NARINDI NAGESWARA RAO Vs. SUB DIVISIONAL MAGISTRATE VIJAYAWADA

JUDGEMENT

(1.) The four petitioners in th writ petition are seeking writ of certiorari to quash the order in M.C.No.4/1984 passed by the first respondent. They are tenants/proprietors of lodging houses in different premises at Vijayawada. On September 18, 1982, the second respondent, Assistant Superintendent of Police, Vijayawada laid information before the first respondent (Sub-Divisional Magistrate) that in the summary trial cases filed against certain women under Section 4 (2) (c) and Section 8 (6) of the Suppression of Immoral Traffic in Women and Girls Act (104 of 1956), for short, "the Act", they were convicted on admission and sentences of fine were imposed on them. The premises of the petitioners are being used for prostitution. He requested to take action under Section 18(1) of the Act. The first respondent in his proceedings dated February 4, 1983, issued notices to the petitioners under Sec. 18 (1) to show cause why the premises should not be attached for improper use. The first petitioner in his explanation dated February 15, 1984 denied the allegation that on April 14, 1982 and June 24, 1982 the accused in those cases stayed in his lodge nor was he aware of the same. He was falsely implicated by the police with ulterior motives to deprive his right to trade. There is no nexus between the information laid and the action sought to be taken. The allegations will be visited with serious consequences. He requested for permission to engage a counsel to defend him in all further proceedings. The other petitioners submitted replies on February 15,1983 with similar contentions. In March 1984, the first respondent called upon their conusel to submit written arguments. Personal hearing was given to the advocates. Then the first respon' dent passed the impugned order on April 3, 1984.

(2.) The first respondent held that the premises of the petitioners were misused for prostitution and directed attachment of the petitioners' lodges for a period of an year for maintaining public peace, law and order by evicting them from their respective places within seven days therefrom. He held that the owners were not responsible for the misuse. He directed to restore the buildings to the owners conditionally not to lease them out without his previous approval during the period of one year from the date of the order.

(3.) In this writ petition, Sri Bali Reddy, learned counsel for the petitioners submits that Section 18 (1) contemplates to take action against the premises which is being used for prostitution and the owner, occupier or any other person having control over the building or room or portion thereof shall be liable to be taken 0action for attachment of that property. This could be done only on the Magistrate satisfying himself that the premises is being used for the purpose of prostitution and it should ba done only on hearing the person affected, viz., the owner, occupier or any person having control over the premises. "Hearing" includes taking of evidence and giving an opportunity to the person affected. After hearing arguments and on consideration of the entire material, an order has to be passed. In this case the first respondent, except giving the show cause notices, no opportunity to adduce evidence was given and no enquiry was held. Therefore, the order is vitiated by error apparent on the face of the record. In support of his contention, the learned counsel relied upon the decision of the Supreme Court repoited in A.C. Aggarwal, Sub-Divisional Magistrate, Delhi v. Kali Ram (1) AIR 1968 SC 1. and also on the definition of the word "hearing" in Wharton's Law Lexicon, Black's Law Dictionary and Stroud's Judicial Dictionary Volume II and Venkatramaiah's Law Lexicon, 543. The procedure contemplated under Section 18(1) of the Act is summary procedure. Therefore, minimal summary procedure of adduction of evidence and consideration thereof after giving a reasonable opportunity to the petitioner has to be provided for. That having not been done, the order is vitiated by error apparent on the face of the record liable to be interfered with in this writ petition.