Mahinder Narain, J.
(1) The petitioners have filed this petition under Article 226 of the Constitution of India, asserting that petitioner No. 1 is a Trust, having been created by a Deed of Trust dated 26th May, 1983, executed by Shri Kaushal Kishore. Petitioners No. 2 to 4 are the trustees of petitioner No. 1.
(2) Petitioner No. 2 is the Managing Trustee of the Trust, in charge of its day-to-day affairs.
(3) The petitioners say that in accordance with the aims and objects of the Trust, they are selling books and periodicals and journals by a unit called "Suruchi Prakashan". Suruchi Prakashan being a division of petitioner No. 1, is assessed to income-tax independently and is maintaining its own account.
(4) For the purpose of sale of books, premises has been taken on a monthly rent of Rs. 1,000. The premises is a shop in a building bearing No. 10196, Jhandewalan, Delhi, popularly known as "Keshav Kunj Jhandewalan". It is also asserted that petitioner No. 1 is conducting its business of sale of books since its incorporation. It is asserted that none of the books being printed, published or sold by petitioner No. 1 is a banned or prescribed back. The petitioners assert that they have a right to carry on the business of sale of books, which is guaranteed under Article 19(l)(g) of the Constitution of India. It is also asserted that the petitioners being a Trust, have no connection or concern with the Rashtriya Swayam Sewak Sangh, and the ban imposed on Rashtriya Swayam Sewak Sangh has no concern on the petitioners, nor can the petitioners be proceeded against under the Unlawful Activities (Prevention) Act, 1967 (hereinafter called as "the Act"). As a consequence of the ban imposed on the Rashtriya Swayam Sewak Sangh.
(5) It is stated by the petitioners that on 02-03-1993, at ground 6.00 P.M. a police force of 6 policemen headed by a Sub Inspector from Police Station Pahar Ganj came to the business premises of the petitioner at "Keshav Kunj" Jhandewalan, Delhi, and told the manager of the shop Sahib Chand Sharma not to close the shop as they were instructed that the S.H.O. of the police station Pahar Ganj was to carry out a search of the shop. It is also stated that the police force made Sahib Chand Sharma to wait till 9.00 P.M. In the meanwhile petitioners No. 2 to 4 who were informed of the threatened search. reached the premises at around 7.00 P.M. The petitioners say that at 9.00 P.M.. Sub Inspector Mahavir Kaushik and Sub Inspector Jagdish Chander came to shop. They were accompanied by two persons in civilian clothes The said shop was searched, and despite the fact that no search warrant was produced on demand, the search was carried on.
(6) The petitioners assert that the raiding/search party look possession of 29 books/publications kept for sale in the shop. Seizure memo was prepared. The seizure memo was got signed by Sahib Chand Sharma. It was not permitted to be signed by petitioners No. 2 to 4. The petitioners say that after conducting the illegal search and illegally seizing 29 books from the shop, Sub Inspector Mahavir Kaushik arrested Sahib Chand Sharma and got the shop sealed.
(7) Various pleas have been raised in the writ petition, but for the purposes of the interim order sought in the stay application, the prayer, is, for the time being, confined to do-sealing of the premises.
(8) The matter had come up on 11-03-1993. On that date we issued notice to the respondent. Reply was not filed on 15-03-1993. However, today in Court reply has been filed, and we have heard the parties today.
(9) Mr. R. P. Bansal has reiterated the facts stated in the petition, by asserting that there is a fundamental right to carry on business of sale of books from the said shop; that none of the books are proscribed or banned books; that they have been sold for a number of years, and to date no action has been taken under the Indian Penal Code to stop the sale thereof, to ban them or to proscribe them. In any case, Mr. R. P. Bansal. asserts that the reliance of the respondent upon the Act for the purposes of sealing the premises, is illegal for the reason that power of sealing of the premises is not to be found in the said Act.
