Dismissed

Bharat Bhushan Thapar v. Union of India and 4 Others

Allahabad HC25 Jul 2019WRIC/23672/2019

Case brief

AI extract

What is this about?

The Court rejected a writ petition seeking direction to summon Aadhaar records alleging fraud. The Court held the allegations were unsubstantiated and dismissed the petition, advising the petitioner to utilize the complaint mechanism under amended Section 47.

What did the court decide?

The writ petition was rejected and stood finally disposed of, with liberty to seek remedy under Section 47.

Bharat Bhushan Thapar Vs Union of… — Constitutional and Fundamental Rights | Allahabad HC (2019)

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A.F.R.

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Court No. - 32

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Case :- WRIT - C No. - 23672 of 2019 Petitioner :- Bharat Bhushan Thapar Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Hridesh Batra,Anurag Khanna (Senior Adv.),Himadari Batra Counsel for Respondent :- Sabhajeet Singh

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Hon'ble Shashi Kant Gupta,J. Hon'ble Saurabh Shyam Shamshery,J.

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Facts of the present case as narrated in the writ petition are as follows:-

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(i) Respondent nos.4 and 5 were husband and wife and they brought a plot no.869, measuring area of 521 square yard, situated at Colony known as Shalimar Garden, Extention-1, Village Pasonda, Loni, District Ghaziabad, through a sale deed dated 19.02.1981 from company known as Mahalakshmi land & Finance Pvt Ltd.

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(ii) As per the petitioner’s case, Shri Jai Prakash Gupta (respondent no.4) and Smt Kiran Bedi Gupta (respondent no.5) died on 12.12.1984 and 22.12.2001 respectively.

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(iii) The said plot was sold to Smt. Raksha Devi Thapar (mother of the petitioner) and Kumari Madhu Thapar (sister of the petitioner) by a registered sale deed dated 12.02.1990 by the eldest son of Shri Jai Prakash Gupta through power of attorney.

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(iv) One Shri Pramod Kumar Singh Chauhan along with some anti social persons when tried to disposses the petitioner from the said plot an FIR was also lodged against him on 04.11.2012.

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(v) The petitioner also filed a suit bearing Suit no.2603 of 2012 against Shri Pramod Kumar Singh Chauhan for seeking permanent injunction for restraining him from interfering in the peace full possession of the petitioner on the said plot and the Additional Civil Judge (Senior Division) Ghaziabad granted permanent injunction against him on 13.12.2012. Hence Shri Pramod Kumar Singh Chauhan challenged the same, by way of filling FAFO No.97 of 2014 and the court below vide order dated 09.01.2014, stayed the order dated 13.12.2012. The FAFO is still pending for adjudication before the Court.

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(vi) During the pendency of the said FAFO, Shri Pramod Kumar Singh Chauhan, being hand in glove with Shri Anil Kumar Agarwal by setting up some imposters as Shri Jai Prakash Gupta (respondent No.4) and Smt Kiran Devi Gupta (respondent No.5) sold the plot-in-question to one Smt Rekha Agarwal wife of Shri Anil Kumar Agarwal.

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(vii) As soon as the petitioner came to know about the aforesaid fraud, he lodged an FIR dated 02.03.2015 bearing no. 222 of 2015, under Sections 420, 467, 468, 471, 506 and 120B of IPC against Shri Pramod Kumar Singh Chauhan, Anil Agarwal, Rekha Agarwal, Suresh Chand Mittal and Km. Disha Srivastava alleging that these accused have fraudulently executed the sale deed by posing them as Jai Prakash Gupta and Kiran Gupta.

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(viii) After investigation, charge-sheet was submitted on 11.06.2015 and the charges were framed under Sections 420, 467, 468, 471, 120-B of IPC.

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(ix) Respondent nos. 4 and 5 had filed a Criminal Revision before this Court, which is still pending. The petitioner came to know that while filling the said criminal revision, the respondent nos. 4 and 5 had attached the copy of Aadhaar Card bearing no. 642116310070 in the name of Shri Jai Prakash Gupta and Aadhaar Card No. 3259534296 in the name of Shri Kiran Bedi Gupta.

