# Bharat Bhushan Thapar v. Union of India & Ors

- **Citation:** (2019) 3 ILRA 1246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-25
- **Case number:** Writ C No. 23672 of 2019
- **Bench:** Shashi Kant Gupta, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-bhushan-thapar-v-union-of-india-ors-44653
- **Pages:** 7

## Headnote

Benefits & Services) Act, 2016 - Section 33 -
prohibits discloser of information-without
prior order of Judge of High Court- even
individual can oppose discloser.

B. Aadhar (Targeted Delivery of Financial
& other Subsidies, Benefits & Services)
Act, 2016 - Section 47 - individual can
make complaint.

Writ Petition disposed of (E-9)

List of cases cited: -

## Text

1246 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A1246

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2019

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ C No. 23672 of 2019

Bharat Bhushan Thapar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hridesh Batra, Sri Anurag Khanna, Sri
Himadari Batra

Counsel for the Respondents:
Sri Sabhajeet Singh

A. Right to Privacy - Aadhar (Targeted
Delivery of Financial & other Subsidies,
Benefits & Services) Act, 2016 - Section 33 -
prohibits discloser of information-without
prior order of Judge of High Court- even
individual can oppose discloser.

B. Aadhar (Targeted Delivery of Financial
& other Subsidies, Benefits & Services)
Act, 2016 - Section 47 - individual can
make complaint.

Writ Petition disposed of (E-9)

List of cases cited: -

1. K.S. Puttaswamy (Rtrd) & anr. Vs UOI & ors
(2019) 1 SCC 1

(Delivered by Hon'ble Shashi Kant
Gupta, J. &
Hon'ble Saurabh Shyam Shamshery, J.)

1. Facts of the present case as
narrated in the writ petition are as
follows:-

(i) Respondent nos.4 and 5 were
husband and wife and they brought a plot
no.869, measuring area of 521 square
yard, situated at Colony known as
Shalimar Garden, Extention-1, Village
Pasonda,
Loni,
District
Ghaziabad,
through a sale deed dated 19.02.1981
from company known as Mahalakshmi
land & Finance Pvt Ltd.

(ii) As per the petitioner's case,
Shri Jai Prakash Gupta (respondent no.4)
and Smt Kiran Bedi Gupta (respondent
no.5) died on 12.12.1984 and 22.12.2001
respectively.

(iii) The said plot was sold to
Smt. Raksha Devi Thapar (mother of the
petitioner) and Kumari Madhu Thapar
(sister of the petitioner) by a registered
sale deed dated 12.02.1990 by the eldest
son of Shri Jai Prakash Gupta through
power of attorney.

(iv) One Shri Pramod Kumar
Singh Chauhan along with some anti
social persons when tried to disposses the
petitioner from the said plot an FIR was
also lodged against him on 04.11.2012.

(v) The petitioner also filed a
suit bearing Suit no.2603 of 2012 against
Shri Pramod Kumar Singh Chauhan for
seeking
permanent
injunction
for
restraining him from interfering in the
peace full possession of the petitioner on
the said plot and the Additional Civil
Judge
(Senior
Division)
Ghaziabad
granted permanent injunction against him
on 13.12.2012. Hence Shri Pramod
Kumar Singh Chauhan challenged the
same, by way of filling FAFO No.97 of
2014 and the court below vide order dated
09.01.2014, stayed the order dated
13.12.2012. The FAFO is still pending for
adjudication before the Court.

(vi) During the pendency of the
said FAFO, Shri Pramod Kumar Singh
Chauhan, being hand in glove with Shri
3 All. Bharat Bhushan Thapar Vs. Union of India & Ors.
1247
Anil Kumar Agarwal by setting up some
imposters as Shri Jai Prakash Gupta
(respondent No.4) and Smt Kiran Devi
Gupta (respondent No.5) sold the plot-inquestion to one Smt Rekha Agarwal wife
of Shri Anil Kumar Agarwal.