(10) The affidavit which has been filed in Court today, contains two orders which are reproduced in full below. One order is issued by Mrs. Pratibha Karan, Home Secretary, by order and in the name of Lt. Governor. National Capital Territory of Delhi, and the other is issued by Shri M. B. Kaushal, Commissioner of Police dated 12-12-1992 :-
Government of National Capital Territory Of DELHI
(HOMEPOLICE (II) DEPARTMENT)
DATED12TH DEC. 92.
IN exercise of the powers conferred by Section 19 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) and. pursuant to (the Govt. of India, Ministry of Home Affairs notifications No. S.O. [906(E)] dated 10th Dec. 1992. The Lt, Governor, National Capital Territory of Delhi hereby directs that the powers under Section 7 & 8(1) of the aforesaid Act shall be exercised by the Commissioner of Police, Delhi throughout the rational Capital Territory of Delhi, with immediate effect.
BY order and in the name of
LT.Governor, National Capital
TERRItorY of Delhi.
COPY for information and necessary action to :-
1.Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi, with reference to the Mha Notification No. S.O. 906(E) dt. 10-12-92.
2.Commissioner of Police, Police Headquarters, Now Delhi.
3.District Magistrate, Tis Hazari, Delhi.
4.Secretary to the Lt. Governor, Raj Niwas, Delhi.
5.PS to Chief Secretary, Delhi.
IN exercise of the powers conferred on me vide order No. 3-PS/HS/DAD dated 12-12-92 made by the Govt. of National Capital territory of Delhi (Home Police II) Department, I, M. B. Kaushal, Commissioner of Police, Delhi, hereby notify Keshav Kunj Jhandewalan, Pahar Ganj, New Delhi as a place which in my opinion is used by the Rashtriya Swayam Sewak Sangh, an unlawful association, so declared by Govt. of India, Ministry of Home Affairs, New Delhi vide notification No. S.O. 901 (E) dated 10th Dec. 92
Commissioner of Police : Delhi 12-12-92.
(11) The provisions of section 7 of the Act are of no significance, in so far as the power of sealing of any place is concerned. The power to notify any place is, however, contained in section 8 of the Act, which section reads as under :-
POWER to notify places used for the purpose of an unlawful association.-(1) Where an association has been declared unlawful by a notification issued under Section 3 which has become effective under subsection (3) of that section, the Central Government may ; by notification in the Official Gazette, notify any place which in its opinion is used for the purpose of such unlawful association.
Explanation.-For the purposes of this subsection , "place" includes a house or building, or part thereof, or a tent or bessel.
(2)On the issue of a notification under sub-section (1), the District Magistrate within the local limits of whose jurisdiction such notified place is situate or any officer authorised by him in writing in this behalf shall make a list of all moveable properties (other than wearing apparel, cooking vessels, beds and beddings, tools of artisans, implements of husbandry, cattle, grain and food stuffs and such other articles as he considers to be of a trivial nature) found in the notified place in the presence of two respectable witnesses.
If, the opinion of the District Magistrate, any articles specified in the list are to may be used for purpose of the unlawful association, he may make an order prohibiting any person from using the articles save in accordance with the written orders of the District Magistrate.
(4)THEDistrict Magistrate may thereupon make an order that no person who at the date of the notification was not a resident in the notified place shall without the permission of the District Magistrate, enter, or be on or in, the notified place : Provided that nothing in this sub-section shall apply to any near relative of any person who was a resident in the notified place at the date or the otification.
(5)Where in pursuance of sub-section (4), any person is granted permission to enter or to be on, or in, the notified place, that person shall, while acting under such permission, comply with such orders for regulating his conduct as may be given by the District Magistrate.
(6)Any police officer, not below the rank of a sub-inspector, or any other person authorised in this behalf by the Central Government may search any person entering, or seeking to enter, or being on or in, the notified place and may detain any such person for the purpose of searching him :
PROVIDED that no female shall be searched in pursuance of this sub-section except by a female.
(7)If any person is in the notified place in contravention of an order made under sub-section (4), then without prejudice to any other proceedings, which may be taken against him, he may be removed there from by any officer or by any other person authorized in this behalf by the Central Government.