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(x) On inquiry, petitioner came to know that the Aadhaar Card No. 3259534296 was issued to one Smt. Roshanara, however, during upgradation it was fraudulently made in the name of Smt. Kiran Prakash Gupta. Similarly, the other Aadhaar Card No.642116310070 was earlier issued to one Ashok son of Rampal however, during upgradation, name on the Aadhaar Card was changed to Jai Prakash Gupta. Hence, the present writ petition.

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Shri Anurag Khanna, Senior Advocate assisted by Shri Himadari Batra, learned counsel for the petitioner submitted that although respondent nos. 4 and 5 have already died, still the, Aadhaar Cards were fraudulently prepared/upgraded in the name of the respondent nos. 4 and 5 in order to execute a sale deed. Learned Senior Counsel further submitted that the petitioner has approached the Aadhaar Authority to give details of the

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abovementioned two Aadhaar Cards, however, Aadhaar Authority have refused to supply the same as being barred by Section 33 Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred as Aadhaar Act). Learned Senior Counsel has also relied upon certain informations received from Election Commission of India regarding voter identity card of respondent nos.4 and 5.

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Learned Senior counsel further submitted that prior to the amendment in the Aadhaar Act, word "District Judge" was mentioned in Section 33 of the Aadhaar Act which is now substituted by "Judge of High Court", therefore, the petitioner has no other remedy to file the present writ petition before this Court in order to seek direction from this Court for calling the records of these Aadhaar Cards from the Aadhaar Authority in order to ascertain the correct fact.

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Learned Senior Counsel further submitted that Section 47 of the Aadhaar Act dealing with cognizance of offence has also been amended and now even ‘Individual’ is also authorised to file complaint before the competent court. He has also relied upon the judgment passed by Hon'ble Supreme Court in the matter of K.S. Puttaswamy (Retired) And Another Vs. Union of India and others reported in (2019) 1 SCC 1, in order to show that certain modifications were recommended by the Hon'ble Supreme Court to make this Act more transparent. Learned Senior Counsel has vehemently argued that it is a fit case where this Court could call the records and verify the allegations made by the petitioner and on the basis of said verification, the petitioner could lodge a complaint.

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On the other hand, learned counsel appearing on behalf of the respondents submitted that in pursuance of the judgment passed by Hon'ble Supreme Court K.S. Puttaswamy (Supra), certain amendments have been placed before the Parliament through the Aadhaar and other Laws Amendment Act, 2019 which has been passed by both the Lok Shabha and Rajya Sabha and the President have given accent on 23.07.2019, and as such, now an ‘individual’ can also make a complaint before the competent court for any offence punishable under Sections 34 or 35 or 36 or 37 or 40 or 41 of the Aadhaar Act. Therefore, there is no need to exercise the powers

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conferred by this Court granted under Section 33 of the Aadhaar Act to summon the records as presently allegations made by the petitioner are not established even prima facie and there is no material to substantiate the

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averments mentioned in the writ petition.

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Heard learned counsel for the parties and perused the record.

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In order to appreciate the rival submissions advanced by learned counsel for the parties, relevant provisions of the ‘Aadhaar Act’ as amended are mentioned hereinafter;-

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“28. Security and confidentiality of information-

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(1) The Authority shall ensure the security of identity information and authentication records of individuals.

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(2) Subject to the provisions of this Act, the Authority shall ensure confidentiality of identity information and authentication records of individuals.

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(3) The Authority shall take all necessary measures to ensure that the information in the possession or control of the Authority, including information stored in the Central Identities Data Repository, is secured and protected against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage.

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(4) Without prejudice to sub-sections (1) and (2), the Authority shall

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(a) adopt and implement appropriate technical and organisational security measures;

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(b) ensure that the agencies, consultants, advisors or other persons appointed or engaged for performing any function of the Authority under this Act, have in place appropriate technical and organisational security measures for the information; and

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(c) ensure that the agreements or arrangements entered into with such agencies, consultants, advisors or other persons, impose obligations equivalent to those imposed on the Authority under this Act, and require such agencies, consultants, advisors and other persons to act only on instructions from the Authority.

