Madras High Court
Royal Yanam Recreation Society vs The Commissioner on 28 April, 2023
Author: V.M.Velumani
Bench: V.M.Velumani
W.P.No.10289 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.04.2023
Pronounced on : 28.04.2023
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
W.P.No.10289 of 2022
Royal Yanam Recreation Society,
rep. by its Secretary,
Mr.P.N.V.S.S.V. Prasad Raju,
S/o.P.Bala Rama Raju,
R/No.3LH 3304,
Lanco Hills,
Manikonda,
Hyderabad. ...Petitioner
(Cause title amended vide order dated 01.06.2022 in
W.M.P.No.10746 of 2022 in W.P.No.10289 of 2022 by CVKJ)
vs.
1.The Commissioner,
Yanam Municipality,
Yanam.,
2.The Regional Administrator
-cum- Sub Divisional Magistrate,
Yanam.
3.The Member Secretary,
Yanam Planning Authority,
Yanam.
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W.P.No.10289 of 2022
4.The Superintendent of Police,
Yanam,
Puducherry - 533 464.
5.The Deputy Tahsildar,
Yanam,
Puducherry - 533 464.
6.The Circle Inspector of Police,
Yanam Police Station,
Yanam,
Puducherry - 533 464.
7.Aman Sharma,
Regional Administrator -cum- Sub Divisional Magistrate,
Yanam.
8.Shri Sunkara Swamy Naidu Welfare Organization
rep. by its President,
Mr.Sunkara Karrthik,
No.4-5-6, Pillaraya Street, K- Junction,
Yanam - 533 464. ... Respondents
(R8 impleaded vide order dated 01.06.2022 in W.M.P.No.13001 of
2022 in W.P.No.10289 of 2022)
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus
calling for the records of the 1st respondent impugned order in
No.3077 / B2 / YM / 2022 / 3, dated 15.04.2022, the 2nd respondent
impugned order in No. 14869 / SDMY / D3 / Gamble / 2021-2022,
dated 15.04.2022 and the 4th respondent impugned order in No. 469 /
SPY / DR / 2022, dated 16.04.2022, quash the same and consequently
directing the respondents not to interfere with the petitioner Society's
functioning in any manner except in accordance with law.
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W.P.No.10289 of 2022
For Petitioners : Mr.Om Prakash,
Senior Counsel
for Mr.J.Saravana Vel
For Respondents : Mr.R.Sankara Narayanan,
Additional Solicitor General
assisted by
Mr.S.Ravee Kumar,
Government Pleader (Puducherry) and
Mr.Ramasamy Meyyappan,
Government Advocate (Puducherry)
Mr.T.Sai Krishnan for R8
ORDER
(Order of the Court was delivered by V. LAKSHMINARAYANAN, J.) The writ petitioner seeks for a Writ of Certiorarified Mandamus calling for the records on the file of the 1st respondent in its proceedings in No.3077 / B2 / YM / 2022 / 3, dated 15.04.2022, of the 2nd respondent in his order in No.14869 / SDMY / D3 / Gamble / 2021-2022, dated 15.04.2022 and of the 4th respondent by his order in No. 469 / SPY / DR / 2022, dated 16.04.2022, quash the same and consequently directing the respondents not to interfere with the petitioner Society's functioning in any manner except in accordance with law.
https://www.mhc.tn.gov.in/judis 3/28 W.P.No.10289 of 2022
2.The petitioner is a Society registered under the Societies Registration Act, 1860. It started a recreational club for its members. Fearing interference by the Police, a Writ petition came to be filed before this Court in W.P.No.24852 of 2021. The prayer was to forbear the police officials from interfering with the day to day affairs and rights of the petitioner/Society in any way including playing of Rummy (13 cards) and other recreational activities without any reasonable cause. This Court disposed of the said Writ Petition in the following terms:
"5.In view of the same, the petitioner is directed to appear before the second respondent and produce all documents and thereafter the second respondent to take appropriate action. The second respondent is reminded that if the petitioner is otherwise entitled to carry on with his club activities, without any specific complaint or information, the club activities not to be interfered with."
