Dhansingh Gopal Chauhan vs State Of Maharashtra
2005 Latest Caselaw 590 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Since common questions of law and facts arise in both the petitions, they were heard together and are being disposed of by this common judgment.

2. Having heard at length the learned Advocate for the petitioners and the learned APP on behalf of the respondents, rule in both the petitions, and by consent, the rule is made returnable forthwith. Perused the records.

3. In both the petitions, the orders dated 21st August, 2004 purportedly issued in exercise of powers under Section 18(1) of the Immoral Traffic (Prevention) Act, 1956, hereinafter called as the "said Act", are sought to be challenged on the ground that the same are beyond the scope of the provision of law comprised under Section 18 of the said Act and, therefore, beyond the powers conferred upon the authority who has passed those orders as well as that the orders apparently disclose non-application of mind by the said authority while issuing the said orders.

4. Though the petitions relate to the two different premises, all other facts relevant for the decision in the maters are common. While in the Criminal Writ Petition No. 865 of 2005 the premises comprised of is Room No. 1074, the Criminal Writ Petition No. 866 of 2005 relates to the Room No. 1063, and both the rooms are situated at Adarsh Nagar, New Link Road, Behind Mushtaq Petrol Pump, Oshiwara, Mumbai - 400 102. It appears that, according to the police report, when the search of the said premises was carried out under Section 15 of the said Act, about 7 girls, out of which 2 were minor in age, were stated to have been rescued therefrom. Consequently, the show cause notices dated 19th April, 2004 came to be issued under Section 18(1) of the said Act to the petitioners. The petitioner in Criminal Writ Petition No. 865 of 2005 submitted his reply dated 17th May, 2004, while the petitioner in the Criminal Writ Petition No. 866 of 2005 submitted his reply dated 24th April, 2004 to the Commissioner of Police, Mumbai, and after hearing the parties on 21st June, 2004, the respondent-Commissioner of Police, who had issued the show cause notices against the petitioners, came to the finding that he was satisfied that the premises were being used as the brothel. The Commissioner of Police, therefore, by the impugned order directed closure of the brothel, eviction of the petitioners from the said premises within 7 days from the date of receipt of the order by them and had further directed that there shall be no letting out of the premises during the period of two years from 21st August, 2004 without prior approval by the Commissioner of Police, with a further warning that any lease or agreement by the petitioners/owners and the tenant Shri Jainandan @ Sagar Prayag Yadav in respect of the said premises without such approval would be void and inoperative.

5. While assailing the impugned orders, the learned Advocate for the petitioners submitted that the power of attachment available under Section 18(1) of the said Act does not empower the authority to evict the owner from the premises nor it empowers the authority to dispossess the owner from such premises. The closure spoken of under the said provision of law relates to the brothel and not to the premises, while the eviction permissible is that of the occupier using the premises as a brothel and, therefore, the orders directing eviction of the petitioners who are admittedly the owners or closure of the premises are bad in law. He had further submitted that the very fact that, on one hand the authority has directed eviction of the owner from the premises and closure thereof and on the other hand imposed the condition of prior approval for letting out of the premises during the period of two years, discloses non application of mind, inasmuch as that if the owner is evicted and dispossessed from the premises, question of granting lease by the owner in respect of the premises does not arise. On the other hand, the learned APP has submitted that the very power of attachment under Section 18(1) of the said Act discloses the power of the authority to evict the person using the premises for immoral purposes and it would not exclude the owner of the premises. Further drawing attention to the expression "to be restored to the owner" in the proviso to Section 18(1), the learned APP has submitted that the occasion for restoration of the premises can arise only when the owner had been previously dispossessed from the premises and that itself discloses power to the authority to dispossess the owner from the premises in a given situation. He has further submitted that mere imposition of condition against letting out of the premises without prior approval of the authority would not lead to a conclusion of non-application of mind by the authority while passing the impugned orders.