(vii) As soon as the petitioner
came to know about the aforesaid fraud,
he lodged an FIR dated 02.03.2015
bearing no. 222 of 2015, under Sections
420, 467, 468, 471, 506 and 120B of IPC
against
Shri
Pramod
Kumar
Singh
Chauhan, Anil Agarwal, Rekha Agarwal,
Suresh Chand Mittal and Km. Disha
Srivastava alleging that these accused
have fraudulently executed the sale deed
by posing them as Jai Prakash Gupta and
Kiran Gupta.

(viii)
After
investigation,
charge-sheet
was
submitted
on
11.06.2015 and the charges were framed
under Sections 420, 467, 468, 471, 120-B
of IPC.

(ix) Respondent nos. 4 and 5
had filed a Criminal Revision before this
Court, which is still pending. The
petitioner came to know that while filling
the said criminal revision, the respondent
nos. 4 and 5 had attached the copy of
Aadhaar Card bearing no. 642116310070
in the name of Shri Jai Prakash Gupta and
Aadhaar Card No. 3259534296 in the
name of Shri Kiran Bedi Gupta.

(x) On inquiry, petitioner came
to know that the Aadhaar Card No.
3259534296 was issued to one Smt.
Roshanara, however, during upgradation
it was fraudulently made in the name of
Smt. Kiran Prakash Gupta. Similarly, the
other Aadhaar Card No.642116310070
was earlier issued to one Ashok son of
Rampal however, during upgradation,
name on the Aadhaar Card was changed
to Jai Prakash Gupta. Hence, the present
writ petition.

2. Shri Anurag Khanna, Senior
Advocate assisted by Shri Himadari
Batra, learned counsel for the petitioner
submitted that although respondent nos. 4
and 5 have already died, still the, Aadhaar
Cards
were
fraudulently
prepared/upgraded in the name of the
respondent nos. 4 and 5 in order to
execute a sale deed. Learned Senior
Counsel
further
submitted
that
the
petitioner has approached the Aadhaar
Authority
to
give
details
of
the
abovementioned two Aadhaar Cards,
however, Aadhaar Authority have refused
to supply the same as being barred by
Section 33 Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits
and Services) Act, 2016 (hereinafter
referred as Aadhaar Act). Learned Senior
Counsel has also relied upon certain
informations
received
from
Election
Commission of India regarding voter
identity card of respondent nos.4 and 5.

3. Learned Senior counsel further
submitted that prior to the amendment in
the Aadhaar Act, word "District Judge"
was mentioned in Section 33 of the
Aadhaar Act which is now substituted by
"Judge of High Court", therefore, the
petitioner has no other remedy to file the
present writ petition before this Court in
order to seek direction from this Court for
calling the records of these Aadhaar Cards
from the Aadhaar Authority in order to
ascertain the correct fact.

4. Learned Senior Counsel further
submitted that Section 47 of the Aadhaar
Act dealing with cognizance of offence
has also been amended and now even
''Individual' is also authorised to file
complaint before the competent court. He
has also relied upon the judgment passed
by Hon'ble Supreme Court in the matter
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
of K.S. Puttaswamy (Retired) And
Another Vs. Union of India and others
reported in (2019) 1 SCC 1, in order to
show that certain modifications were
recommended by the Hon'ble Supreme
Court to make this Act more transparent.
Learned Senior Counsel has vehemently
argued that it is a fit case where this Court
could call the records and verify the
allegations made by the petitioner and on
the
basis
of
said verification,
the
petitioner could lodge a complaint.

5. On the other hand, learned
counsel appearing on behalf of the
respondents submitted that in pursuance
of the judgment passed by Hon'ble
Supreme
Court
K.S.
Puttaswamy
(Supra), certain amendments have been
placed before the Parliament through the
Aadhaar and other Laws Amendment Act,
2019 which has been passed by both the
Lok Shabha and Rajya Sabha and the
President
have
given
accent
on
23.07.2019, and as such, now an
''individual' can also make a complaint
before the competent court for any
offence punishable under Sections 34 or
35 or 36 or 37 or 40 or 41 of the Aadhaar
Act. Therefore, there is no need to
exercise the powers conferred by this
Court granted under Section 33 of the
Aadhaar Act to summon the records as
presently
allegations
made
by
the
petitioner are not established even prima
facie and there is no material to
substantiate the averments mentioned in
the writ petition.

