provides for the submission of an application for registration as a promoter or as an estate agent alongwith the prescribed fee on the prescribed form. It is, thus, clear that the provision for registration of promoters and estate agents was to become operative from a date to be fixed by the State Government by notification in the official Gazette. The application had to be submitted on a prescribed form. The prescribed fee had also to be deposited. It is only thereafter that the bar u/s 4 could become operative.

Admittedly, the rules under the Act were published in the Gazette on November 23, 1995. This fact was admitted by Mr. Talwar. Furthermore, the notification u/s 21(1) was published on November 10, 1995. By this notification, the Governor of Punjab had fixed the day of 30th November, 1995 from which no person could carry on "the business of promoter or estate agent...." Consequently, it is apparent that before 30th of November, 1995, no person was debarred from carrying on "the business of promoter or estate agent...." under the Act. As such, even the bar u/s 4 regarding issue of an advertisement could not have applied. In this situation, it cannot be said that the petitioner had acted in violation of the provisions of Sections 4 or 21 in issuing the two advertisements dated October 30, 1995 and November 6, 1995. Similar would be the position with regard to Section 5 and 18. The two latter provisions deal with the development of land into colonies and regulation of property transactions. Thus, the very basis on which the Administrator sought the registration of a case against the petitioner was ill-founded. Consequently, there was no occasion for the registration of any case in this behalf against the petitioner.

Mr. Grover, learned counsel for respondent No. 1 submitted that mere writing of letter or registration of the case gave no cause of action to the petitioner. According to the Learned counsel, the petition was wholly premature.

This contention cannot be accepted. In the written statement filed on behalf of respondent Nos. 2 to 4, it has been pointed out that besides letter dated February 2, 1996, a letter dated January 12, 1996 had also been written by the Administrator. Both the letters had been marked to SHO, Police Station, Sarabha Nagar for necessary action. It has undoubtedly been stated that "the enquiry got made in the matter has revealed that no police official has visited the house of the petitioner nor he has been summoned to the police station so far." It has been further stated that the offence under the Act is cognizable and the police can register a case against the petitioner. In this situation, it is apparent that the petitioner faced an imminent danger. He had a cause of action. He was not required to wait till he was actually arrested and his freedom jeopardised. His action in approaching the court cannot be said to be premature. A citizen is not to wait for loss of liberty before approaching the court. If his liberty is threatened, even though he has committed no offence, he is not debarred from filing a petition. This is precisely what has been done in the present case.

Learned counsel for the respondent has also pointed out that prior to the promulgation of this Act, 1975 Act were in force. Even under those provisions, a person was debarred from setting up a colony except after compliance thereof. It is undoubtedly so. However, by section 46, the provisions of the 1975 Act were repealed. On the promulgation of the 1995 Act, the provisions of the 1975 Act were no longer in force. Thereafter, it had become incumbent on a person to get himself registered in view of the provisions of Section 21. The date in this behalf was fixed as November 30, 1995 vide notification dated November 10, 1995. This application for registration had to be made on the prescribed form. The form had to be prescribed under the rules. The rules were also promulgated on November 23, 1995. Thus there was a hiatus in the intervening period. It was during this interval when the 1975 Act did not exist and the provisions of 1995 Act regarding registration as a promoter were not in force that the advertisements had been issued by the petitioner. Consequently, the contention raised by the learned counsel for respondent No. 1 cannot be sustained.

No other point was raised.

In view of the above, the writ petition is allowed to the extent that the letters dated January 12, 1996 and February 2, 1996 are quashed. It is declared that the two advertisements did not violate the provisions of the 1995 Act. No costs.