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(5) Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone:”

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“ Section 33. Disclosure of Information in certain Cases:- ((1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or subsection (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge:

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Provided that no order by the court under this sub-section shall be made without giving an opportunity of hearing to the Authority. (2) Nothing contained in sub-section (2) or sub-section (5) of section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India

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specially authorised in this behalf by an order of the Central Government:

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Provided that every direction issued under this sub-section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect:

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Provided further that any direction issued under this sub-section shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.

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Amended provision:-

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In section 33 of the principal Act,— (i) in sub-section (1),—

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(a) for the words "District Judge", the words "Judge of a High Court" shall be substituted;

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(b) in the proviso, after the words "hearing to the Authority", the words "and the concerned Aadhaar number holder" shall be inserted;

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(c) after the proviso, the following proviso shall be inserted, namely: —"Provided further that the core biometric information shall not be disclosed under this sub-section.".

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(ii) in sub-section (2), for the words "Joint Secretary", the word "Secretary" shall be substituted.

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Penalty for impersonation at time of enrolment.- Whoever impersonates or attempts to impersonate another person, whether dead or alive, real or imaginary, by providing any false demographic information or biometric information, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to ten thousand rupees or with both.

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Cognizance of offences- (1) No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.

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(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act.”

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Amended provision-

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In Section 47 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:-

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“Provided that the court may, on a complaint made by an Aadhar number holder or individual take cognizance of any offence punishable under Section 34 or 35 or 36 or 37 or 40 or Section 41.”

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The Hon'ble Supreme Court in the matter of K.S. Puttaswamy (Supra) upheld the constitutional validity of Aadhaar Act however, some of the provisions were struck down/read down and clarified. For the purpose of

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the present case. Following excerpts of the judgment are relevant from the judgment passed by the Apex Court :-

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Dr. A.K. Sikri, J:-

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" 513.5. Section 33(1) of the Act prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. We have held that this provision is to be read down with the clarification that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing. If such an order is passed, in that eventuality, he shall also have right to challenge such an order passed by approaching the higher court. During the hearing before the concerned court, the said individual can always object to the disclosure of information on accepted grounds in law, including Article 20(3) of the Constitution or the privacy rights etc.

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513.6. Insofar as Section 33(2) is concerned, it is held that disclosure of information in the interest of national security cannot be faulted with. However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with. We may point out that such provisions of application of judicial mind for arriving at the conclusion that disclosure of information is in the interest of national security, are prevalent in some jurisdictions. In view thereof, Section 33(2) of the Act in the present form is struck down with liberty to enact a suitable provision on the lines suggested above

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513.7. Insofar as Section 47 of the Act which provides for the cognizance of offence only on a complaint made by the Authority or any officer or person authorised by it is concerned, it needs a suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated."

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Ashok Bhushan, J:-

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" 789. Section 47 provides as follows:

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"47. Cognizance of Offence (1) No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.

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(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act."

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The limitation as contained in Section 47 in permitting taking cognizance of any offence punishable under the Aadhaar Act only on a complaint made by the authority or any officer or person authorised by it, has legislative purpose and objective, as noticed above. We thus do not finnd any unconstitutionality in Section 47 of the Aadhaar Act."

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The modifications/suggestion suggested by the Supreme Court has been taken care by the amendments made through Amendment Act 2019 which has been passed by the Parliament and thereafter assented by the President.

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The Right of Privacy is one of the inherent rights granted by Part III of the Constitution. Privacy is the element of human dignity. Right of Privacy cannot be abridged without just, fair and reasonable law. The Hon’ble Supreme Court has opined that the Aadhaar Act has satisfied the triple test laid down in order to adjudge the reasonableness of the invasion to to privacy.

