The court set aside an order attaching the petitioner's property under the Immoral Traffic (Prevention) Act, 1956, holding that the order had lost its validity as the statutory maximum period of three years had expired.
The impugned order was set aside as it had ceased to have effect due to the expiry of the three-year period under Section 18.
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Court No. - 21
Case :- WRIT - C No. - 38587 of 2016
Petitioner :- Smt. Satyabhama Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Daya Shankar Mishra,Chandrakesh Mishra Counsel for Respondent :- C.S.C.,Raj Kumar Kesari
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Rohit Ranjan Agarwal,J.
The petitioner has instituted this writ proceeding for issuance of a writ of certiorari to quash the order passed by the Sub Divisional Magistrate, respondent no.2., purported to be under Section 18 of the Immoral Traffic (Prevention) Act, 1956. Briefly, on the basis of some information received, the Sub Divisional Magistrate, Allahabad respondent no.2 had issued a notice on 30.4.2016. Under Section 7 of the Immoral Traffic (Prevention) Act, 1956 (for short 'Act, 1956'), when no reply was submitted by the petitioner in response to the said notice, order has been passed under Section 18 of the Act, 1956 to seize/attach her property.
Aggrieved by the said order, petitioner preferred this writ petition, inter alia on the ground that the allegation made in the notice and the impugned order are totally incorrect. It is stated that the said house was purchased by the petitioner vide a registered sale deed on 4.8.2005 from Shiv Prakash, Umesh Chandra, Anil Kumar and Sunil Kumar . The petitioner has denied the allegations made in the notice that the house is being used for immoral purposes. In the writ petition, petitioner has stated that she
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is in possession of the said house for more than 30 years as a tenant and, thereafter she has purchased the property through sale deed. The name of the petitioner has been recorded in the municipal record in portion of 56C/53C. The petitioner is paying house tax and other taxes. In support of the said statement, she has brought on record the receipts of the aforesaid tax.
The petitioner has vehemently denied the allegations that the house in portion is being used for immoral purposes. It has also been mentioned that on 1.5.2016, a raid was conducted in some other premises and the respondents have illegally put the lock in the premises of the petitioner. Petitioner has denied that any women was recovered from her premises.
A counter affidavit has been filed. The stands taken in the counter affidavit is that one Public Interest Litigation No.49678 of 2015 (Sunil Chaudhari Vs. State of U.P. and others) was filed in this Court, wherein the Court's attention was drawn in the immoral activities which are conducted in the part of the city. On the said public interest litigation, Court has passed certain direction vide its order dated 13.1.2016. It is stated that in compliance of direction of this Court, Commissioner, Allahabad constituted a Committee on 12.2.2016 under the District Magistrate, Allahabad to look into the matter. A copy of the said order is on record. It is averred in the counter affidavit that thereafter, the District Magistrate called a meeting of the authority concerned on 24.2.2016 and had given necessary instructions. The LIU has sent a list of the houses on the basis of letter sent by the NGO (Mr. Sunil Kumar), who was petitioner in the
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public interest litigation.
It is stated that Sub Divisional Magistrate, on the basis of the information gathered by NGO and LIU, issued a show cause notice on 23.4.2016 to the owner of the house in area concerned. It is also stated that an F.I.R. No.119 of 2016 under Section 3,4,5,6,7 and 9 of the Immoral Traffic (Prevention) Act, 1956 was registered and a charge-sheet have also been submitted in the trial Court.
It is also averred in the counter affidavit that when a raid was conducted on 1.5.2016 some persons namely Laxmi, Arti Sawant and children Chirag, Nazuk, Anushka and Anil were recovered from 56/73, Meerganj, Allahabad. Their statement was recorded under Section 161 Cr.P.C. Some of the persons recovered, has made a statement against the petitioner. A rejoinder affidavit has been filed, wherein the said statement has been denied.
We have heard learned Counsel for the petitioner, Sri Daya Shankar Mishra, learned Standing Counsel, Sri Hari Keshav Singh and Sri Raj Kumar Kesri, who has filed impleadment application on behalf of NGO.
Sri Mishra, learned Counsel for the petitioner submits that petitioner has not received any notice dated 30.4.2016; the allegations made in the impugned order are ex-parte and without furnishing any opportunity to the petitioner. A false allegations have been made regarding the illegal use of the house in contravention of the provision of the Act, 1956. He further submits that in view of Sub-section 3 of Section 18, the impugned order cease to have any effect, hence the respondents have illegally attached the house of
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the petitioner and has put a lock on the premises.
Learned Standing Counsel submits that on the basis of the F.I.R., an investigation was conducted and the charge-sheet has been filed before the trial Court. He has received the instruction that the trial is going on and is likely to be concluded shortly.
Sri Kesri, learned Counsel for respondents has drawn our attention to some statement recorded under Section 161 Cr.P.C. and submitted that since the trial is going on, no interference is called for in this proceeding.
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.
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:-
"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 of72 [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
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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-
(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 year73 [,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.
(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.
(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 the74 [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 subsection (1) shall also be set aside.
(4)Notwithstanding anything contained in any other law for the time being in force, when a magistrate passes an
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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.
(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 subsection (2) of section 7, as the case may be, and punished accordingly."
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 Section 18 provides for maximum period of one year or three years, as the case may be, which has already expired.
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.
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.
Sri Kesri, learned Counsel has very fairly admitted that in view of Sub-section 3 of Section 18, validity of the
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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.
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.
Accordingly writ petition is allowed , impugned order is set aside.
No order as to costs.
Order Date :- 15.5.2019 S. Singh
1 issue framed by the court
Whether the order attaching the petitioner's property ceased to have effect due to expiration of the three-year period under Sub-section 3 of Section 18.
1 provisions across 1 enactments
Smt. Satyabhama
State Of U.P.
Pradeep Kumar Singh Baghel
Rohit Ranjan Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