3.Thereafter, the petitioner had made an application for grant of license to the 1st respondent. The 1st respondent had also granted a licence on 18.01.2022. The application for license had been filed in https://www.mhc.tn.gov.in/judis 4/28 W.P.No.10289 of 2022 December 2021 and the license was granted in the year 2022. The license was sought for under Section 355 of the Puducherry Municipalities Act, 1973. Even in the application, the deponent, who is the Secretary of the Society, had stated that he would be the licensee and the purpose for which the license has been sought for is for running recreation games including other recreational activities that are legal and in accordance with law. The applications further stated that the name and style of the trade is M/s.Royal Yanam Recreational Society. The area covered for the purpose of business was given as 5,000 sq.ft.
4.The Commissioner, Yanam Municipality granted license not only under Section 355 of the aforesaid Act but also under Sections 348 to 354 of said Act. It further stated that the business should be legal and lawful and should not affect the society at large in any form. It was also stated that the license was liable to be cancelled without assigning any reason thereof.
5.After the license was granted, the petitioner continued its club activities without any interference. Surprisingly, it was visited with a https://www.mhc.tn.gov.in/judis 5/28 W.P.No.10289 of 2022 police complaint on 20.02.2022 filed under Section 5 read with Sections 7 and 8 of the Puducherry Gaming Act, 1965. This complaint was on the file of the Yanam Police Station. Despite the police complaint, the club continued its activities.
6.On 11th April, 2022, the 1st respondent Commissioner/ Yanam Municipality issued a letter calling upon the petitioner to enclose the list of documents that were to be produced to him. The list of documents are as follows:
"LIST OF DOCUMENTS TO BE ATTACHED WITH THE APPLICATION FOR ISSUING TRADE LICENCE FOR RECREATION SOCIETIES/CLUBS TO PROCEED FURTHER:
1.Registered Lease deed/Ownership documents of the building.
2.NOC from the building owner (in case of lease)
3.Town Planning approval for Building and Occupancy Certificate issued by Town Planning Dept.
4.Door Number Certificate and No due Certificate from Municipality.
5.Copy of Memorandum of Association for Society registration and details of Society Members.
6.GST/PAN Registration to Certificate of Society/Club.
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7.Rules/Conditions to enroll as Members in Society/club.
8.Games/Recreational Activities proposed along with details.
9.FSSAI License if canteen/food served is proposed to be in premise.
10.Fire Safety Certificate.
11.Labour License from Labour Dept.
12.Maximum number of members permitted at a time along with parking facility details."
7.It is the admitted case of the parties that a response was given on the very next date, i.e., on 12.04.2022 enclosing all the details save the following. It had stated that the Society is having Town Planning approval for its buildings but it is yet to be received from the Town Planning office at Yanam. It was also stated that the labour license and the PAN card for the Society had been applied for and was yet to be received from the concerned Departments. An Undertaking was given that the same would be submitted once they were received from the concerned Departments.
8.The reason for the notice dated 11.04.2022 is an ID Note issued by the Regional Administrator of Yanam on 21.03.2022. It is https://www.mhc.tn.gov.in/judis 7/28 W.P.No.10289 of 2022 admitted that a copy of the said note was not issued to the petitioner. However, it has been placed before us in this Writ Petition. The reason for the issuance of the Notice is that complaints were received with respect to grant of permission to recreation clubs in Yanam area. The ID Note refers to an Order of this Court in W.P.No.25153 of 2021. This Court by that order had specifically stated that the authorities should not interfere with the operation of the recreation club, so long as the activities of the club are conducted in a legal manner. Therefore, it transpires that the respondents had sought for the details only in order to satisfy themselves as to whether the club is in lawful possession of the property and has been registered with the statutory authorities for carrying on its lawful activities.
9.The reply issued by the petitioner was received on 13.04.2022. Without any reference to the reply issued by the petitioner, two orders were passed on 15.04.2022 and the consequential order on 16.04.2022 came to be passed.
10.The impugned order would read that since the police department conducted a raid and registered an FIR on 20.02.2022 and https://www.mhc.tn.gov.in/judis 8/28 W.P.No.10289 of 2022 since the police had concluded the premises of the society is a common gaming house and as there was a suspicion in the minds of the police that the tokens were being used in place of money for betting purpose, the petitioners are in violation of law.