6. Heard learned counsel for the
parties and perused the record.

7. In order to appreciate the rival
submissions advanced by learned counsel
for the parties, relevant provisions of the
''Aadhaar Act' as amended are mentioned
hereinafter;-

"28.
Security
and
confidentiality of information-

(1) The Authority shall ensure
the security of identity information and
authentication records of individuals.

(2) Subject to the provisions of
this Act, the Authority shall ensure
confidentiality of identity information and
authentication records of individuals.

(3) The Authority shall take all
necessary measures to ensure that the
information in the possession or control
of the Authority, including information
stored in the Central Identities Data
Repository, is secured and protected
against access, use or disclosure not
permitted under this Act or regulations
made thereunder, and against accidental
or
intentional
destruction,
loss
or
damage.

(4) Without prejudice to subsections (1) and (2), the Authority shall--

(a)
adopt
and
implement
appropriate technical and organisational
security

measures;

(b) ensure that the agencies,
consultants, advisors or other persons
appointed or engaged for performing any
function of the Authority under this Act,
have in place appropriate technical and
organisational security measures for the
information; and

(c) ensure that the agreements
or arrangements entered into with such
agencies, consultants, advisors or other
persons, impose obligations equivalent to
those imposed on the Authority under this
Act,
and
require
such
agencies,
consultants, advisors and other persons to
act
only on
instructions
from
the
Authority.
3 All. Bharat Bhushan Thapar Vs. Union of India & Ors.
1249

(5) Notwithstanding anything
contained in any other law for the time
being in force, and save as otherwise
provided in this Act, the Authority or any
of its officers or other employees or any
agency
that
maintains
the
Central
Identities Data Repository shall not,
whether during his service or thereafter,
reveal any information stored in the
Central Identities Data Repository or
authentication record to anyone:"

"Section 33. Disclosure of
Information in certain Cases:- ((1)
Nothing contained in sub-section (2) or
sub-section (5) of section 28 or subsection (2) of section 29 shall apply in
respect of any disclosure of information,
including
identity
information
or
authentication records, made pursuant to
an order of a court not inferior to that of
a District Judge:

Provided that no order by the
court under this sub-section shall be
made without giving an opportunity of
hearing to the Authority.

(2) Nothing contained in subsection (2) or sub-section (5) of section
28 and clause (b) of sub-section (1), subsection (2) or sub-section (3) of section
29 shall apply in respect of any disclosure
of
information,
including
identity
information or authentication records,
made in the interest of national security in
pursuance of a direction of an officer not
below the rank of Joint Secretary to the
Government of India specially authorised
in this behalf by an order of the Central
Government:

Provided that every direction
issued under this sub-section, shall be
reviewed by an Oversight Committee
consisting of the Cabinet Secretary and
the Secretaries to the Government of
India in the Department of Legal Affairs
and the Department of Electronics and
Information Technology, before it takes
effect:

Provided
further
that
any
direction issued under this sub-section
shall be valid for a period of three months
from the date of its issue, which may be
extended for a further period of three
months after the review by the Oversight
Committee.

Provided
further
that
any
direction issued under this sub-section
shall be valid for a period of three months
from the date of its issue, which may be
extended for a further period of three
months after the review by the Oversight
Committee."

Amended provision:-

12. In section 33 of the
principal Act,--

(i) in sub-section (1),--

(a) for the words "District
Judge", the words "Judge of a High
Court" shall be substituted;

(b) in the proviso, after the
words "hearing to the Authority", the
words "and the concerned Aadhaar
number holder" shall be inserted;

(c)
after
the
proviso,
the
following proviso shall be inserted,
namely:--"Provided further that the core
biometric
information
shall
not
be
disclosed under this sub-section.".

(ii) in sub-section (2), for the
words
"Joint
Secretary",
the
word
"Secretary" shall be substituted.

34. Penalty for impersonation
at
time
of
enrolment.-
Whoever
impersonates or attempts to impersonate
another person, whether dead or alive,
real or imaginary, by providing any false
demographic information or biometric
information, shall be punishable with
imprisonment for a term which may
extend to three years or with a fine which
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
may extend to ten thousand rupees or
with both.

