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Mithra Resorts & Club Private Limited, Rep. by its Secretary, V. Vinoth Kumar v/s The State of Tamil Nadu,Rep. by its Secretary to Government, Home Department, Chennai & Others

    W.P. No.9250 of 2019 & W.M.P. No.9792 of 2019
    Decided On, 27 August 2019
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
    For the Petitioner: K. Govi Ganesan, Advocate. For the Respondents: R1 to R4, E. Neelakandan, Government Advocate.


Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, forbearing the Respondents from interfering with the day to day affairs of the Petitioner's club, without any reasonable basis, including that of the petitioner's lawful, cultural and recreational activities in its premises at No.286, Annapathai, Vaikkalpalam, Perur Main Road, Coimbatore District.)

Heard Mr. K. Govi Ganesan, Learned Counsel for the Petitioner and Mr. E. Neelakandan, Learned Government Advocate appearing for the Respondents and perused the materials placed on record, apart from the pleadings of the parties.

2. The Writ Petition has been filed to forbear the Respondents from interfering with the day to day affairs of the Club of the Petitioner without any reasonable basis including that of the lawful, cultural and recreational activities in the Club of the Petitioned at No. 286, Annapathai, Vaikkalpalam, Perur Main Road, Coimbatore District.

3. It is submitted by the Learned Counsel for the Petitioner that the Petitioner has obtained the required licences and certificates under the applicable enactments including the Tamil Nadu Public Buildings (Licencing) Act, 1965, and that copies of the same have been produced. In support of the relief claimed, reliance is placed by the Learned Counsel for the Petitioner in the decision of the Learned Judge of this Court in the order dated 05.03.2012 in W.P. No. 2972 of 2012, which has been disposed with the following directions:-

"11. Therefore, in the light of the aforesaid facts and law, I am inclined to follow the earlier judgment dated 04.11.2011 made in W.P. No. 21620 of 2011 and dispose of this writ petition with the following conditions:

a. The petitioner association shall not indulge in any illegal activity other than playing Rummy (13 cards) with stakes by its members and guests;

b. If there is any evidence of gambling in some other way, the respondent police have a right to enter the premises of the petitioner's association, inspect and take further action as per law;

c. The respondent police are also advised not to disturb the petitioner association frequently under the guise of inspection as it would disturb the peace harmony of the petitioner association.

d. The petitioner and the members of the petitioner Club are entitled to carry on lawful activities within their premises and there should not be any interference from the police authorities, so long as their activities are not in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930;

e. In the normal circumstances, there should be no interference in the lawful functioning of the Clubs, by the Police. It is not permissible for the police to enter the Club premises as a routine measure, so long as the Clubs are functioning within the frame work of law;

f. If the police authorities have specific information or reasonable doubt that the activities carried on by the Club or its members are not in accordance with law or they indulge in unlawful activities, in violation of the provisions of the Public Gambling Act, 1867/Tamil Nadu Gaming Act, 1930 or any other enactment, it would be open to them, after recording reasons in the General Diary maintained in the Police Station, to proceed to enter the Club premises, conduct investigation, interrogate those who involve themselves in such activities and take appropriate action on merits and as per law;

g. While exercising the powers conferred on the Police authorities, they should follow the mandatory provision as contained in Section 5 of the Tamil Nadu Gaming Act, 1930 / Public Gambling Act, 1867;

h. It is always open to the Club or its members to challenge the action taken by the Police, if it is not in accordance with law;

i. In case the Police authorities are of the opinion that a situation has arisen to suspend the operation of the Club in exercise of the powers conferred, they have to issue an order in writing. When there is no authority to the Police to issue an order of suspension orally, they are not entitled to pass such oral orders; and

j. Before passing orders for the purpose of closure of the Club, in exercise of the powers conferred on the authorities, they should follow the principles of natural justice. The Club should be given an opportunity to submit their objections and if so desired, a further opportunity of personal hearing should also be given."

4. Learned Additional Government Pleader appearing for the Respondents submits that the aforesaid decision passed by the Learned Judge of this Court, which is relied by the Learned Counsel for the Petitioner, has been partly set aside by order dated 06.10.2017 in W.A. No. 296 of 2013 in which it has been held as follows:-

"8. We find much force in the contention of the learned Special Government Pleader that the respondent-Association by virtue of the order of the learned Single Judge cannot prevent the Police Personnel to do their lawful duty. Therefore, the order passed by the learned Single Judge with regard to directions (a) & (e) are unsustainable.

9. The other submission of the learned Special Government Pleader is that the stake involved in playing the game of rummy amounts to gambling. In this regard, it is pertinent to quote the Judgment of Constitution Bench of the Hon'ble Supreme Court with regard to gambling in State of Bomaby vs. R.M.D. Chamarbagwala [AIR 1957 SC 699], wherein the Hon'ble Apex Court held as follows:-

"37. From ancient times seers and law givers of India looked upon gambling as a sinful and pernicious vice and deprecated its practice. Hymn XXXIV of the Rigveda proclaims the demerit of gambling. Verses 7, 10 and 13 say:

“7. Dice verily are armed with goads and driving hooks, deceiving and tormenting, causing grievous woe. They give frail gifts and then destroy the man who wins, thickly anointed with the player's fairest good.

10. The gambler's wife is left forlorn and wretched: the mother mourns the son who wanders homeless. In constant fear, in debt, and seeking riches, he goes by night unto the home of others.

13. Play not with dice: no, cultivate thy cornland. Enjoy the gain, and deem that wealth sufficient. There are thy cattle, there thy wife, O gambler. So this good Savitar himself hath told me.”

The Mahabharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom. Manu forbade gambling altogether. Verse 221 advises the king to exclude from his realm gambling and betting, for those two vices cause the destruction of the kingdom of princes. Verse 224 enjoins upon the king the duty to corporally punish all those persons who either gamble or bet or provide an opportunity for it. Verse 225 calls upon the king to instantly banish all gamblers from his town. In verse 226 the gamblers are described as secret thieves who constantly harass the good subjects by their forbidden practices. Verse 227 calls gambling a vice causing great enmity and advises wise men not to practice it even for amusement. The concluding verse 228 provides that on every man who addicts himself to that vice either secretly or openly the king may inflict punishment according to his discretion. While Manu condemned gambling outright, Yajnavalkya sought to bring it under State control but he too in verse 202(2) provided that persons gambling with false dice or other instruments should be branded and punished by the king. Kautilya also advocated State control of gambling and, as a practical person that he was, was not averse to the State earning some revenue therefrom. Vrihaspati dealing with gambling in Chapter XXVI, Verse 199, recognises that gambling had been totally prohibited by Manu because it destroyed truth, honesty and wealth, while other law givers permitted it when conducted under the control of the State so as to allow the king a share of every stake. Such was the notion of Hindu law givers regarding the vice of gambling. Hamilton in his Hedaya Vol. IV, book XLIV, includes gambling as a kiraheeat or abomination. He says:

“It is an abomination to play at chess, dice or any other game; for if anything is staked it is gambling, which is expressly prohibited in the Koran; or if, on the other hand, nothing be hazarded it is useless and vain”.

41. It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disfavour in England, Scotland, the United States of America and in Australia in the cases referred to above. We find it difficult to accept the contention that those activities which encourage a spirit of recklesss propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word “trade”, “business”, or “intercourse”. We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra-commercium although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution."

Further, in the concluding paragraph No.46, the Hon'ble Supreme Court has held as follows:-

"46. For the reasons stated above, we have come to the conclusion that the impugned law is a law with respect to betting and gambling under Entry 34 and the impugned taxing section is a law with respect to tax on betting and gambling under Entry 62 and that it was within the legislative competence of the State Legislature to have enacted it. There is sufficient territorial nexus to entitle the State Legislature to collect the tax from the petitioners who carry on the prize competitions through the medium of a newspaper printed and published outside the State of Bombay. The prize competitions being of a gambling nature, they cannot be regarded as trade or commerce and as such the petitioners cannot claim any fundamental right under Article 19(1)(g) in respect of such competitions, nor are they entitled to the protection of Article 301. The result, therefore, is that this appeal must be allowed and the orders of the lower courts set aside and the petitions dismissed and we do so with costs throughout. The state will get only one set of costs of hearing of this and Appeals Nos. 135, 136, & 187 of 1956 throughout."

The Constitution Bench of the Hon'ble Supreme Court of India has categorically held in the aforesaid judgment that the prize competitions being of a gambling nature, they cannot be regarded as trade or commerce and as such, the respondent / petitioner cannot claim as fundamental right under Article 19(1)(g) in respect of such competitions, or they are entitled to the protection under Article 301. 10. Considering the fact that gambling is an evil and it is rampant, that gaming houses flourish as profitable business and that detection of gambling is extremely difficult. Further, in view of the Judgment of Constitution Bench of the Hon'ble Supreme Court in State of Bomaby vs. R.M.D. Chamarbagwala , (referred supra) and the reasons mentioned above, we are of the considered view that the order passed by the learned Single Judge insofar as the directions (a) & (e), are not sustainable and the same are set-aside and the other directions given by the learned Single Judge remain unaltered."

Learned Additional Government Pleader appearing for the Respondents, on instructions, further states that the Club of the Petitioner has been inspected on 17.08.2019 and it has been found to be functional.

5. In view of the aforesaid submissions made by the Learned Counsel for both sides, the following directions are issued:-

(i) the Petitioner and its members are entitled to carry on lawful activities within their premises and normally there would not be any interference from the police authorities so long as their activities are not in violation of the provisions of any law including the Public Gambling Act, 1867, and Tamil Nadu Gaming Act, 1930;

(ii) if the Police Authorities have specific information or reasonable doubt that the activities carried on by the Club or its members are not in violation of law or they indulge in unlawful activities including those prohibited by the provisions of the Public Gambling Act, 1867,

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and Tamil Nadu Gaming Act, 1930, it would be open to them, after recording reasons in the General Diary maintained in the Police Station, to proceed to enter the club premises, conduct investigation, interrogate those who are involved in such activities and take appropriate action in accordance with law; (iii) the Police Authorities shall not otherwise unnecessarily disturb the activities of Club of the Petitioner under the guise of inspection; (iv) while exercising the powers conferred on the police authorities, they shall strictly follow the procedure prescribed by law; (v) it is always open to the Club or its members to challenge the action taken by the Police, if it is not in accordance with law; (vi) the Club shall comply with the requirements of the police authorities to install CCTV cameras at the locations ear marked and shall furnish the footages to the police authorities, whenever required; and (vii) it shall be incumbent upon the Club to ensure that all licences required under various enactments applicable to the Club are in force in order to avail the benefit of this order and in the event of the same getting expired by lapse of time, suspended or cancelled by the concerned authorities, the Club shall not be entitled to rely on this order to avoid the consequences arising therefrom. 6. Accordingly, the Writ Petition is disposed on the aforesaid terms. Consequently, connected Miscellaneous Petition is closed. No costs.
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