Allowed

Smt. Phoola Devi Alias Tara Gawde v. State of U.P. and 4 Others

Allahabad HC15 May 2019WRIC/35558/2016

Case brief

AI extract

What is this about?

Hon'ble Justice Pradeep Kumar Singh Baghel and Rohit Ranjan Agarwal allowed the writ petition against an eviction order dated 30.04.2016, holding that the order ceased to have effect under Section 18(3) of the Act, 1956 after the expiry of the three-year period. The court specifically noted that no opinion was expressed on the merits of the case.

What did the court decide?

Impugned order dated 30.04.2016 set aside on the ground that the period under Section 18(3) has expired.

Smt. Phoola Devi Alias Tara Gawde Vs State of U.P. and… — Property and Title | Allahabad HC (2019)

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Court No. - 21

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Case : - WRIT - C No. - 35558 of 2016 Petitioner :- Smt. Phoola Devi Alias Tara Gawde Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Chandrakesh Mishra,Daya Shankar Mishra,Raj Kumar Kesari

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Counsel for Respondent :- C.S.C.

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Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Rohit Ranjan Agarwal,J.

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This Court in a matter on similar facts and circumstances i.e. Writ - C No. - 38587 of 2016 (Smt. Satyabhama Vs. State Of U.P. And 4 Others) has passed the following order today:

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"We have considered rival submissions and perused the material on record. So far as the notice dated 23.4.2016 is concerned, we do not usually enter into the said controversy as the petitioner has denied the receiving of the said notice.

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Be that as it may, Sub-section 3 of Section 18 clearly states that in case, it is found that the house is used for immoral purposes, the order passed by the Magistrate shall cease to have effect after expiry of one year or three years. For the sake of convenience, Section 18 is extracted below:-

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" 18. Closure of brothel and eviction of offenders from the premises.— (1) 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 72 [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 orders-

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

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(b) directing that before letting it out during the period of one year 73 [,or in a case where a child or minor has been found in such house,

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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:

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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.

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(2)A court convicting a person of any offence under section 3 or section 7 may pass order under sub-section (1) without further notice to such person to show cause as required in that sub-section.

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(3)Orders passed by the magistrate or court under subsection (1) or sub-section (2) shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal and the said orders shall cease to have validity after the 74 [expiry of one year or three years, as the case may be]: Provided that where a conviction under section 3 or section 7 is set aside on appeal on the ground that such house, room, place or any portion thereof is not being run or used as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub-section (1) shall also be set aside.

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(4)Notwithstanding anything contained in any other law for the time being in force, when a magistrate passes an order under sub-section (1), or a court passes an order under sub-section (2), any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.

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(5)When an 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."

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As we have seen, Section 18 clearly provides that before passing the order, the opportunity shall be furnished to the owner of the house whether the notice has been served or not, does not call for any determination in the present case. In view of the fact, Sub-section 3 of

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Section 18 provides for maximum period of one year or three years, as the case may be, which has already expired.

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Sri Mishra, learned Counsel for petitioner has invited our attention to allegation that one girl namely Sine Sawant was recovered even in that case, she is not a minor as her age was found to be 23 years old.

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Sri Kesri, learned Counsel for respondent submits that some minor girls were also found in the premises. We are not interfering in that controversy as the matter is engaging attention of the Trial Court. In respect of the said disputed fact, even if it is assumed, that the allegations against the petitioner that some minor girls were also found, three years period have also expired on 30.4.2019.

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Sri Kesri, learned Counsel has very fairly admitted that in view of Sub-section 3 of Section 18, validity of the impugned order has ceased to have any effect. Learned Standing Counsel has also failed to satisfy that after expiry of three years in terms of Sub-section 3 of Section 18 there is no justification to attach the house of the petitioner.

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Accordingly, we find in view of Sub-section 3 of Section 18, the impugned order has lost its right of maximum three years and in terms of the said provisions, the impugned order has ceased to have any effect. Accordingly, the order impugned is set aside, however, we make it clear that this order will not prejudice the order passed by the trial Court in terms of Sub-section 2 of Section 18 of the Act, 1956. Moreover, we have not expressed our opinion on the merit of the case, we allowed only on the ground that the order has ceased to have its effect in terms of Sub-section 3 of Section 18.

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Accordingly writ petition is allowed, impugned order is set aside.

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No order as to costs."

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This writ petition is also allowed in terms of the order passed in Smt. Satyabhama (supra), extracted hereinabove. Accordingly, the order impugned dated 30.4.2016 is set aside, however, we make it clear that this order will not prejudice the order passed by the trial Court in terms of sub-section 2 of Section 18 of the Act, 1956. Moreover, we have not expressed our opinion on the merit of the case, we allow the petition only on the ground that the order has ceased to have its effect in terms of Sub-section 3 of Section 18.

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No order as to costs.

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Order Date : - 15.5.2019 S. Singh

Smt. Phoola Devi Alias Tara Gawde v. State of U.P. and 4 Others

Case brief

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Smt. Phoola Devi Alias Tara Gawde v. State of U.P. and 4 Others

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