47. Cognizance of offences-(1)
No court shall take cognizance of any
offence punishable under this Act, save on
a complaint made by the Authority or any
officer or person authorised by it.

(2) No court inferior to that of a
Chief Metropolitan Magistrate or a Chief
Judicial Magistrate shall try any offence
punishable under this Act."

Amended provision-

18. In Section 47 of the
principal Act, in sub-section (1), the
following proviso shall be inserted,
namely:-

"Provided that the court may,
on a complaint made by an Aadhar
number
holder
or
individual
take
cognizance of any offence punishable
under Section 34 or 35 or 36 or 37 or 40
or Section 41."

8. The Hon'ble Supreme Court in
the matter of K.S. Puttaswamy (Supra)
upheld the constitutional validity of
Aadhaar Act however, some of the
provisions were struck down/read down
and clarified. For the purpose of the
present case. Following excerpts of the
judgment are relevant from the judgment
passed by the Apex Court :-

Dr. A.K. Sikri, J:-

"513.5. Section 33(1) of the Act
prohibits
disclosure
of
information,
including
identity
information
or
authentication records, except when it is
by an order of a court not inferior to that
of a District Judge. We have held that this
provision is to be read down with the
clarification that an individual, whose
information is sought to be released, shall
be afforded an opportunity of hearing. If
such an order is passed, in that
eventuality, he shall also have right to
challenge such an order passed by
approaching the higher court. During the
hearing before the concerned court, the
said individual can always object to the
disclosure of information on accepted
grounds in law, including Article 20(3) of
the Constitution or the privacy rights etc.

513.6. Insofar as Section 33(2)
is concerned, it is held that disclosure of
information in the interest of national
security cannot be faulted with. However,
for determination of such an eventuality,
an officer higher than the rank of a Joint
Secretary should be given such a power.
Further, in order to avoid any possible
misuse, a Judicial Officer (preferably a
sitting High Court Judge) should also be
associated with. We may point out that
such provisions of application of judicial
mind for arriving at the conclusion that
disclosure of information is in the interest
of national security, are prevalent in some
jurisdictions. In view thereof, Section
33(2) of the Act in the present form is
struck down with liberty to enact a
suitable provision on the lines suggested
above

513.7. Insofar as Section 47 of
the Act which provides for the cognizance
of offence only on a complaint made by
the Authority or any officer or person
authorised by it is concerned, it needs a
suitable
amendment
to
include
the
provision for filing of such a complaint by
an individual/victim as well whose right is
violated."

Ashok Bhushan, J:-

"789. Section 47 provides as
follows:

"47. Cognizance of Offence (1)
No court shall take cognizance of any
offence punishable under this Act, save on
a complaint made by the Authority or any
officer or person authorised by it.
3 All. Bharat Bhushan Thapar Vs. Union of India & Ors.
1251

(2) No court inferior to that of a
Chief Metropolitan Magistrate or a Chief
Judicial Magistrate shall try any offence
punishable under this Act."

798. The limitation as contained in
Section 47 in permitting taking cognizance of
any offence punishable under the Aadhaar
Act only on a complaint made by the authority
or any officer or person authorised by it, has
legislative purpose and objective, as noticed
above.
We
thus
do
not
finnd
any
unconstitutionality in Section 47 of the
Aadhaar Act."

9. The modifications/suggestion
suggested by the Supreme Court has been
taken care by the amendments made
through Amendment Act 2019 which has
been passed by the Parliament and
thereafter assented by the President.

10. The Right of Privacy is one of
the inherent rights granted by Part III of
the Constitution. Privacy is the element of
human dignity. Right of Privacy cannot
be abridged without just, fair and
reasonable law. The Hon'ble Supreme
Court has opined that the Aadhaar Act has
satisfied the triple test laid down in order
to adjudge the reasonableness of the
invasion to to privacy.