11.The order would also state that directions were received from the Regional Administrator on 21.03.2022 to furnish additional documents and that the licensee had furnished all details except those mentioned above, and since the Society had constructed additional sheds and was unauthorisedly using the existing sheds for recreation purpose, all these are violations of law, it was decided to suspend the license. In other words, apart from the fact of the police complaint, there was nothing else new to show the club was indulging in unlawful activities.
12.The impugned order further stated that the running of a recreational club in an Industrial Zone was a violation of the Puducherry Building Bye Laws and Zoning Regulations, 2012 where under public utilities and buildings, canteen, restaurant and recreational facilities in an industrial zone can be only for the purpose https://www.mhc.tn.gov.in/judis 9/28 W.P.No.10289 of 2022 of the employees of the industry. Since the writ petitioner was providing recreation facilities to its members without restricting them to industrial employees of the area, it was visited with the impugned order.
13.It is on record that the order was passed by the 7th respondent who, at the relevant time, was in charge commissioner for the Yanam Municipalities as well as the Sub Divisional Magistrate. On the very same day, the 7th respondent would pass an order stating that a complaint was received through telephone that betting and gambling is taking place at the petitioner's premises and accordingly, he directed the Deputy Tahsildar to conduct a raid. On the basis of the report submitted by the Deputy Tahsildar, pursuant to the alleged raid, he directed the Superintendent of Police to initiate necessary action as per law including the Puducherry Gaming Act.
14.Acting immediately on the said letter of the 7th respondent, who as already stated, was the Commissioner, Yanam Municipality as well as the Sub Divisional Magistrate, Yanam, another FIR was registered in FIR No.45/2022 on 16.04.2022. The FIR would read as https://www.mhc.tn.gov.in/judis 10/28 W.P.No.10289 of 2022 follows:
From S.Jeyachandran (40 Years) Deputy Tahsildar,I/C, Sub Taluk Office, Yanam.
To The Station House Officer, Yanam Police Station, Yanam.
Sir, Sub-STOY-Royal Recreation Club- Suspicious of Gambling Activiies - Filing case and action - Requested
- Reg, Ref: (I) Interim Report Vide No.1504/ILMY/ STOY/2022-23, 15/04/2022 of the DT, STOY.
(II) I.D Note No. 14869/SDMY/D3/Gamble/2021-
22, at 15-04-2022.
I am state that based on the instruction of the Sub Divisional Magistrate, Yanam on 15-04-2022 at about 17.53 hours I Proceeded along with the VAO, Adivipalam Thiru V.Karunakar and Driver Thiru Sema V.V.Satyanarayana Proceeded to Royal Recreation Club to inspect and verify as whether any gambling activities performed.
2.During Inspection which extended till 16-04- 2022 00.30 hours the under signed seized cash and other Articles seemed to be relevant and enclosed herewith with request to file FIR and to take necessary action please. As inspect gambling have taken place.
3.The interim report under reference one cited above may be referred for more details.
https://www.mhc.tn.gov.in/judis 11/28 W.P.No.10289 of 2022 Encl. as above Yours Faithfully.
S/d-S.JEYACHANDRAN Deputy Thashildar.
Based on the complaint with reference of enclosed interim report I registered a case in Cr.No. 45/2022 U/s 5 r/w 7 and 8 of Puducherry Gaming Act 1965 and took up for investigation.
The original FIR submitted to the Hon'ble JM Court, Yanam. The copies submitted to SP (Yanam), CRB, Puducherry, complainant and case file."
15.On registration of the First Information Report, an order was passed on 16.04.2022 that the premises would be under the custody of the police until further orders of the Regional Administrator, Yanam and till the investigation in Crime No.45/2022 is pending. These are the orders which have been put on challenge before this Court.
16.A common counter affidavit has been filed.
17.When the matter came up for admission before this Court, an order was passed on 01.06.2022 as follows:
"13.The first and second respondent thereafter had a decision to take. They could have acted against the writ petitioner on the basis of what they found illegal gambling activities which had been conducted for which an First Information Report had been registered by the jurisdictional police and which has to proceed in https://www.mhc.tn.gov.in/judis 12/28 W.P.No.10289 of 2022 accordance with law. They also had in their hands a report that there was violation of the building plan as such and additional constructions had been put up. Both these aspects were clubbed together in the impugned notice.