6. Section 18(1) of the said Act provides thus :--

"A magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred metres of any public place referred to in Sub-section (1) of Section 7, is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor or landlord of such house, room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person incharge of such house, room, place, or portion to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof, and if, after hearing the person concerned, the magistrate is satisfied that the house, room, place or portion is being used as a brothel or for carrying on prostitution, then the magistrate may pass order --

(a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place or portion;

(b) directing that before letting it out during the period of one year [or in a case where a child or minor has been found in such house, room, place or portion during a search under Section 15, during the period of three years,] immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the magistrate;

Provided that, if the magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, he may cause the same to be restored to the owner, lessor or landlord, or the agent of the owner, lessor or landlord, with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper user therein."

Plain reading of Sub-section (1) of Section 18 of the said Act would, therefore, disclose that whenever the Magistrate is satisfied that any premises are being used as the brothel or for carrying on prostitution, then he can order eviction of the occupier as also he can direct that the premises should not be let out without his prior approval during the period of one year, or in a case of minor being found in such premises during a search under Section 15 of the said Act, for the period of three years. The power of eviction of the occupier is contemplated under Clause (a) of Sub-section (1) of Section 18, while the power to issue direction imposing restriction on letting out the premises for a certain period is contemplated under Clause (b) thereof. However, the distinguishing factor between the two clauses is that while former relates to the occupier, latter relates to the owner or lessor. The eviction spoken of under Clause (a) thereof is not of the owner or lessor but of the occupier of the premises. The term "occupier" has not been defined under the said Act. However, considering the scheme of the said Act, any person who actually possesses the premises or is found occupying the premises or having a brothel or carrying on prostitution would be the "occupier" for the purpose of the said Act. Undoubtedly, the term "occupier" therefore will have a wide meaning. It can even include the owner of the premises. However, for that purpose, it would not be sufficient to have the person to be the owner, but he should be the occupier within the meaning of the said expression under the said provision of law. It would be only in case of the owner himself running the brothel or carrying on prostitution, then he could be said to be the occupier and not otherwise. Mere ownership right will not be a criteria to decide as to who is the occupier within the meaning of the said expression under the said provision of law. The occupier, under the said provision of law, has essentially to be the one who runs or manages the brothel or carries on the activities of prostitution in the premises.

7. As far as the imposition of condition relating to the prior approval for letting out of the premises is concerned, the provision of law specifically refers to such direction being required to be given to the owner, lessor or landlord or agent of the owner, lessor or landlord. In other words, direction in that regard can go only to the person who is lawfully entitled to create a lease or leasehold interest in the premises and not to any other person. The provisions of law comprised under Clauses (a) and (b) of Sub-section (1) of Section 18 of the said Act, therefore, as rightly submitted by the learned Advocate for the petitioners, are very clear and the orders of eviction spoken of under Clause (a) cannot be directed to the owner unless the Magistrate is satisfied that the owner himself is the occupier being the person running the brothel or carrying on prostitution in the premises.

8. As regards the proviso to Sub-section (1) of Section 18 of the said Act, it is true that it refers to the expression "to be restored to the owner". However, the said expression is preceded by the provision of law which states that if the Magistrate finds that the owner, lessor or landlord or their agent to be innocent of the improper user of the premises, and certainly therefore he may cause the same to be restored to the owner with a direction that the house, room, place or portion shall not be leased out for any improper use. The restoration spoken of in this proviso is on account of eviction of the occupier. Once it is found that the premises are occupied by a person who is running a brothel or carrying on prostitution, and such an occupier who runs a brothel or carries on prostitution is evicted from the premises in exercise of the powers under Clause (a) of Section 18(1) of the said Act, obviously, the premises will have to be attached for having improperly used, and on such attachment, when the notices are issued to the owner under the main body of Sub-section (1), and the Magistrate on hearing the owner or lessor or landlord of such premises is satisfied about his or her innocence of the improper use thereof, the premises are required to be restored to the owner while imposing condition in terms of Clause (b) of the said Sub-section (1) of Section 18 of the said Act. That itself does not lead to a conclusion that the authority can evict the owner from the premises. We hasten to record that this will also not mean that the owner cannot be evicted in any case. We have already observed above that in the cases where the owner happens to be also the occupier running a brothel or carrying on prostitution in the premises, certainly the power under Clause (a) of Sub-section (1) of Section 18 of the said Act can be exercised in relation to the owner also.

