Manoranjitham Manamyil Mandram vs The State of Tamil Nadu and Others

P.D. Dinakaran, J.—Heard both sides.

The appellant is the petitioner in W.P. No. 3466 of 2004 preferred for issue of a writ of Mandamus to forbear the respondents from preventing

the functioning of the society in the premises at No.5, Dindigul Road, Near St. John Church Junction, Trichy and also from preventing the members

of the petitioner society from playing games of Rummy, Table Tennis, Chess, Carrom Board.

The grievance of the petitioner /appellant is that the respondents are arbitrarily interfering with the affairs of their club infringing their rights

conferred under Article 19(1)(b)(c)(g) of the Constitution of India and the appearance of the respondents to the petitioner /appellant''s club would

tarnish the image of the club.

The learned single Judge, by order dated 16-11-2004, holding that the apprehension of the petitioner /appellant is uncalled for and unwarranted,

held that the respondents are only discharging their statutory function and that has to be taken in its own spirit and not otherwise. Aggrieved by the

order of the learned single Judge dated 16-11-2004, the petitioner has preferred this writ appeal.

In this regard, we are obliged to refer the decision of P. Shanmugam, J., dated 8-8-2001 in W. P. No. 3724 of 2001. wherein the object of the

Tamil Nadu Gaming Act and the power of the authorities under the Act have been dealt with. In the said decision, it is held as follows :

The Tamil Nadu Gaming Act, 1930 ( provides for punishment for gaming and keeping of common gaming houses. ''Common Gaming House''

has been defined under the Act as an enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or sued for

profit or gain to the person owning, occupying or using etc. or otherwise the premises howsoever. ''Gaming'' has been defined as wagering or

betting. Section 5 of the Act gives power to issue warrant to enter a common gaming house.

The question whether, whether or not game is of mere skill is a question of fact. In Saligram v. Emperor (1933 Calcutta 8), a learned Judge of

the Calcutta High Court, dealing with the Calcutta Police Act, held that in order to escape conviction u/s 4 of that Act, it must be shown by the

defence that to all intents and purposes, on a broad and reasonable view of the matter, the game was one of skill and nothing else. It was held that

the question whether or not the game is of mere skill for the purpose of invoking the protection of Section 50-A of the Act is a question of fact. In

M. Lal and Ors. in Re 1975 L.W. (CRL) 1 this Court, by taking a combined reading of Section 4 of the provisions of the City Police Act, held

that if a person who owns or occupies or has a use of any house or room, uses the same for the purpose of collecting or soliciting of bets, receiving

or distributing of winning or prizes of any wager is liable to be punished. Gaming by itself is playing any game, sport, past-time or exercise, lawful

or unlawful, for money or any other valuable thing which is tacked on the result of the game, i.e. which has to be lost or won according to the

success or failure of the person who is tacked. Gaming is now always associated with taking of money or monies worth on the result of a game of

pure chance of mixed skill and chance.

A Division Bench of the Andhra Pradesh High Court, in Ventrapragada Venkata Krishna Rao Vs. The District Magistrate and Another, dealing

with the Andhra Pradesh (Andhra Area). Places of Public Resort Act 1888, similar to the (Tamil Nadu) Places of Public Resort Act 1888, which

provides for licence for use of a building for public resort or entertainment, held that the restriction on the games of darts and shooting galleries on

the basis that the games are being played in places of public resort as games of chance comes within the reasonable restriction of Article 19(6) of

the Constitution. Though in this case, petitioner club cannot be called as public premises since the provisions of the Gaming Act will be in

operation, and any restriction on games of chance, therefore, cannot be held to be reasonable. It was observed by their lordships as follows :

Now, the apprehension expressed by the Government in the latter Government Order of 1958 is that though the games like darts, which are

played in amusement parks, are games of skill in technique; but, the manner in which they are actually played makes them games of chance. In

order to prevent the general public from falling a prey to this gambling practice, they imposed the restriction that games of darts in the manner in

which they are played in the place of public resort should not be allowed. This restriction is clearly conceived in the interest of general public, of

which we entertain no doubt.

Therefore, games of chance, whether they are played in public place or in a club, can always be interfered with by resorting to the provisions of the

Act.

While construing the Malwa (Madhya Bharathi) Act, a Constitution Bench of the Supreme Court, in Kishan Chander Vs. State of Madhya

Pradesh, upheld the provisions of the Act holding that there is nothing in the definition of ''gaming'' or instruments of gaming themselves which is

unreasonable or which makes them offend any of the guaranteed rights or which does not serve the essential purpose of the Act. Their Lordships

further held as follows :

The safeguards like -

(a) the existence of credible information,

(b) seizure of articles suspected to be instruments of gaming which bear out information on which action is taken, and

(c) proof to the satisfaction of the Court that there are reasonable grounds for holding that the articles are instruments of gaming, are sufficient

safeguards to ensure that there is no danger to-

(i) except to those who are proved to the satisfaction of the Court to keep a gaming house, or

(ii) who can be presumed unless the contrary to be proved to be there for the purpose of gaming"".

It was further held that since the impugned provisions are thus constitutional, the curtailment of liberty would not be except according to law and

hence, there is no breach of Article 21.

The question of whether game of rummy is a game of chance or a skill game came up for consideration before Supreme Court in State of

Andhra Pradesh Vs. K. Satyanarayana and Others, . Their Lordships, in this case, while observing that the game of rummy is not a game entirely

of chance like the ''three card game'', held that rummy requires certain amount of skill because the fall of cards has to be memorised and the

building up of rummy requires considerable skill in holding and discarding cards. It is mainly and preponderantly a game of skill. However, their

Lordship observed as follows :

Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game

of rummy or any other game played for stakes, the offence may be brought home.

Thus, if the club is involved in making a profit out of the game of rummy, then it is open to the respondents to take appropriate proceedings. As has

been held in many decisions, the question whether the petitioner club is involved in recreational activities and games of pure skill is a pure question

of fact and therefore, there cannot be a blanket order restraining the respondents from interfering with their activities.

The ratio laid down in the above case squarely applies to the instant case. Therefore, while it is the right of the appellant to have recreational

activities which are not prohibited, the respondent''s right to take appropriate proceedings against illegal games of betting, wagering, etc. is also

provided for under the Act. Therefore, there cannot be a blanket direction as prayed for by the appellant. The question whether a particular game

is a game of skill or chance is to be decided on the facts and circumstances of each case. As and when proceedings are; initiated against the

appellant in accordance with law, the appellant shall always have the right to question the same or challenge the action of the respondents if it is not

in accordance with law.

The writ appeal is disposed of accordingly. No-costs. Consequently, W. A. M./No. 32 of 2004 is closed.