1. By this petn. an order made under Section 9(1), Bombay Prevention of Prostitution Act, 1923, by the Addl. Dist. Mag. of Poona, is being challenged. The order served upon the petnr. stated that whereas it had been brought to the notice of the Addl. Dist. Mag. that the petnr. resided in or used or frequented in POONa City house No. 402 Budhwar Peth in which the business of a common prostitute was carried on, the Addl. Dist. Mag. directed the petnr. to remove herself from Poona City to a place beyond the radius of five miles from Poona City before 30-9-1950. The order is dated 11.8-1950.
2. Mr. Daundkar contends that Section 9(1) of the Act is void inasmuch as it places an unreasonable restriction upon the right of the citizen conferred upon him by Article 19(d) & (e) of the Constitution. Section 9(l) confers upon the Comr. of Police, Greater Bombay, & upon the Dist. Mag- outside Greater Bombay, power to cause a notice to be served upon any person who occupies or manages or acts or assists in the management of, or upon any woman who resides in, uses or frequents, any house, or room or place in which the business of a common prostitute is carried on, requiring such person or woman within a certain period not to reside in, use or frequent any street or place specified in the notice, or directing such person or woman within a certain period to remove himself or herself to such place whether within or without Greater Bombay, by such route or routes & within such time as the Comr. of Police shall prescribe. Undoubtedly, this piece of Legislature is a restriction upon the right of a citizen to move freely through the territory of India & to reside & settle in any part of the territory of India. Bat the right conferred by Article 19(d) & (e) is not an absolute right. It is controlled by Ssub-clause (5) of Article 19, & it is competent to a Legisliture to impose a reasonable restriction on the exercise of those rights in the interest of the general public. But it is contended by Mr. Daundkar, in view of our judgment in Jeshingbhai Ishwarlal v. Emperor , : AIR1950Bom363 F.B. that the restriction imposed by this section is not a reasonable one. It is left to the Comr. of Police or the Dist. Mag. to decide that a particular place is being used for the business of a common prostitute & without giving an opportunity to the party affected to be heard in his or her defence to order him or her to leave the place & to go to such place as he or she may be directed.
3. In answer to this contention, the Govt. Pleader draws our attention to Section 9(4) of the Act which provides for a prosecution for disobedience of the requisition contained in the notice issued under Section 9(1), & the Govt. Pleader argues that whether a particular place is used for the business of a common prostitute or not is an objective fact, & if the notice is issued on an incorrect assumption, that fact can be challenged in the prosecution & an adjudication can be obtained in a criminal Ct. Therefore according to the Govt. Pleader it would not be correct to say that the person affected by the notice under Section 9(1) has no right to be heard in his or her defence. But the Govt. Pleader overlooks the provisions of Section 9(2) which gives very wide powers to the police. If the notice served under Section 9(1) is disobeyed, the police have the powers to arrest the person & remove him in police custody to the place prescribed by the notice under Section 9(1). The Govt. Pleader relied on the case of George L'Hote v. City of New Orleans 44 U. S. R. 587. There an ordinance prescribing limits in a city outside of which no woman of lewd character shall dwell was challenged as invading the rights of property owners in or adjacent to the prescribed limits, & one of the grounds urged before the S. C. was that the property owners were not entitled to be heard in protection of their rights & the S. C. rejected this contention. Now, the case bafore the S. C. was entirely different from the case before us. There the law sought to confine prostitutes within territorial limits & the persons who made a grievance were indirectly affected by having their property adjoining to these limits. In the case before us the petnr. is sought to be driven out of her residence pursuant to an order made by the police authorities when she has not been heard in her defence at all. There is a direct invasion of her rights under Article 19(1)(d) & (e). These rights may be undoubtedly restricted in public interest, but there would be no prejudice to public interest if the persons sought to be affected are given an opportunity to be heard.
4. In our opinion, there is considerable force in Mr. Daundkar's contention that the provisions contained in Section 9(1) without providing for an opportunity to the person affected to be heard is not a valid provision in view of the enactment of the Constitution. We cannot accede to the Govt. Pleader's contention that wa should not decide the constitutional question but should dispose of this appln. by considering the nature of the order made, which in our opinion is bad, even though Section 9(1) did not contravene Article 19(1)(d) & (e) of the Constitution. It is clear that when a person ia called upon under Section 9(1) to remove himself or herself to a particular place, that place must be clearly indicated in the order. It is not sufficient for the police authorities to tell the person affected that he must go outside the place from which the person is sought to be evicted. This is clear from the provisions of Section 9(2) also because as I said before that enables the police to remove the person who refuses to obey the notice or order to the place prescribed in the notice. Therefore a specific place must be prescribed in the notice itself to which the person must take himself pursuant to the requisition served upon him by the police authority. In the notice served in this case, all that the petnr. is asked to do is to remove herself from Poona City to a place beyond the limits of a radius of five miles from the Poona City Post Office before 30-9-1950. The Dominion of India is very vast & the radius of five miles outside the Poona City is a very vast territory indeed, & no place is indicated as to where this woman has to go in obedience to this order. Therefore if this order was to be enforced, it will be impossible for a police officer to know where this woman would have to be taken and deposited. Further, Section 9(1) also makes it incumbent upon the police authorities to indicate the route or routes by which the person has to remove himself from the place which he has to vacate. No route or routes have been indicated in this notice. Finally, Section 9(1) empowers the Police Comr. or the Dist. Mag. to serve a notice upon a woman who resides in, uses or frequents any house, room or place in which the business of a common prostitute is carried on. All these three expressions indicate different sets of facts & the Comr. of Police must make up his mind & decide which particular set of facts applies to the person against whom the notice is being served. What the Dist. Mag. has done is that he has merely repeated or copied in the order the bald words of the section. He says in his notice that the petnr. resides in or uses or frequents a particular house in Poona City. But it was incumbent upon the Dist. Mag. to have informed the petnr. whether she resided in the place or she used the place or she frequented the place. Any one of these facts would have given him the right to issue the order. But he must state which particular fact in this particular case he is relying upon in order to exercise his right to issue a notice under Section 9(1).
5. Therefore, in our opinion, the notice issued under Section 9(1) is bad as not complying with the conditions laid down in that section. Although the order is bad, the matter can only come before us under Article 226, as it has in this case. We could have confined ourselves to the consideration of the order if there had been a conviction for disobeying the order & the matter had come before us in revn. or in appeal. But under Article 226, our jurisdiction to interfere can only arise provided an order is in violation of a fundamental right & the order can only be in violation of the fundamental right provided it is issued under a law which is void as imposing an unreasonable restriction under Article 19(1)(d) or (e) of the Constitution. Therefore, although the Govt. Pleader asked us to confine our judgment to consider the validity of the order & not finally decide the question of the legality of Section 9(1), we must decide that question in order to give relief to the petnr. Therefore, on a careful consideration of the matter, we accept the arguments advanced by Mr. Daundkar & hold that Section 9(1) imposes an unreasonable restriction upon the fundamental rights of the petnr. under Article 19(1)(d) & (e) & it is void inasmuch as it fails to provide for a reasonable opportunity being given to the person affected by Section 9(1) to be heard in his defence.
6. The order therefore will be set aside. Ruleabsolute. No order as to costs.