Smt. Madhu vs The State

Kailash Gambhir, J.—By way of this application field u/s 482 Cr.P.C. by the applicants Sh. Ramesh, Sh. Kasturi Lal and Ms. Sunita Tehri seek setting aside of order dated 7.2.2008 and further prays for restoration of the premises to them. It is stated in the application that these applicants are the owners of Tehri Bhawan, bearing No. 5203-5210, Ward No. VII, at Shradhanand Marg, G.B. Road. Delhi and their predecessor had let out one room in the first floor of property No. 5207/1 to the appellant Madhu (since deceased) on 16.1.1987 on monthly rent of Rs. 250/-; second room on the first floor of this property No. 5207/2 on 26.12.1985 at Rs. 250/- per month and third room on the same floor of property No. 5207/ 3 on 26.12.198 at Rs. 200/- per month. It is further submitted that the appellant deceased had duly attorned to these applicants as her landlords and she used to pay rent to them. It is further claimed that the said portion was let out to the appellant for residential-cum-commercial purposes vide rent deeds dated 16.1.1987, 26.12.1985 and 26.12.1985. It is further stated that while convicting the appellant the learned Sessions Judge has passed an order u/s 18 (1) of the ITP Act for closure of the first floor of property No. 5207 in respect of the portions occupied by the appellant. Counsel for the applicants also states that the appellant deliberately concealed from this Court that after the order of conviction and sentence passed by the learned Sessions Judge, the appellant had filed an application for release of the said tenanted portion to her. Such similar application was also moved by the appellant before the trial court with the prayer that the said portion should not be restored to the present applicants. It is also stated that the applicants were deliberately not made party in the present appeal and therefore they could not oppose the application moved by the appellant whereby the appellant sought restoration and desealing of the said portions. Based on these submissions, the applicants seek setting aside of the order dated 7.2.2008 passed by this court besides seeking restoration of the said tenanted portions of property No. 5207. Notice of this application was directed by this court but no reply thereof was given since the appellant by that time had already died.

Counsel appearing for the applicants strongly contends that the mandate of Section 18 (1) of ITP Act has not been followed by this court at the time of passing order dated 7.2.2008. The contention of the counsel for the applicants is that there is no other remedy available to the applicants to seek restoration of the said tenanted premises which was admittedly being used by the appellant for immoral purposes. Placing reliance on Section 18(1) (b) under the ITP Act and the proviso to Section 8(1) (b) and clause (4)&(5) of Section 18 ITP Act the counsel contends that the possession of such premises, after being found to be used for immoral purposes, has to be restored back to the original owner/lessor or landlord and the same cannot be given back to the same person who was found to be using the same for immoral purposes. Counsel further submits that Id. Sessions Judge reached to the conclusion that the premises under occupation of the tenant/appellant was being used for immoral purposes then rent agreement or rent receipts ipso facto become void and inoperative as would be borne out from the mandate of sub Section 4 of Section 18 of the ITP ACT. Counsel for the applicants further submits that the appellant had duly admitted the factum of the ownership of these applicants before the Trial Court and therefore once there being no dispute with regard to the ownership of the applicants, necessarily, the possession of such premises were to be restored to the applicants alone and not to the same person who was found using the said premises for immoral purposes and was convicted for the same.

Opposing this application Ms. Faizani Husain, APP for the State submits that the legal heirs of the appellant are not on record as after the death of the appellant the appeal has abated. Ms. Faizani Husain further submits that even no order u/s 18 (1) of the ITP Act was passed by the court of the Id. Sessions Judge. Counsel further submits that this court has rightly passed the order on 7.2.2008 after finding the period of closure having been expired. Counsel further submits that the applicants have no locus standi to challenge the said order which has attained the finality. Counsel further submits that since the appellant is no more alive and therefore presently who is in occupation of the said premises and under what rights cannot be gone into by this court.

I have heard counsel for the parties at considerable length.

Before adverting to deal with the contentions raised by the parties, it would be proper to reproduce Section 18 of the Immoral Traffic (Prevention) Act, 1956, which is as under:-

Section 18. Closure of brothel and eviction of offenders from the premises.

(1) A Magistrate may, on receipt of information form the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred meters 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 or 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 in charge of such house, room, place, or portion, to show cause within seven it days of the receipt of the notice why the same should not he attached for improper use 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 year or in a case where a child or minor has been found in such house, room, place or portion during a search u/s 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 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 use therein.

(2) A court convicting a person of any offence u/s 3 or Section 7 may pass orders 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 sub-section (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 expiry of one year or three years, as the case may be:

Provided that where a conviction u/s 3 or Section 7 is set aside on an appeal on the ground that such house, room, place, or any portion thereof is not being run or uses 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.

(4) Notwithstanding anything contained in any other law for the time being in force, when a Magistrate passes an order under subsection (1), or a Court passes all order under sub-section (2), any lease or a 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 subsection, 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.

As would be seen from the above provision if the Magistrate on receipt of information from the police or otherwise that any house, room, place or any portion thereof is being used or run as a brothel by any person or is being used by prostitutes for carrying on their trade them the requirement is to (a) first 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; (b) to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof; (c) to provide hearing to the person and (d) if after completing the hearing 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 an order directing eviction of the occupier within 7 days of the passing of the order from the house, room, place or portion of such premises. However, in a case where such a lessor, landlord or agent of the owner wishes to let out such premises during the period of one year from the date of such order and in a case where a child or minor has been found in such house then during the period of three years from the date of such order the owner, lessor or landlord to obtain prior approval of agent of the owner, lessor or landlord or the agent of the owner, lessor or landlord to obtain prior approval of the Magistrate. Proviso of this Section deals with the situation where such owner, lessor or landlord or agent of the owner etc. was innocent of such improper user of the house, room, place, portion thereof, then the Magistrate can straightway restore the possession of such premises directly to the owner, landlord, Lessor or to the agent of a owner with a further direction that such a place shall not be leased out or otherwise given possession of for the benefit of the person, who was allowing the improper user. Counsel for the applicant laid much emphasis on the proviso of Section 18 of the Immoral Traffic (Prevention) Act. In my view this proviso will not help the applicant as in the present case firstly, no order u/s 18 was passed by the Magistrate and secondly, the order of conviction and sentence passed by the learned Trial Court was under Challenge in the present appeal and the appeal was yet to attain finality, but due to the death of the appellant the appeal has abated. In the absence of any order passed by the Magistrate u/s 18 of the Immoral Traffic (Prevention) Act, 1956 this Court cannot direct handing over of the possession of the premises in question to the applicant without affording proper hearing to the legal heirs of the appellant, who are stated to be in possession of the premises. The complete mechanism has been provided u/s 18 of the said Act and the Magistrate has been vested with powers to give possession of such premises only after following the due process as laid down in the said provision which includes service of a show cause notice and proper hearing to the party concern, but no such process was followed before the Court Magistrate and now after the death of the appellant this Court cannot give any such direction to evict all the legal heirs of the appellant or other occupants, who are not before the Court after the abatement of the present appeal. Sub-Section(4) also does not come to the rescue of the applicant, the operation of which would come into play only after an order is passed by the above discussion, there is no merit in the present appeal. The same is hereby dismissed.