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From the facts as narrated in the writ petition, it is evident that the submissions made in the writ petition are not sufficient to make out a case under Section 33 of the Aadhaar Act. Submission are not even substantiated by any documentary evidence. The only averments mentioned in the writ petition on the issue is in paragraph 19, 20 and 21, which are mentioned hereinafter:-

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“19. That it is appropriate to mention here that respondent no.4 and 5 in the aforementioned criminal revision has attached Aadhaar Card No.642116310070 in the name of Shri Jai Prakash Gupta and Aadhaar Card No.325953054296 by the name of Shri Kiran Bedi Gupta.

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That it is further submitted that the petitioner his personal contacts came to know that the Aadhaar Card No. 325953054296 was issued to Smt. Roshanara w/o Abdul Jabbar having date of birth shown as 1.1.1968 in the year 2011, the said Aadhaar Card was thereafter updated and the name of Shri Roshanara was changed to Shri Kiran Bedi Gupta and the name of her husband was changed to Shri Jai Prakash Gupta and even the date of birth was changed from 1.1.1968 to 17.5.1963.

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That it is relevant to mention here that the Aadhaar Card No.325953054296 updated to Smt. Kiran Bedi Gupta is being used by her to represent herself as Smt. Kiran Devi Gupta wife of Shri Jai Prakash Gupta. ”

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The averments made in the aforementioned paragraphs are only bald allegations and cannot be considered to be sufficient for the purpose of Section 33 of the Aadhaar Act.

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The discloser of information in certain cases, as provided under Section 33 of Aadhaar Act which has now been made more reasonable by recent amendment is based on the reasoning that the discloser of the such information can be objected by the person concerned and no order could be passed without hearing the Aadhaar Authority. Aadhaar Act provides ‘protection of information’, restriction of sharing information under Sections 28 and 29 respectively. Section 30 provides that biometric information shall be deemed to be ‘sensitive information’. Therefore, these provisions shall be taken into consideration before passing any order under Section 33 of the Aadhaar Act. In order to exercise power under Section 33 of Aadhaar Act, strong case has to be made out by the aggrieved person. However, in the present case, the petitioner has not able to made out a case for calling the record under Section 33 of the Aadhaar Act. The bald allegations made in para 19, 20 and 21 of writ petition are not sufficient for the purpose. Therefore, we are of the view that in the present facts and circumstances, jurisdiction under Section 33 of Aadhaar Act cannot be exercised by this Court at this stage.

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Section 33 of the Aadhaar Act prohibits discloser of information without prior order of ‘Judge of High Court’ and now even an individual has a right to be heard and he can oppose discloser on certain grounds including Article 20(3) of the Constitution of India. These strict provisions are for keeping information secret and to upheld the Right of Privacy. Therefore, before an exercise of power under Section 33 of the Aadhaar Act, the Court has to ascertain whether in the facts and circumstances of the case there exists a very strong case to exercise such power.

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It is also relevant to note here that Shri Jai Prakash Gupta and Shri Kiran Bedi Gupta, who are since deceased as per the case of the petitioner, have been made party in the present writ petition as respondent Nos. 4 and 5 respectively therefore, the petition is also defective on the ground of misjoinder.

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It may be further noted that amended Section 47 of the Aadhaar Act now provides right to even an ‘individual’ to make a complaint before

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the competent court regarding commission of offence punishable under the Aadhaar Act. However, the petitioner has not availed such remedy till date.

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In view of the above discussions, the present writ petition is liable to be rejected at this stage, with the liberty to the petitioner, if so advised to seek remedy as provided under Section 47 of the Aadhaar Act, to file a complaint before the competent court in accordance with law. With this observation, this petition stands finally disposed of . Order Date :- 25.7.2019

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A. Dewal

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(Saurabh Shyam Shamshery, J.) (Shashi Kant Gupta, J.)

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Bharat Bhushan Thapar v. Union of India and 4 Others

Case brief

What is this about?

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Bharat Bhushan Thapar v. Union of India and 4 Others

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