Bombay High Court
Mateus Silveira vs Sub-Division Magistrate And Anr. on 10 April, 1990
Equivalent citations: 1991(1)BOMCR526
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT
Sharad Manohar, J.
1. Introductory : The petition ostensibly arises out of the purported action under section 18 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (hereafter “the Act”), but the petitioner’s allegation is that it is the result of the success of the present respondent No. 3, the newly added respondent in noseleading the first respondent, Sub-Divisional Magistrate, South Goa, to pursue with the Show Cause Notice under the Act which Show Cause Notice has no legal, existence.
As will be presently pointed out, in our view, the show cause in question which is sought to be perused probably does not have any subsisting legal existence but, in the alternative, even assuming that technically speaking it has got some existence in law, the impugned proceedings purporting to have been taken pursuant to the Show Cause Notice have no legal justification.
2. The relevant facts, some admitted, some asserted : The relevant facts, some admitted, some asserted, may be briefly stated as follows : The premises in question are the ground floor and first floor of House No. 17 Pe. Miranda Road, Margao, of which the newly added respondent No. 3 is the admitted owner. The present petitioner is the tenant in respect of same presumably from October, 1974. According to the petitioner he was carrying on business of restaurant on the ground floor and of lodging house on the first floor. Petitioner’s plea is that the newly added respondent No. 3 (hereafter, “the contesting respondent”) is anxious to ease out the petitioner from the premises and that with that end in view he engineered with the police certain proceedings. In any event there is no dispute that the presently impugned proceedings is admittedly the result of the prodding given by the contesting respondent to the Sub-Divisional Magistrate, respondent No. 1.
But all this started from 13th November, 1985, when the then Sub-Divisional Magistrate, Margao, one K.K. Sharma, served a Show Cause Notice upon the petitioner under section 18 of the Act. The legality of the said notice was challenged by the present petitioner in this Court in Criminal Writ Petition No. 251.86, which was filed on 8th October, 1986. There is no dispute that the said notice was quashed by this Court.
Thereafter, in April, 1987, the Sub-Divisional Magistrate, Shri Sharma served another Show Cause Notice dated 6th April, 1987, upon the petitioner under the selfsame provision calling upon the petitioner to show cause why the lodging house on the first floor should not be attached on account of its illegal use in contravention with the said Act. After hearing, the Show Cause Notice appears to have been made absolute and the petitioner was directed to vacate the first floor of the premists within seven days from the order. That Order was the subject matter of challenge in this Court in Writ Petition No. 90/88. It is the legal effect of the order passed in the said Writ Petition No. 90/88 which is mainly the subject matter of the present petition.
3. Order in Writ Petition No. 90/88 : Undertaking taken from and complied with by the petitioner : When the said Writ Petition No. 90/88 came up for hearing before this Court, this Court found that the documents on the basis of which the impugned order was passed by the Sub-Divisional Magistrate were not served upon the petitioner at any time. This Court therefore observed that the Order impugned in that writ petition was capable of being quashed on that ground alone.
But this Court did not stop there. The Court further asked the petitioner whether he was prepared to put a stopper to his business of lodging house. His statement was recorded by the Court giving undertaking to this Court to close the lodging business which was carried on the first floor of the premises in question, in its entirety.
The petitioner accordingly stopped the business and there is no dispute that there exists no lodging business, on the first floor or on the ground floor, being carried on by the present petitioner since the time when the undertaking was given by the petitioner. By the said order this Court quashed and set aside the order of the first respondent, the Sub-Divisional Magistrate, directing vacating of the first floor of the premises. Technically speaking, the order was pursuant to the Show Cause Notice. The order has been set aside, but there is no formal order passed quashing the said show cause Notice as such.
4. The newly-added respondent No. 3 prevails upon the Sub-Divisional Magistrate to start a third inning as it were : All this was over on 20th June, 1989, almost one year ago when this Court decided the said Criminal Writ Petition No. 19/88 and set aside abovementioned Order passed by the Sub-Divisional Magistrate. Evidently, the contesting respondent No. 3 was not pleaded. As the record shows it was he who prodded the Sub-Divisional Magistrate to furnish the documents to support the order which was impugned and set aside in the earlier Criminal Writ Petition No. 90/88. He was successful in satisfying the Sub-Divisional Magistrate that though the Order was set aside by this Court, the Show Cause Notice pursuant to which the order was passed was not, technically, or in so many words, set aside by this Court. It appears that the respondent/landlord himself supplied the copies of the relevant documents to respondent No. 1 and prevailed upon him to reopen the proceeding from the point immediately after the Show Cause Notice. What the Sub-Divisional Magistrate therefore did was to sent copies of the documents for justification of the order which was already set aside and called upon him to show cause why the identical order should not be passed against him. It is against this action that the present writ petition if filed by the petitioner.
5. Arguments advanced on behalf of the petitioner : Mr. Dias, the learned Counsel appearing for the petitioners, urged three pleas in support of the petition. In the first place his submission was that the belief of the Sub-Divisional Magistrate that the Show Cause Notice in question was not quashed by this Court is a misconceived belief. According to him, after the Show Cause Notice was given, proceedings were held pursuant to the same and order was passed as contemplated by the Show Cause Notice. The Show Cause Notice and every Order passed in the proceedings pursuant to the Show Cause Notice therefore, merged in the final order which was impugned before this Court in the earlier Writ Petition No. 90/88 and, hence, when that Order was quashed, alongwith that order passed in those proceedings must be deemed to have been quashed. The argument was that the proceedings which culminated with the final Order were initiated by the Show Caused Notice. Normally, alongwith the final order everything in the proceedings must be deemed to have been quashed. The argument was that there is nothing in the judgment of this Court in the earlier proceedings indicating that the Show Cause Notice was kept alive by this Court.