(8)Any person aggrieved by a notification issued in respect of a place under sub-section (1) or by an order, made under sub-section (3) or sub-section (4), may, within thirty days from the date of the notification or order, as the case may be, make an application to the Court of the District Judge within the local limits of whose jurisdiction such notified place is
(A)for the declaration that the place has not been used for the purpose of the unlawful association, or
(B)for setting aside the order made under sub-section (3) or sub-section (4), and on receipt of the application the Court of the District Judge shall, after giving the parties an opportunity of being heard, decide the question.
(12) A perusal of section 8 shows that it contains no statutory powers for ordering, or enabling any authority to order sealing of any premises.
(13) The order dated 12-12-1992 passed by the Lt. Governor in exercise of powers conferred by section 19 of the Act under the Government of India Notification enables the Commissioner of Police to exercise powers under section 7 and section 8(1) of the aforesaid Act. It is pursuant to the authorisation of the Lt. Governor that Shri M. B. Kaushal, Commissioner of Police, has passed the order, by which he has notified Keshav Kunj Jhandewalan, Pahar Ganj, New Delhi, as a place which in his opinion, is used by the Rashtriya Swayam Sewak Sangh as an unlawful association, so declared by the Government of India. Ministry of Home Affairs, New Delhi, vide notification No. S.O. 901(E), dated 10-12-1992. The aforesaid orders of the Lt. Governor and Shri M. B. Kaushal, Commissioner of Police, would make the premises of Keshav Kunj. Jhandewalan, Pahar Ganj a notified place, covered by the provisions of section 8(1) of the Act. Because Keshav Kunj, Jhandewalan becomes a notified place, provisions of Section 8(2) of the Act become applicable, and the District Magistrate having jurisdiction over the premises, can get prepared the list mentioned in sub-section 2 of section 8 of the Act.
(14) Mr. R. P. Bansal has contended that in any event there has been no orders passed by the District Magistrate, or anyone else, in accordance with section 8(4) of the Act, and without an order or notification under section 8(4) of the said Act, no person who is carrying on any activity in the notified place prior to the notification under section 8(1) of the Act in the notified place, can be interfered with any manner. In other words, the activity of sale of books, which was being carried on at the notified place, cannot be interfered with.
(15) As there is no order or notification under section 8(4) of the Act, provisions of section 8(5) of the Act do not come into operation, nor does any police officer gets authority to detaain or search any person, enter the notified place. In the absence of notification/order under section 8(7) of the Act, no action can be taken under section 8(7) of the Act.
(16) Instead of proceeding in the manner postulated by the provisions of section 8 of the Act, the police authorities have chosen to seal the premises, and, as observed above, there is no power of sealing to be found in section 8 of the Act. In these circumstances, the locking and sealing of the notified premises having been done without any authority of law, the seal is liable to be broken and the lock opened. In other words, the notified place has to be de-sealed, as there can be no restraint on the free, peaceful use and occupation of the notified place, the placing of the lock on the notified place is without authority of law, such action being null and void, and the persons who had locked and sealed the premises, are liable to remove the seal and open the lock of the premises.
(17) During the course of arguments, Mr. P. S. Sharma has stated that it is open to the police to seal any premises "temporarily" to prevent the unlawful activity of the banned organisation. This is so stated in paragraph 21 of the reply. However. A that paragraph when read in full, indicates that the submission is made on the basis of the power of the Commissioner of Police under section 33 of the Delhi Police Act. Section 33 of the Delhi Police Act reads as under :-
33.Issue of order for prevention of riot, etc.-(1) In order to prevent or suppress any riot or grave disturbance of peace, the Commissioner of Police may temporarily close or take possession of any building or other place and may exclude all or any persons there from, or may allow access thereto to such persons only and on such terms as he shall deem expedient and all persons concerned shall be bound to conduct themselves in accordance with such orders as the Commissioner of Police may make and notify in exercise of his powers under this section.