9. It is to be noted that Article 300A of the Constitution of India specifically provides that nobody can be deprived of his property without due process of law. Once it is seen that the Section 18 nowhere empowers the authority to dispossess the owner from the premises merely because the premises have been used as the brothel or for carrying on prostitution, the authority cannot assume the power to itself which is not statutorily vested in it, and that too by interpreting certain words or phrases from the statutory provisions dehors the context in which they have been used. The expression "to be restored to the owner" in the proviso to Sub-section (1) of Section 18, therefore, would refer to an occasion where the occupier is evicted from the premises in terms of the Clause (a) of Sub-section (1) of Section 18 and the property is therefore attached. Such a property is necessarily to be returned to the owner albeit requiring him to observe the condition of prior approval for letting out of the premises for a specified period. He can also be required to ensure that the premises are not let out for improper use, and in case of violation of such assurance, certainly he can be prosecuted and there is a clear provision in that regard incorporated under Sub-section 18(5) of the said Act. Sub-section (5) of Section 18 provides that when the owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under Clause (b) of Sub-section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that sub-section, he shall be deemed to have committed an offence under Clause (b) of Sub-section (2) of Section 3 or Clause (c) of Sub-section (2) of Section 7, as the case may be, and punished accordingly.

10. It is also pertinent to note that Sub-section (1) of Section 18 nowhere provides any period for which the property can remain attached or the period for which it can remain closed or the period for which the owner can be divested of the possession or control over such premises. On the contrary, the proviso specifically speaks of restoration of the premises to the owner, while the Clause (a) speaks of eviction of the occupier and the main section empowers attachment of the improperly used premises. Proper and harmonious reading of Sub-section (1) along with the proviso would, therefore, disclose that the power of attachment is consequent to the eviction of the occupier from the premises improperly used for running the brothel or carrying on prostitution therein and the power of restoration under the proviso is to be exercised immediately after disposal of the show cause notice and the entire proceedings should not take undue period of time and are to be disposed of as expeditiously as possible and without causing unwarranted loss to the owner in respect of the premises.

11. The learned Advocate for the petitioners is also justified in contending that if the owner itself is evicted from the premises and is dispossessed from the premises, the question of granting lease of such premises cannot arise. The lease contemplates a creation of interest in the demised premises. Being so, the owner whose ownership rights are curtailed on account of his eviction cannot be visualised to have occasion to lease out the premises and for the same reason, the question of imposing condition for prior approval of the lease of such premises cannot arise, till and until the owner is restored with the possession of the premises. The orders of eviction of the owners from the premises and simultaneous imposition of condition for prior approval for letting out the premises by the owners, indeed, as rightly submitted by the learned Advocate for the petitioners, disclose non-application of mind by the concerned authority while passing the impugned orders as far as it orders the eviction of the owners.

12. For the reasons stated above, therefore, the orders which speak of eviction of the owners from the premises merely on the ground that the premises were used for running the brothel or for carrying on prostitution cannot be sustained, as no such power is contemplated under Section 18(1) of the said Act. However, once it is not disputed that the authority had arrived at the finding about the premises having been used for running the brothel or for carrying on prostitution therein, certainly the orders imposing condition of prior approval for grant of lease of the premises for the specified period cannot be found fault with. The non-application of mind in this regard will have to be held in relation to the orders of eviction of the owner and not in relation to the condition imposed upon the owners regarding the need for prior approval in case of the lease of the premises for the specified period.

13. In the result, therefore, the petitions partly succeed. The impugned orders, to the extent the same direct eviction of the petitioners from the premises, are hereby quashed and set aside. There is no justification for interference in the impugned orders as far as they relate to the condition of prior approval for leasing out of the premises or for inducting any third party therein. The rule in both the petitions is made absolute in above terms with no order as to costs.