Allowed

Harishchandra Vithoba Kolpate v. State of Maharashtra and Anr.

Bombay HC13 Sept 2013WP/3095/2013

Case brief

AI extract

What is this about?

High Court quashed the eviction and closure order passed under the Immoral Traffic (Prevention) Act, ruling that the authority failed to apply its mind to the petitioner's written reply and the distinction between owner and licensee roles.

What did the court decide?

Impugned order of eviction and closure quashed and set aside; seal removed within two weeks.

Harishchandra Vithoba Kolpate Vs State of… — Pension and Retirement Benefits | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO. 3095 OF 2013

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Harishchanra Vithoba Kolpate. ....Petitioner Versus State of Maharashtra and another. ....Respondents

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Mr. V. M. Thorat a/w Mr. Rajendra Shahasane for the Petitioner. Mrs. A. S. Pai, APP for the Respondent-State. Mr. Sanjay Salukhe, Police Inspector is present.

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CORAM: S. C. DHARMADHIKARI & G. S. PATEL, J.J.

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DATED : SEPTEMBER 13, 2013.

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P.C.:

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This is the second occasion on which the Writ Petitioner

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before this Court had to file proceedings and invoke this Court’s jurisdiction under Article 226 of the Constitution of India.

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It is the case of the Petitioner that he is in business and he is an owner, proprietor of Shivleela Restaurant and Bar (White House). He has been conducting the business after obtaining requisite licences and under the applicable law.

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He has averred in the Writ Petition that considering his

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advanced age and being unable to conduct the business effectively and properly, he executed an agreement on 25th June, 2010 with one Maheshwar Rama Desai. This is styled as Conducting Agreement under which the running business was handed over to the conductor for a period of 5 years and on the terms and conditions mentioned therein. We are not concerned with the terms and conditions of the agreement but, what has transpired thereafter is that the hotel premises were raided by the authorities and they rescued allegedly seven major girls. An F.I.R. was registered against Maheshwar Rama Desai and the allegations are then referred too. What has transpired is that a notice dated 31^st January, 2012 was issued calling upon the Petitioner to show cause as to why the premises should not be sealed for a period of one year on account of improper and illegal use. This notice was replied and the Petitioner sought inspection and copies of the documents based on which the authorities proceeded to invoke the provisions of Immoral Traffic (Prevention) Act, 1956. The Petitioner has stated that he was directed to remain present for a personal hearing on 11th December, 2012. However, the notice of that hearing was

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totally inadequate and the Petitioner could not effectively represent himself. An order was passed on 11th February, 2013, a copy thereof is at Annexure-E to this Writ Petition. A Writ Petition being Writ Petition No. 739 of 2013 was filed in this Court challenging this order and by its order dated 9^th April, 2013 a Division Bench of this Court set aside the order dated 11th February, 2013 and remitted the matter back to the Respondents for a fresh decision in accordance with law, after providing all documents to the Petitioner.

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Now, the Petitioner alleges non-compliance with the order and direction of this Court and is aggrieved by the fact that this Respondent passed an order on 2nd August, 2013, Annexure-I to the Writ Petition and in the following terms.

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“that I, Dr. Satyapal Singh, the Commissioner of Police, Brihan Mumbai, having the powers of the District Magistrate under Section 20(1)(2) & (5) of the Criminal Procedure Code, 1973 issue order as follows:

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An order for eviction and closer of a brothel is hereby being issued U/sec. 18(1)(a) of the Immoral Traffic (Prevention) Act, 1956 to Harishchandra Vithob Kolpate (Owner/Licensee), in respect of White House Bar & Restaurant, Near Paper Box

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Industries, MIDC Area, Andheri (E), Mumbai within 7 days from receipt of this order.

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An order is hereby issued U/sec. 18 (1)(a) of the Immoral Traffic (Prevention) Act, 1956 directing you that during the period of 1 year from date of this order you shall obtain my previous approval before leasing letting out or handing over the possession of the said premises to any person.

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U/sec. 18 (4) of the Immoral Traffic (Prevention) Act, 1956 any lease or agreement made by you regarding the premises ad the time, shall become void and inoperative from the date of this order for a period of 1 year.

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That if you, Harishchandra Vithoba Kolpate, fail to comply with the above directions as given to you under section 18 (1)(b) of the Immoral Traffic (Prevention) Act, 1956, appropriate legal action as specified under the said Act will be taken against you forthwith.”

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It is this order which is challenged before us and on several grounds.