Secondly, it was contended that, in any event, the presently impugned Order passed by the Sub-Divisional Magistrate is actuated by mala fides, in the sense that the Sub-Divisional Magistrate has allowed himself to be noseled by the newly added respondent No. 3. He does not appear to have functioned as per his free will. Even respondent No. 3 has made no secret of the fact that it was he who veritably goaded the Sub-Divisional Magistrate to re-start the proceedings. Allegation is that the copies of the Documents which were not furnished to the petitioner in the earlier proceedings (on account of which fact the previous order was quashed by this Court) were supplied by him to respondent No. 1 urging him to serve them upon the petitioner. It was in pursuance of this insistence on the part of the respondent’s landlord that the first respondent informed the petitioner that fresh proceedings would be held on the basis of the same without Show Cause Notice. The documents supplied to the petitioner were there which were made available to the first respondent by the newly added third respondent. The grievance therefore, is that the first respondent was not acting on his free will but had allowed himself to be noseled by the respondent-landlord.
In this connection, it was pointed out that the third respondents has made no bone of the fact that he was keen on evicting the present from the suit premises. He has in fact instituted proceedings against the petitioner before the Rent Controller for his eviction and he wishes no stone to be left unturned in the matter of his eviction. The Order passed by the first respondent is therefore, not his own order at all because it is passed blind-folded.
Thirdly, it was submitted that in any event the impugned proceedings are extremely improper and misconceived. According to the petitioner he had never admitted the allegations about improper or immoral use of the premises. Even then he gave an undertaking to this Court to stop the lucrative lodging business and has, since then, given up that business and has surrendered his licence to the authorities. There is no dispute that no grievance’ is voiced against the petitioner from any quarters in any event after the final order was passed by this Court in Writ Petition No. 90/88. Plea is that while considering whether such a proceeding shall be held or not, the Sub-Divisional Magistrate has to be guided by principles of legality as well as of propriety and propriety is the one thing which the threatened proceeding lack.
We are in general agreement with the learned Counsel.
6. Pleas urged on behalf of the respondents : Mr. Bhobe, the learned Government Advocate, did not wish particularly to support the order impugned in this proceeding and left the matter specifically to the order of this Court. Only Mr. Rebello appearing for the newly added respondent No. 3 strenuously justified the impugned proceedings. But even he had to make a clean breast of the fact that the presently impugned proceedings were set in motion exclusively by respondent No. 3. His arguments centred mainly upon around two points :—
i) The Show Cause Notice which was the subject matter of the earlier Writ Petition No. 90/88 was not set aside by this Court and, hence, it continued to have a legal existence.
ii) As the owner of the suit premises, his client was perfectly justified and within his rights to move the first respondent to re-commence the proceedings from the point immediately after the Show Cause Notice and that, hence, there was nothing mala fide either on his part or on the part of respondent No. 1 to re-commence the proceedings.
7. This Court’s view : As said above, in our opinion, the plea that the Show Cause Notice was not quashed by this Court is a hypertechnical plea. We have pointed out above the substance of this Court’s earlier order dated 20th June, 1989. It is true that as per this Court, the order impugned in that writ petition could beset aside even on the narrow ground that copies of the documents justifying the order were not made available to the petitioner. But as we go through the entire judgment no room is left for doubt that what the Court has quashing was the entire proceeding. It is on this account only that undertaking was taken from the petitioner that he will discontinue forthwith the business of lodging house and surrender his licence to the authorities forthwith. Not only that, but undertaking was taken from him also not to apply for any licence in the future and not to carry on any illegal or unlawful activity in the premises or even a vide parlour. If this Court was inclined to restrict is scope of enquiry only the validity of the final order which was impugned in that petition and was not inclined to set aside Show Cause Notice as such pursuant to which the order was passed, the subsequent undertaking taken from the petitioner were not necessary. Evidently, this Court directed all the parties their irrespective of the question whether the petitioner had indulged in any nefarious activity in the past or not he should have no wherewithal to indulge in those activities in future. In other words, the petitioner was directed to start on a clean slate. Everything that had happened in the past, it was contemplated, was to be forgotten.
This being the position, the technical omission on the part of this Court in the matter of specific setting aside of the Show Cause Notice should not have been and could not have been used by the Sub-Divisional Magistrate as a handle to initiate proceedings de novo on the basis of the earlier Show Cause Notice though it was technically not quashed by the Court. The said judgment of this Court, read as a whole, leaves on room for doubt that everything was quashed; not only the order but also the Show Cause Notice.
Even assuming that the Show Cause Notice was not set aside by this Court, point is that there was no justification for the Sub-Divisional Magistrate to rake up the old history and start proceedings on the basis of Show Cause Notice which was a state affair. After all the Sub-Divisional Magistrate has to conduct himself not only by the code of legality but also by the code of propriety. This was the reason why even Mr. Bhobe, the learned Government Advocate fairly stated to the Court that he would not argue in favour of the Order and would submit to the order of the Court in this behalf.
8. How respondent No. 3 came on the scene in this petition : In this view of the matter, we have not examined the second plea of mala fides hinted at by Mr. Dias. We make it clear that the present respondent No. 3 was originally not a party to the petition. He made an application for leave to intervene. This Court passed a separate order allowing him to be impleaded as respondent No. 3 in the petition. As stated above, we have heard Mr. Rebello representing respondent No. 3 extensively. However, we are not satisfied that any particular ground is made out for taking any view other than the one mentioned above.
9. Final Order : Petition therefore succeeds. The rule earlier issued is made absolute in terms of prayers (a) and (b). The Notice dated 6th October, 1989, Exh. D to the petition is hereby quashed and set aside.
However, in the circumstances of the case there shall be no order as to costs.