MATEUS SILVEIRA Vs. SUB DIVISION MAGISTRATE SOUTH GOA

JUDGEMENT

(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 petitioners 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. Petitioners 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.