(2)If the lawful occupant of such building or place suffers any loss or injury by reason of the action taken under sub-section (1), he shall be entitled, on an application made therefore to the competent authority within one month from the date of such action, to receive reasonable compensation for such loss or injury, unless such action was in the opinion of such competent authority rendered necessary either by the use to which such building or place was put, or intended to be put, or by the misconduct of persons having access thereto.
(3)In the event of any dispute in relation to the amount of compensation payable under sub-section - (2) or the person to whom such amount shall be payable, the matter shall be referred by the competent authority to the District Collector whose decision shall be final.
(18) Mr. P. S. Sharma has, however, not produced before us any order of the Commissioner of Police passed in accordance with the provisions of section 33 of the Delhi Police Act. In my opinion, as the Commissioner of Police has not acted in accordance with the provisions of section 33 of the Delhi Police Act. it is not permissible to the Commissioner of Police, in the facts and circumstances of the instant case, without an order passed under section 33 of the Delhi Police Act, to proceed to seal the premises at Keshav Kunj, Jhandewalan. I am of this view, in as much as the power exercisable under Section 33 of the Delhi Police Act is a statutory power, and the statutory power can be exercised in the manner postulated by the statute, not otherwise.
(19) No order having been passed under section 33 of the Delhi Police Act, its provisions cannot be invoked.
(20) The power to seal any premises being statutory power, exercise of such power cannot be incidental power of the Commissioner of Police, incidental to the issuance of the order dated 12-12-1992, notifying the Keshav Kunj, Jhandewalan premises from where the petitioners are carrying on business of sale of books
(21) A perusal of the order of Shri M. B. Kaushal, Commissioner of Police, dated 12-12-1992, clearly indicates that he is referring to and relying upon the order passed on 12-12-1992, by order of and on behalf of the Lt. Governor, and the notification of the Ministry of Home Affairs, No. S.O. 901 (E) dated 1-0-12.1992. He does not invoke the powers under section 33 of the Delhi Police Act, and so such "incidental powers" cannot be said to have been exercised by him. In any case, in my opinion, when the statutory powers to take a particular action exist, the same action cannot be taken in exercise of any purported incidental power.
(22) In the circumstances I order and direct that as the premises have been sealed without authority of law, the seal on the Keshav Kunj, Jhandewalan, New Delhi, premises of the petitioners, be removed, and the lock placed on the Keshav Kunj, Jhandewalan, New Delhi premises of the petitioners unlocked forthwith.
CR.Misc. 103 of 1993 is disposed of.
Jaspal Singh, J.
(23) The matter, unlike Franz Kafka's last unfinished novel Das Schloss (which is seeing scholars and litterateurs falling over themselves to find symbolism in it) is too simple and straight. And all the hues have already been captured in the convass prepared by brother Mahinder Narain, J. However, I deem it necessary to append a note of my own.
(24) That the Unlawful Activities (Prevention) Act, 1967 does not authorise sealing of a premises was not disputed. Refuge, however, was sought under sub-section (1) of Section 33 of the Delhi Police Act, 1978 under which a premises may be sealed only in order to "prevent or suppress any riot or grave disturbance of peace" and for no other reason. However, the respondents say that they sealed the premises "to prevent the unlawful activities of the banned organisation", a reason which shies away from touching even the periphery of the statutory conditions.
(25) And then, it is only the Commissioner of Police who alone, and that too only on being satisfied about the need to prevent or suppress any riot or grave disturbance of peace, can "clove or take possession" of any building. That the Commissioner of Police was so satisfied, and that it was he who got the premises sealed is not even obliquely suggested or pleaded. Rather, we are told that the feat was performed by an official who is not even of the rank of an Inspector of Police with the Commissioner of Police nowhere in the picture. A citizen was thus deprived of his roof without the sanction and. authority of law and that too by those who otherwise swear by it. - Was it not the Roman poet Juvenal who said, "Quis custodies Ipso Custodes?" (who is to guard the guards themselves?)
(26) The seal be removed and possession of the premises be restored and that too forthwith.