IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/10/2002
CORAM
THE HONOURABLE MR. JUSTICE V.KANAGARAJ
Writ Petition No.24687 of 2002
Dharapuram Recreation Club
rep. by its President
D.Rathinaswamy.
Dharapuram
Erode District. .. Petitioner
-Vs-
1. The Superintendent of Police,
Erode District,
Erode.
2. The Deputy Superintendent of
Police, Dharapuram,
Erode District.
3. The Inspector of Police,
Kundadam Police Station,
Erode District. .. Respondents
Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Mandamus, as stated therein.
For petitioner : Mr.K.Mohan Ram
For respondents: Mr.S.Venkatesh, A.G.P.
:O R D E R
Mr.S.Venkatesh, learned Additional Government Pleader, takes notice on
behalf of the respondents.
2. Writ Petition praying to issue a Writ of Mandamus
forbearing the respondents herein and their subordinate officials from in any
manner interfering with the rights of the members of the petitioner Club to
play the game of rummy with stakes and other indoor games in the premises of
the petitioner Club at No.5/157, Pollachi Dharapurm Road, Chandrapuram,
Munduvelampatti Village, Poolavadi 642 206, Dharapuram Taluk, Erode District.
3. In the affidavit filed in support of the writ petition,
the petitioner would give the details regarding the existence of their club,
its objectives, its membership and the games played therein with a sporting
interest and some members of the club play games of bridge and rummy, in
accordance with the memorandum and bylaws framed with the Registrar of
Societies.
4. The petitioner club would further submit that the troubles
given to their club activities by the third respondent leading to the
petitioner to file a writ petition in W.P. No.4870 of 2002 praying for the
similar relief extracted supra and this Court also passed its order on
19.2.2002.
5. The petitioner would further submit that the petitioner
Club, without violating the statutory provisions, is carrying on with its
activities and that the respondents have no manner of any right to interfere
with such of the legal rights of the petitioner Club; that in spite of the
order dated 19.2.2002, the third respondent has inspected the Club several
times only to find no illegal activity or gambling taking place within the
club premises and the second respondent also started insisting the petitioner
to remove the sign board of the club and that the club should be closed and in
spite of proper explanation offered by the petitioner Club, ignoring the same,
the second respondent has instructed the third respondent to issue a notice
dated 21.3.2002 to the petitioner club making a mention of the order of this
court and stating that the petitioner is misusing the orders of this Court and
conducting gambling in the club premises and instructed the petitioner to
close down the club; that the petitioner, on receipt of the said notice, sent
a detailed reply to the respondents on 22.3 .2002, but still, the threat
continues; that other legal notices have also been served on the respondents
by the petitioner club, and therefore, terming that such activities of the
respondents amount to contempt of court, would ultimately pray to the relief
extracted supra.
6. During arguments, the learned counsel appearing on behalf
of the petitioner Club, besides citing Section 5 of the Gambling Act and the
notice issued by the third respondent, would submit that the contents of the
notice dated 21.3.2002 are to the effect that getting an order from the High
Court for playing rummy, the members of the petitioner Club are indulging in
gambling and there are sufficient reasons for initiating legal action against
them, and therefore the notice directs the petitioner to close down the club,
immediately after the receipt of the said notice.
7. The learned counsel would cite an order of this Court
delivered in Sundaram VS. The State by the Sub-Inspector of Police reported
in 1983 L.W. (Crl.) 183, wherein it is held therein:
“The running of a common gaming house is a primordial requisite before
anyone can be convicted under Sections 8 or 9 of the Madras Gaming Act.
Beforeever a person can be convicted under Section 8 or under Section 9, there
must be proof that a common gaming house was being run by someone and that
such place was being made use of for gaming activities. In the instant case,
there is absolutely no mention in the report about anybody running a common
gaming house. All that is stated is that the 10th petitioner (watchman) had
permitted the other petitioners to play cards’ games inside the premises.
There is absolutely no mention about the 10th petitioner permitting the use of
the premises for gaming activities with a view to derive profit or gain for
himself.”
