Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1270 (PNJ)

National Association of Relators v. State of Haryana

2013-09-19

AUGUSTINE GEORGE MASIH, SANJAY KISHAN KAUL

body2013
JUDGMENT Sanjay Kishan Kaul, C.J. 1. These petitions raise common issues qua the challenge to different provisions of the Haryana Regulation of Property Dealers and Consultants Act, 2008 (in short 'the Act') and the Rules framed thereunder in 2009 as also the constitutional validity thereof. We have had the benefit of submissions of learned senior counsel for the petitioners and learned Advocate General on two different dates of hearing. 2. In our view, there can be no doubt about the laudatory object with which the Act and Rules were sought to be brought into force. However, it does appear to us that some aspects may have escaped attention while acting in pursuance to this object apart from the constitution challenge laid. 3. It has been pointed out to us that though, the object and reasons specify the purpose of this Act to promote standards of conduct and competence of person engaged in property dealing and to protect the interest of those persons using the services of property dealers, even the basic qualification required to carry on the business has not been specified. Not only that, a cap is sought to be put on fee recovered for the services rendered. It has been rightly pointed out that the level of service may vary from person to person and there are organizations which are giving comprehensive services not necessarily restricted to locating the prospective seller/purchaser and these services cannot be rendered within the cap fixed and thus, it should be left to the two contracting parties to decide as to what should be charges for the service rendered keeping in mind the quality and nature of the service to be so rendered. 4. A third aspect is about the criminality of any inaction or noncompliance of the Rules under the Act. This is also in the context of the fact that there are certain provisions especially of the Rules which possibly can be fine tuned better or some of them which may be at variance with the provisions of the Act or may not have any relevance whatsoever to the objective sought to be served. 5. This is also in the context of the fact that there are certain provisions especially of the Rules which possibly can be fine tuned better or some of them which may be at variance with the provisions of the Act or may not have any relevance whatsoever to the objective sought to be served. 5. Some of the examples given of the aforesaid are in Section 17 of the said Act where a sentence is provided for violation of any provision of the Act or Rules made thereunder by a person registered under the Act while on the other hand Subsection 2 of the same provision lets a person gets away with the fine if he does not register himself at all. Similarly, under the Rules it is pointed out that Rules 9(vi) refers to a property dealer not indulging in insider trading which can have no relevance to the business. Rule 8(1)(i) appears to make no sense. Similarly, Rule 9(ii) seeks to put the burden of very small expenditure on the seller while it is not even known as to what is the arrangement inter-se buyer and seller. Sub-rule 3 of Rule 9 once again puts the burden on the property dealer to verify the genuineness of the documents which the property dealer may not be equipped to verify. Possibly what was sought to be achieved was that all due care should be taken in the process of verification. Thus, much leaves to be desired especially in respect of the Rules framed under the said Act and necessary corrective action can be taken in this behalf by just amending the rules as per the notification. 6. It appears that the hurry in bringing the legislation may be the cause for this while the Rules seem to have been drafted in even greater hurry. It is in this context that learned Advocate General fairly concedes that the State of Haryana is only seeking to achieve the laudatory objective and if in that process some infirmities have been left, they can always be addressed. 7. It is thus, agreed by him that the State of Haryana will set up a small compact committee consisting of experts preferably with some independent experts as members to go into the issues as to whether any amendments are required to be proposed to the Act and more specifically the Rules. 7. It is thus, agreed by him that the State of Haryana will set up a small compact committee consisting of experts preferably with some independent experts as members to go into the issues as to whether any amendments are required to be proposed to the Act and more specifically the Rules. For this purpose, a committee be constituted within a period of two weeks from today. The committee will thereafter give adequate publicity and invite suggestions from the public and the trader giving a window of thirty days for the said purpose and thereafter examine the suggestions and submit its recommendations to the Government of Haryana for consideration. The committee will endeavour to complete this exercise within a period of three months of its constitution. Thereafter, the matter will rest with the Government of Haryana. 8. We are sure that if a pragmatic approach is adopted keeping the overall objective in mind, a number of aspects sought to be raised in these petitions would stand addressed and learned counsel for the petitioners have assured us that their objective is not to litigate for the sake of it. 9. There are interim orders enuring for benefit of petitioners in certain cases while they may not have been formally passed in some other cases. The interim orders dated 26.5.2010 as clarified by order dated 28.10.2010 in Civil Writ Petition No. 3688 of 2010 would ensure for benefit of all the petitioners during the period this exercise is carried out. Learned Advocate General has also assured us that in the integrum period, no penal action on the criminal side under the Act would be taken and the issue would be kept pending. 10. In view of the aforesaid facts and circumstances, we are not expressing any opinion one way or the other on the matter raised in the petition and dispose of the petitions in the aforesaid terms. We give liberty to the petitioners to revive the petitions in view of the apprehensions expressed by learned counsels that if nothing turns out of the exercise sought to be carried on then such a course of action should be permissible. Copy of the order dasti under signatures of the Bench Secretary of this Court.