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Mr. Thorat, learned counsel appearing on behalf of the Petitioner submitted that the Commissioner of Police, Brihan Mumbai proceeds on an erroneous footing that the Petitioner remained present before him on 4th July, 2013 but, there was no written reply to the show cause notice. Inviting our attention to a

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reply dated 29th April, 2013, a copy of which has been enclosed to the Writ Petition at Exhibit-H, it is submitted by Mr. Thorat that, this reply was very much before the Commissioner of Police when he passed the impugned order. Yet, there is no reference made to any of the paragraphs thereof or the stand of the Petitioner as reflected therein. The authority has proceeded to hold that the Petitioner only orally replied to the show cause notice and could not satisfy him that the premises were not being used as a brothel or for carrying on prostitution. Mr. Thorat, therefore, submits that the satisfaction arrived at is clearly vitiated by non-application of mind. Further, the authority failed to notice the distinction between the premises being used as a brothel or for carrying on activities which amount to sexually abusing the women and the difference therein has not been noted. Further, if there was a Conducting Agreement and which was in force from 2010, under which the physical possession of the premises was handed over to the conductor, then, as a owner of the premises the Petitioner could not be said to be responsible for the act of the conductor and, particularly, of the nature alleged. For all these reasons and inviting our attention to

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the proviso below sub-Section 1 of Section 18 of the said Act, Mr.

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Thorat submits that the impugned order deserves to be set aside.

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Mrs. Pai, learned APP appearing for the RespondentState submitted that the notice was issued to all and in terms of the requisite legal provisions. The Petitioner had sufficient notice of the allegations that he is required to meet, that he had not filed any reply. The reply dated 29th April, 2013 and based on which now the arguments are canvased is not on the file of the authority and there is no material to indicate the same. In such circumstances, the premises have been sealed because there is no cause shown by the parties on whom the show cause notice was served. She submits that the PITA serves a social purpose. If what is intended by Section 18 is to order closure of brothel and eviction of offenders

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from the premises, then, the purpose and object that is sought to be achieved must be taken note of. This is not confined to the brothel but, if 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, then, the authorities are empowered to issue notice on the lessor or landlord of such house,

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room, place or portion or the agent of the lessor or landlord and, equally, an occupier to show cause as to why there should not be an order directing eviction of an occupier and directing further in terms of clause (b) of sub-section 1 of Section 18 that the owner, lessor or landlord or the agent shall obtain previous approval of the Magistrate before letting it out for a period of one year.

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Mrs. Pai submits that the proviso was never invoked in this case and there was no material on record for its applicability. In these circumstances, such an order should not be interfered in this Court's jurisdiction under Article 226 of the Constitution of India.

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With the assistance of Mr. Thorat and Mrs Pai, we have perused the Petition with all annexures thereto. The Respondents have addressed us on the footing that the order of eviction and closure of a brothel has been passed.

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A perusal of the impugned order indicates that the Commissioner of Police exercising powers as an Executive Magistrate in the metropolitan area of Brihan Mumbai and further appointed as a Additional District Magistrate and the powers of

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District Magistrate being conferred upon him perused a proposal file initiated by Senior Inspector of Police, MIDC Police Station through the Senior Inspector of Police, Anti Trafficking Cell, Social Service Branch, Crime Branch, CID Mumbai for closure of the premises White House Bar & Restaurant, Near Paper Box Industries, MIDC Area, Andheri (E), Mumbai. What the show cause notice proceeds to allege is that on 3rd October, 2011 these premises were raided and searched under Section 15 of the Immoral Traffic (Prevention) Act, 1956 and where the premises were found to be used as a brothel by keeping 7 bar girls for prostitution who were rescued from the premises and a F.I.R. for the registered at the MIDC Police Station. It is stated in the notice that the Petitioner was arrested on 23^rd December, 2011 in the aforesaid offence as the licensee and the owner of the bar which used as brothel premises.

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It is elementary that in this case the Petitioner is proceeded against as a licensee and the owner. The Petitioner has claimed ownership rights in the property and has pointed out that the licence issued in his favour for conducting a Restaurant

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business does not mean that the premises could not have been given by him on conducting basis to a conductor or agent for carrying on the running business. The authorities seem to be oblivious of the difference in these concepts because the language of sub-section 1 of Section 18 itself contemplates that notice can be issued on the owner, lessor or landlord, or the agent of the owner, lessor or landlord, or the tenant, lessee, occupier or any other person incharge of such house, room, place or portion. We fail to understand as to how the Petitioner could have been termed both as licensee and the owner, because the Petitioner has placed on record the agreement between him and Maheshwar Rama Desai by filing a reply dated 29th April, 2013. True it is that the licences under the relevant and applicable statutes are issued in the name of the Petitioner but, the business has been conducted at-least from the date of the agreement placed on record by Maheshwar Rama Desai. Once this is the factual position, a notice could have been directed to be issued against the Petitioner and somebody who was in-charge of and conducting and managing the business. This itself shows that had the Police Commissioner taken care to see that there was a

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reply in the aforesaid terms placed on record and copy of which has been annexed to this Writ Petition, then, he could not have arrived at a satisfaction that there are no written replies. That the Petitioner pointed out that he remained present on the earlier occasion but, was handicapped on account of all documents being not furnished and provided to him and this Court directing a fresh hearing be given itself is indicative of the fact that the Petitioner appeared before the authority and denied the allegations. He denied the allegations in writing and that is why the authority was required to record the satisfaction in terms of the legal provision.

