- (1.) Challenge in the present writ petition is to sub Rules (3) & (4) of Rule 31 of the Punjab Apartment and Property Regulation (First Amendment) Rules, 2010 (for short 'the Rules') and the notification dated 15.04.2011 (Annexure P-5) fixing fee for compounding the offences as ultra vires of the provisions of the Constitution of India. The brief facts are that the petitioner is said to have sold the plots to the various persons and has executed sale deeds on completion of payment in the year 2000-02. An FIR dated 05.12.2002 (Annexure P-1) stands lodged against the petitioner under Sections 3, 5, 8, 9, 14(i), 15 & 18 of the Punjab Apartment and Property Regulation Act, 1995 (for short 'the Act'). Thereafter, the petitioner is said to have made a representation for compounding of the offence on 21.02.2003 for the reason that the plots have been sold prior to the coming into force of the Act.
(2.) For the purpose of adjudication of the present petition, Section 38 of the Act, contemplating compounding of the offences; the relevant extract of the Rules; and the notification prescribing the fee for compounding the offences, are reproduced as under: Section 38 of the Act: 38. Prosecution and composition of offences - (1) No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the competent authority or any person authorized in this behalf by the competent authority. (2) The competent authority may, either before or after the institution of the proceedings for prosecution, compound any offence punishable by or under this Act subject to such conditions and restrictions as may be prescribed. (3) Where an offence has been compounded, the offender, if in custody, shall be released and no further proceedings shall be taken against him in respect of the offence compounded. Rules as amended vide Notification Dated 9th December, 2010: 1. Short title and commencement - (1) These rules may be called the Punjab Apartment and Property Regulation (First Amendment) Rules, 2010. (2) They shall come into force on and with effect from the date of their publication in the official Gazette. 2. In the Punjab Apartment and Property Regulation Rules, 1995 (hereinafter referred to as the said rules), in rule 2, after clause (f), the following clause shall be added, namely:- (g) 'Un-authorized Colony' means a colony which has been developed in contravention of the provisions of the Act and the rules made thereunder.
(3.) In the said rules, after rule 30, the following rules shall be added, namely:- 31. Compounding of offences - (1) Notwithstanding anything contained in these rules, the competent authority on an application, made by the promoter in Form APR-V-A, may, either before or after the institution of the proceedings for prosecution, compound an offence of developing an unauthorized colony. (2) On receipt of an application under sub-rule (1), the competent authority may, if it deems proper, compound the said offence on the fulfillment of following conditions and restrictions by the promoter, namely:- (a) that the promoter first of all, shall obtain a license in accordance with the provisions of the Act and the rules made thereunder; (b) that the unauthorized colony should not fall within the distance of sixteen kilometers from the outer boundary of Union Territory of Chandigarh; (c) that the promoter shall submit to the competent authority, the proof of absolute ownership of the land, on which unauthorized colony has been developed by him, from the concerned authority; and (d) that the land on which unauthorized colony has been developed, is in conformity of development of the colony with neighbouring areas. (3) For compounding an offence in the case of an unauthorized colony, developed before the 17th day of August, 2007, in addition to the conditions and restrictions, specified in sub-rule (2), the following conditions shall also be fulfilled, namely:- (a) the promoter shall deposit such fee by way of demand draft, as may be determined by the State Government from time to time by notification in the official gazette by taking into consideration all relevant aspects; (b) the width of the access road to such colony shall not be less than thirty-five feet; (c) the width of the internal roads in such colony shall not be less than twenty-five feet; (d) in the layout plan of such colony, the land reserved for roads, open spaces, schools and public and community buildings and other common purposes, shall not be less than thirty-five percent of the gross area of such colony; and (e) such colony must have a site for water works and Sewage Treatment Plant or it should have been linked with the water supply and sewerage laid down by a local authority in the area of such colony. Notification Dated 15th April, 2011 No. S.O. 00/R.31/1995/2011 - In pursuance of the provisions of clause (a) of sub rule (3) and sub-rule (4) of rule 31 of the Punjab Apartment and Property Regulation Rules, 1995, and all other powers enabling him in this behalf, the Governor of Punjab is pleased to determine the following rates of fee, for compounding an offence in the case of unauthorized colonies, developed before, and after the 17th day of August, 2007, namely :- A fee for compounding an offence in the case of unauthorized colonies developed before the 17th day of August, 2007 :- Sr. No. Kind of Area Compounding Fee Other Charges Area falling within the jurisdiction of GMADA but outside 16 K.M. Of U.T. Chandigarh Boundary Rs. 40,000/- per gross acre Rs. 400/- per sq. yard for the saleable area. XXX XXX XXX;