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2012 DIGILAW 1709 (MAD)

P. Poovendran v. Superintendent Of Police Office

2012-04-03

K.CHANDRU

body2012
Judgment :- 1. The Writ Petitioner claiming to be an executive member of Elite Club at NSK Nagar, Tirupur District has filed the present Writ Petition. It is stated by him that the Club is a registered Society with Registration No.49 of 2011 at Tirupur District. It is also stated by the petitioner that the Club consists of people from all walks of life including the businessman, landlords, employees. It appears that it has 7 members. The Club is also having various indoor games such as Table Tennis, Carom, Chess, Billiards and outdoor games such as Tennis, Cricket, Shuttle Cork, Badminton, etc. Apart from its members are playing cards including Rummy game and playing of Rummy in the Cards is not prohibited game under the laws of the State. However, the respondents Police summoned the members of the Club and directed them not to play rummy. 2. The Office bearers of the Club informed the Police that the Club was established only for the general welfare of the public and the playing of game Rummy by its members is one of the entertainment. However, the respondents are threatening to foist cases against them. However, if any such attempt is made, it will be a serious encroachment on the petitioner's constitutional right under Article 19(1)(c) of the Constitution. Therefore, the respondents should adhere to the strict provisions under the Tamil Nadu Gaming Act or Police Act. The respondents are also not giving any written instructions and are only orally instructing the members. It is in that view of the matter, the Writ Petition is filed seeking for a direction to the respondents not to interfere with the affairs of the petitioner club including the facilities provided for playing various games including the game of playing rummy and not involving any element of gambling. 3. The Writ Petition is not filed by any person authorised by the Club. The present deponent is only an Executive Member and it is not shown under what authority he has filed the Writ Petition. In any event such an omni bus prayer cannot be granted on a mere apprehension that except ascertaining that the respondents have warned them from conducting any gambling in the club premises, there are no other averments. The present deponent is only an Executive Member and it is not shown under what authority he has filed the Writ Petition. In any event such an omni bus prayer cannot be granted on a mere apprehension that except ascertaining that the respondents have warned them from conducting any gambling in the club premises, there are no other averments. If the petitioner prohibits any laws of the State, ultimately the court in which the prosecution launched will try the matter and the petitioner will have the ample opportunities of proving their innocence before the Court. More often by getting such blanket orders, similar clubs are trying to deceive the law enforcing authorities during prosecuting them. 4. In fact even after the Division Bench order, which clearly said that no money should be involved in the matter of playing rummy, yesterday Newspaper also reported that most clubs have followed a token system. This court cannot shut its eyes from the ground reality. 5. The learned counsel for the petitioner placed reliance upon the order passed by this Court in W.P.No.17578 of 2011 dated 27.7.2011. Following the previous order, series of directions have been made both to the members of the Club and the Police. In the above case also similar direction has been issued. However, this Court is not inclined to make any such order in the absence of any factual grounds established before the court. The Writ Petition in the nature of mandamus can be permitted only when there is a legal right on the part of the petitioner and the corresponding legal obligation on the part of the respondents. 6. The circumstances under which a writ in the nature of mandamus can be issued came to be considered by the Supreme Court in several decisions. It is relevant to cite a few decisions which will have a bearing on the present case. 6. The circumstances under which a writ in the nature of mandamus can be issued came to be considered by the Supreme Court in several decisions. It is relevant to cite a few decisions which will have a bearing on the present case. In Director of Settlements, A.P. and others Vs.M.R.Apparao and another reported in (2002) 4 SCC 638, the Supreme Court set out the scope and the manner of exercise of power under Article 226 of the Constitution and in paragraph 17, it was observed as follows:- "17.) Coming to the third question, which is more important from the point of consideration of the High Court's power for issuance of mandamus, it appears that the Constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression ‘for any other purpose’. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain self-imposed limitations. The expression ‘for any other purpose’ in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. ‘Mandamus’ means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. ‘Mandamus’ means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh v. State of U.P.). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. 7. Subsequently, in Union of India and others Vs. C.Krishna Reddy reported in (2003) 12 SCC 627 , the Supreme Court held that it is only in case of failure on the part of an Office to discharge his statutory obligation, a direction will issue and there must be a legal duty imposed on the officer and the aggrieved party must have a legal right under the statute to enforce performance and in paragraph 13, it was observed as follows:- "13.) It is well settled by a catena of decisions of this Court that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. [See Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, AIR para 15, Lekhraj Sathramdas Lalvani v. N.M. Shah, Dy. Custodian cum Managing Officer and Umakant Saran (Dr.) v. State of Bihar.]" 8. The Supreme Court held that unless there is subsisting right and enforceable in a court of law and corresponding legal duty on the part of the Government, no writ will lie and any direction can be issued only in consonance with law and not in violation of statutory provisions, vide its judgment in State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Others reported in (2008) 12 SCC 675 and in paragraphs 45 and 46, it was observed as follows: "...The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a court of law. There must be corresponding legal duty on the part of the respondent Corporation or the Government which required the Corporation or the Government ‘to do that which a statute required it to do’. No such right of absorption has been shown by the petitioners. Nor could any such corresponding duty of the respondents be shown to the High Court by the employees. 46.) It is well settled that a court of law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions." 9. In the light of the above, this Court is not inclined to entertain the Writ Petition. Accordingly the writ petition stands dismissed. No costs.