“In this case, in spite of the legal position being well settled, the
police authorities, particularly the lower strata of Officers seem to be
completely unaware of the provisions of law. It is not known whether their
ignorance of the correct legal position is on account of lack of proper
instructions or due to a wanton attitude to flout the law. On this one ground
alone, the proceedings pending before the Court below deserve to be quashed.
There was no urgency in the matter, and the Sub Inspector could have very well
obtained a search warrant and then proceeded to the premises to make a search
of it.”
Yet another order would also be cited by the learned counsel, which was
delivered by a single Judge of this Court in W.Ps. Nos.14239 and 1 4240 of
2002 dated 29.4.2002, wherein the learned Judge has evolved certain principles
and issued directions to the respondents therein.
8. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for the
petitioner and the learned Additional Government Pleader (Writs) as well, it
comes to be known that in spite of certain directions having been issued by
this Court in the earlier order made in W.P. No.4870 of 2002 dated 19.2.2002,
the petitioner, citing a letter addressed to its Club by the third respondent,
the Inspector of Police, and alleging that it is violative of the rights of
the petitioner Club to have their club activities, and therefore, seeking
further directions, has come forward to file the above writ petition.
9. In the notice dated 21.3.2002 issued by the third
respondent to the petitioner Club, it is generally alleged that in the name of
playing rummy, the petitioner club is carrying on gambling within the club
premises, and therefore, advising the club authorities to close down the club
activities, the said notice has been issued.
10. Though the order of this Court passed earlier gives the
outline of the code of conduct of the club activities as well as the ambit of
exercising jurisdiction by the respondents, still, in practice, whether some
or any of the activities of the members of the petitioner club within the
premises, is actionable by the respondents or not, is to be decided from the
particular and specific acts being perpetrated by the club. But the notice
issued by the third respondent is in a generalised manner stating that the
activities being carried on, particularly, the game played is not rummy, but
gambling, which is within the prohibitive degree, and therefore, would advise
the petitioner to close down the club activities, as a whole. No law permits
the respondents to pass an order of such nature advising to close the
activities of the club as a whole especially when it is licenced by the
licensing authorities in exercise of their legal powers. What the respondents
are empowered by law is that in case of any specific act takes place in the
club which is violative of the criminal laws, prosecution could be launched
and the respondents cannot dictate terms to the petitioner club either to
close the club or to prevent them from having their daily routine club
activities.
11. However, in the second order cited by the learned counsel
extracted supra from W.P. Nos.14239 and 14240 of 2002 dated 29.4.2002, since
it gives more clarity as to the rights of the parties such as that of the
petitioner and the respondents, adopting the same, this Court is inclined to
pass the following order.
In result, the above writ petition is disposed of with the following
directions:
(i) So long as the petitioner club or their members carry on lawful
activities, the respondents shall not interfere. However, if the respondents
have specific information or bona fide suspect that the activities carried on
by the petitioner club or their members are not in accordance with the
statutory provisions, or the respondents have reason to believe that there is
a violation of the provisions of the Gaming Act or any other enactment, it is
well open to the respondents or their subordinates to enter the petitioner
club premises, conduct investigation, question those who involved themselves
in such activities and take appropriate action.
(ii) It is open to the petitioners or their members to defend
themselves in case of any prosecution levelled and it is equally open to them
to challenge the action of the respondents if it is not in accordance with
law.
(iii) The respondents or their subordinates or their men shall not be
entitled to enter into the club premises or question the office bearers or
other members of the club, so long as the club members confine their club to
lawful activities as is permissible in law and if specific information is
received, after recording the same in the Station Records, the respondents may
enter, investigate, question the members, proceed further according to the
gravity of the offence or the violation detected, as the case may be.
However, in the circumstances of the case, there shall be no
order as to costs.
Index:Yes
Internet:Yes
gs.
To
1. The Superintendent of Police,
Erode District,
Erode.
2. The Deputy Superintendent of
Police, Dharapuram,
Erode District.
3. The Inspector of Police,
Kundadam Police Station,
Erode District.