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Further, the proviso below clause (b) of sub-section 1 of Section 18 enables the Magistrate to record that the owner, lessor or landlord as well as the agent of them could be innocent of the improper use of the house. He may cause the same to be restored with a direction that the same shall not be leased out or otherwise given possession of for the benefit of the person who has been allowing the improper use.

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What sub-Section 1 contemplates is a satisfaction as to

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whether the public place referred to in section 7 (1) is being used as a brothel by any person or it is being run as a brothel by any person or is being used by the prostitutes for carrying on their trade. The requisite orders that are to be passed are only after reaching the satisfaction that a house, room, place or portion is being used as a brothel or for carrying on prostitution.

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The term “brothel” has been defined in the Act in Section 2, clause (a) to mean any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes. The term “prostitution” is also defined to mean the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression “prostitute” shall be construed accordingly. In such circumstances and when the law provides punishment for such activities and for checking and preventing use of a place as a brothel or for prostitution, then, the authority is obliged to record a specific, clear satisfaction. If improper user of the premises has to be controlled,

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checked and all together stopped, then, all the more, the Magistrate is required to act responsibly. The proviso enables the Magistrate to find out that the owner, lessor or landlord was innocent of the

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improper use. Therefore, if the premises are to be attached for improper use and after hearing the person concerned, so also, recording the requisite satisfaction in terms of the applicable statutory provision, then, we cannot sustain the impugned order because it is vitiated by complete non-application of mind. In fact, the authority has not paid any attention to the language of this provision which enables him to order closure of a brothel and eviction of offenders from the premises. The proceedings cannot be initiated lightly and for the asking. There is required to be placed before the authority material so as to enable him to arrive at the requisite satisfaction. If a brothel is being run or the premises are in use as a brothel, then, the satisfaction must be in terms thereof and bearing in mind the difference between the premises being used as a brothel or brothel is being run. Secondly, if the authority is satisfied that the premises are being used by the prostitutes for carrying on their trade, then, a distinct satisfaction is

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contemplated and based on the material including information from the police or otherwise. In the given facts and circumstances, we do not find any attention being paid to the crucial words and language of the Section. We have seen the reply dated 29th April, 2013, a copy of which is annexed to the Petition and in which the Petitioner not only invites the attention of the authority to the agreement executed with Maheshwar Rama Desai but, takes a specific stand in paragraph 9 thereof that the documents, statements, photos, letter, plan which are given to him are false and fabricated and are dated 28th February, 2013, 8th March, 2013 and 19th March, 2013. The show cause notice is dated 31st January, 2012. In such circumstances if the documents themselves are subsequent in point of time, then, before placing reliance thereon, the Petitioner ought to have been given copies thereof or the authorities should have supplied them to the Petitioner at his own costs, charges and expenses. The Petitioner may have been supplied with the documents but, his argument was that the show cause notice is dated prior to these documents. The notice cannot be dealt with and disposed of by relying on such documents which

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are admittedly subsequent in point of time. This satisfaction must be based on the documents or material as on the date of the show cause notice.

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In these circumstances, even this stand was required to be referred to and dealt with. Once we find that there is a complete non-application of mind on the part of the authority and it erroneously proceeded on the footing that no cause is shown in writing to the notice dated 31st January, 2012, then, we cannot sustain the impugned order. We would be failing in our duty if we do not interfere with the orders which are vitiated by complete non-application of mind and when the authority misdirected itself in law completely.

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In these circumstances, we are unable to accede to the submissions of Mrs. Pai that in Writ Jurisdiction, we should not interfere with the subjective satisfaction recorded in the impugned order. That satisfaction is vitiated as the authority has failed to take note of the requirement of sub-section 1 of Section 18. If drastic orders such as sealing of the premises have to be passed so as to

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prevent improper use or to check activities such as prostitution

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which are not in public interest and contrary to the mandate of the Act, then, the authority must and rather is obliged to take into account not only the materials which are produced before him but, the replies to the show cause notice and after giving complete opportunity in terms of the provision and hearing the affected parties, he should pass a reasoned order. The basic and fundamental concept and the difference between the person who is the owner of the premises and one who has allowed a third party to conduct the business therefrom has not been noticed in this case and that is one more ground why the order is contrary to law and vitiated by non-application of mind.

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In the above circumstances, the impugned order is quashed and set aside and the Petition is allowed in terms of prayer clause (a). However, we clarify that our order does not eman that the authorities cannot take the requisite steps in accordance with law in order to check or prevent the user of the premises as contemplated by sub-section 1 of Section 18. Our order does not prevent the parties from taking recourse to law, if required again.

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Equally, our order does not prevent the authorities from exercising their power under the requisite and applicable laws enabling them to issue licenses to carry on restaurant business and if they are of the opinion that there is a breach or violation by the Petitioner of the terms and conditions on which such licence is issued.

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We direct that the seal placed on the premises be removed within a period of two weeks from today.

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(G. S. PATEL, J.) (S. C. DHARMADHIKARI, J.)

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Harishchandra Vithoba Kolpate v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Harishchandra Vithoba Kolpate v. State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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