11. From the facts as narrated in the
writ petition, it is evident that the
submissions made in the writ petition are
not sufficient to make out a case under
Section
33
of
the
Aadhaar
Act.
Submission are not even substantiated by
any documentary evidence. The only
averments mentioned in the writ petition
on the issue is in paragraph 19, 20 and 21,
which are mentioned hereinafter:-

"19. That it is appropriate to
mention here that respondent no.4 and 5
in the aforementioned criminal revision
has
attached
Aadhaar
Card
No.642116310070 in the name of Shri Jai
Prakash Gupta and Aadhaar Card
No.325953054296 by the name of Shri
Kiran Bedi Gupta.

20. That it is further submitted
that the petitioner his personal contacts
came to know that the Aadhaar Card No.
325953054296
was
issued
to
Smt.
Roshanara w/o Abdul Jabbar having date
of birth shown as 1.1.1968 in the year
2011, the said Aadhaar Card was
thereafter updated and the name of Shri
Roshanara was changed to Shri Kiran
Bedi Gupta and the name of her husband
was changed to Shri Jai Prakash Gupta
and even the date of birth was changed
from 1.1.1968 to 17.5.1963.

21. That it is relevant to
mention here that the Aadhaar Card
No.325953054296 updated to Smt. Kiran
Bedi Gupta is being used by her to
represent herself as Smt. Kiran Devi
Gupta wife of Shri Jai Prakash Gupta."

The averments made in the
aforementioned paragraphs are only bald
allegations and cannot be considered to be
sufficient for the purpose of Section 33 of
the Aadhaar Act.

12. The discloser of information in
certain cases, as provided under Section
33 of Aadhaar Act which has now been
made
more
reasonable
by
recent
amendment is based on the reasoning that
the discloser of the such information can
be objected by the person concerned and
no order could be passed without hearing
the Aadhaar Authority. Aadhaar Act
provides ''protection of information',
restriction of sharing information under
Sections 28 and 29 respectively. Section
30 provides that biometric information
shall
be
deemed
to
be
''sensitive
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
information'. Therefore, these provisions
shall be taken into consideration before
passing any order under Section 33 of the
Aadhaar Act. In order to exercise power
under Section 33 of Aadhaar Act, strong
case has to be made out by the aggrieved
person. However, in the present case, the
petitioner has not able to made out a case
for calling the record under Section 33 of
the Aadhaar Act. The bald allegations
made in para 19, 20 and 21 of writ
petition are not sufficient for the purpose.
Therefore, we are of the view that in the
present
facts
and
circumstances,
jurisdiction under Section 33 of Aadhaar
Act cannot be exercised by this Court at
this stage.

13. Section 33 of the Aadhaar Act
prohibits discloser of information without
prior order of ''Judge of High Court' and
now even an individual has a right to be
heard and he can oppose discloser on
certain grounds including Article 20(3) of
the Constitution of India. These strict
provisions are for keeping information
secret and to upheld the Right of Privacy.
Therefore, before an exercise of power
under Section 33 of the Aadhaar Act, the
Court has to ascertain whether in the facts
and circumstances of the case there exists
a very strong case to exercise such power.

14. It is also relevant to note here
that Shri Jai Prakash Gupta and Shri
Kiran Bedi Gupta, who are since
deceased as per the case of the petitioner,
have been made party in the present writ
petition as respondent Nos. 4 and 5
respectively therefore, the petition is also
defective on the ground of misjoinder.

15. It may be further noted that
amended Section 47 of the Aadhaar Act
now provides right to even an ''individual'
to make a complaint before the competent
court regarding commission of offence
punishable under the Aadhaar Act.
However, the petitioner has not availed
such remedy till date.

16.

In
view
of
the
above
discussions, the present writ petition is
liable to be rejected at this stage, with the
liberty to the petitioner, if so advised to
seek remedy as provided under Section 47
of the Aadhaar Act, to file a complaint
before the competent court in accordance
with law.

With this observation, this petition
stands finally disposed of.
----------

(2019)11ILR A1252

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2019

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ C No. 24902 of 2019 connected with
other cases

Uday Pratap Singh @ Harikesh
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law-U.P. Panchayat Raj Act, 1947 -
Section 27 -District magistrate-not notified
as prescribed authority in notification u/s
27(2)-procedure under chapter XIII not
adhered-surcharge cannot be levied during
pending
enquiry-impugned
order
unsustainable.