Partly allowed

Shantilal Khushaldas and Bros. Pvt. Ltd., Rep. by Its Aut. Rep., Subramany., v. State of Goa, Thr. the Police Inspector, Margao Town Police Station, Margao and Anr.

Bombay HC15 Apr 2021WPCR/195/2019

Case brief

AI extract

What is this about?

Petitioner seeks restoration of premises after their acquittal. Court quashes Magistrate order for lack of reasoned findings under Section 18 Act, remanding proceedings for fresh consideration while sealing continues.

What did the court decide?

Order impugned under Section 18 of the Immoral Traffic (Prevention) Act, 1956 quashed and set aside; proceedings restored to the file.

Shantilal Khushaldas and Bros. Pvt. Ltd., Rep. by Its Aut… — Property and Title | Bombay HC (2021)

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Andreza 1

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL WRIT PETITION NO. 195 OF 2019

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Shantilal Khushaldas & Bros.
Pvt. Ltd.,...... Petitioner

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V e r s u s

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1. State of Goa.

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2. Smt. Justiniana Lourence D' Souza ......Respondents

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Mr. A. D. Bhobe and Mr. C. Angle, Advocates for the Petitioner.

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Mr. Pravin Faldessai, Additional Public Prosecutor for the State-Respondent
no.1.

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Mr. Vivek Rodrigues, Advocate for the Respondent no.2.

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CORAM : NITIN W. SAMBRE, J.

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DATE : 15th April, 2021

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P.C.

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The order impugned is passed by the Deputy Collector and Sub-

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Divisional Magistrate, Salcete, Margao, Goa, in Case no.

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MAG/MRG/18/Immtr-Act/01/2018/7349, whereby, the application

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preferred by the Petitioner under Section 18 of the Immoral Traffic

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Andreza 2

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(Prevention) Act, 1956, herein after shall be referred to as the 'Act' for the

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sake of brevity, seeking possession of the attached premises came to be

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dismissed, whereas that of the one preferred by the Respondent no.2, tenant,
came to be allowed.

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2.The prosecution of the Respondent no.2 by the State-Authorities in
Sessions Case (ORS) No. 18 of 2018, for an offence punishable under Section
370(A)(2) of the Indian Penal Code and Sections 3, 4, 5, 6 and 7 of the said
Act, resulted into acquittal.

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3.During the said proceedings, the premises in question which are
claimed to be owned by the Petitioner, were subjected to attachment. The
Respondent no.2, by an order dated 11.05.2018, passed by the competent
Authority, was directed to vacate the premises in question. He was also asked
to stop the activities running therein in the name of Goa Lords Bar and
Restaurant and the said premises were directed to be sealed.

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4. Vide Order impugned, the said premises were directed to be unsealed

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by the Police Inspector, Margao, on an application dated 27.02.2019
preferred by Respondent no.2 and permitted the possession of the same in his
favour whereas the prayer of the Petitioner for possession of the same came to

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Andreza 3

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be rejected.

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5.I have heard the respective Counsels at length. Shri A. D. Bhobe,
learned Counsel appearing for the Petitioner-Landlord, while emphasizing on
the scheme of Section 18 of the Act, would urge that the order is a non-
speaking order as no reasons whatsoever are furnished by the Authority i.e.
Respondent no.1 while allowing the prayer of Respondent no.2 and rejecting
the prayer of Petitioner for possession under Section 18 of the Act. According
to him, land owner has every right to claim the possession of the sealed
premises provided he satisfies the statutory requirement.

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6.While countering the submissions, the learned Counsel for Respondent
no.2 so also learned Additional Public Prosecutor, would support the order
and submits that there are sufficient reasons in support of the order impugned
and prayed for dismissal of the Petition.

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7.In the backdrop of aforesaid submissions, I have analyzed the reasons
furnished by the Respondent no.1 in the order impugned while granting the
prayer of the Respondent no.2 and rejecting the prayer of Petitioner for
handing over possession of the suit premises. The Authority was of the
opinion that it cannot adjudicate the right of the parties based on the lease or

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Andreza 4

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the agreement of tenancy, however, allowed the prayer of the Respondent no.2

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in view of acquittal order passed by the learned Sessions Judge.

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8.If we appreciate the scheme of Section 18 of the Act, what is expected of
the said Authority is, while exercising the powers of Magistrate, it has to

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record a finding on the issue that Landlord or the Lessor was innocent of the
improper user of the house while dealing with the prayer for restoration of the
possession. As far as the order impugned is concerned, there are no specific
findings recorded by the Magistrate as contemplated in the proviso to Section
18 of the Act. So as to substantiate the contentions, the learned Counsel for
the Petitioner has relied on the Judgment of this Court in the matter of

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Dhansingh Gopal Chauhan vs. State of Maharashtra reported in 2005(2)

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Bom. C. R. (Cri.) 441.

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9.In that view of the matter, it could be inferred that the order impugned
lacks the reasons which should have been germane for the cause of deciding
the issue of restoration of possession canvassed by the rival parties. The

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absence of reasons speaks of the non-application of mind and same
demonstrate the absence of link between the issues canvassed, considered and

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the decision made.

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10.In that view of the matter, the order impugned is not sustainable. That

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being so, the order impugned dated 26.07.2019 passed by Deputy Collector

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and Sub-Divisional Magistrate, Salcete, Margao, Goa, in Case no.

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MAG/MRG/18/Immtr-Act/01/2018/7349, is hereby quashed and set aside.
The proceedings preferred by the Petitioner and the Respondent no.2 stood
restored to the file of the said Authority before whom the parties hereto agree
to appear on 03.05.2021 at 11.00 a.m.

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11. As such, no fresh notices are required to be issued to the parties to the Petition.

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12.It is expected of the said Authority to decide the issue of restoration of
possession having regard to the aforesaid observations and requirements under
Section 18 of the Act.

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13. The Petition stands partly allowed in the above terms.

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14. Needless to clarify, till the issue is decided by the said Authority, the

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order of sealing of the premises shall continue since the de-sealing or handing

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over of the possession is not acted upon till this date.

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NITIN W. SAMBRE, J.

Shantilal Khushaldas and Bros. Pvt. Ltd., Rep. by Its Aut. Rep., Subramany., v. State of Goa, Thr. the Police Inspector, Margao Town Police Station, Margao and Anr.

Case brief

What is this about?

What did the court decide?

Shantilal Khushaldas and Bros. Pvt. Ltd., Rep. by Its Aut. Rep., Subramany., v. State of Goa, Thr. the Police Inspector, Margao Town Police Station, Margao and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

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