14.It is to be noted that the information which proceeded from the Yanam Municipality about extension of building without any permission, had not been put to the petitioner. But that was the basis on which the premise of the petitioner was closed and sealed.
15.Independently, the fourth respondent / the Superintendent of Police, Yanam, owing to the registration of the First Information Report had again taken a decision to seal the premise of the petitioner and strangely had put the building into the custody of the police station. That step should not have been done.
16. If the premises had to be sealed then it should have been handed over to the Municipality and the fourth respondent should not have handed over the custody of the building to the police.
17.In view of the arguments advanced and in view of the documents presented, let me take a via media approach and direct immediate de-sealing of the premises. The petitioner is directed to give an undertaking they would not conduct any gaming activity which can be termed as illegal. I also direct inspection of the building by the 1 st , 2 nd and 3 rd respondents in the presence of the petitioner to determine whether there is any violation of the building plan and thereafter file a report before this Court, whether such violation can be regularised or whether any penalty will have to be paid by the petitioner herein.
18. The petitioner must give an independent undertaking not only before this Court but also before the concerned officials that they would not violate the terms of the license particularly with respect to https://www.mhc.tn.gov.in/judis 13/28 W.P.No.10289 of 2022 conducting any illegal gambling activities. Such activity should stop forthwith. They cannot continue with any such illegal activity and claim innocence and seek indulgence of this Court."
18.It is on record that as per the directions given by this Court, an Undertaking Affidavit has been filed by the Writ petitioner. In the said affidavit, the petitioner has stated as follows:
"3.I undertake that the petitioner would not conduct any gaming activity which can be termed as illegal. I further undertake that the petitioner would not violate the terms of the license particularly with respect to conducting any illegal gambling activities.
4.I state that the petitioner Royal Yanam Recreation Society is conducting games and activities which are in accordance with law. The activities and games are Chess, Caroms, Badminton, Table Tennis, Volleyball and skill game like Rummy 13 cards by its members and guests only."
19.This affidavit is taken on record by this court on 13.06.2022. Even at the time of interim order, it was noted that the report of the Yanam Municipality, one of the basis on which the impugned order was passed, was not given to the writ petitioner. This Court also took note of the fact that the premises cannot be sealed on the basis of the registration of an FIR.
20.On the basis of the interim order, a joint inspection was https://www.mhc.tn.gov.in/judis 14/28 W.P.No.10289 of 2022 conducted by the respondents, namely, the Commissioner, Yanam Municipality, the Regional Administrator -cum- Sub Divisional Magistrate, Yanam and the Member Secretary of Yanam Planning Authority, together with the petitioner. In the inspection report, it was stated as follows:
"9.We submit that apart from the above unauthorised construction Violations, set back violations of the building sheds have also been noticed. As per the Part II, Zoning Regulations, Planning Parameters, Table -3, Puducherry Building Bye Laws and Zoning Regulations, 2012, 6.00 meter front set back and 4.50 meter side and rear set backs have been prescribed for the land of extent above 5000.00 Sqm. Since the land extent of the site is more than 5000.00 sqm., the above set backs have been taken in to consideration. We have observed that, the front set back provided for the building sheds from the internal branching road, is more than 6.00 meters, which is within permissible limit even if the land extent is more than 5000.00 Sqm. And hence no penalty is required on this count. The existing shed for the Security Room situated within the front set back is permitted in the front set back as per the Building Bye Laws. The side and rear set backs have been infringed in some building sheds. As per the Annexure -XX, of the Puducherry Building Bye Laws and Zoning Regulations, 2012 (Amendment Notification vide Extraordinaire Gazette No. 14 dated 10-03-2022, the rate prescribed for set back infringed area is Rs. 5000/- per Sqm. (For Non Residential Buildings ). The extent of infringed area is around 175.59 Sqm. Since the extent of the land is more https://www.mhc.tn.gov.in/judis 15/28 W.P.No.10289 of 2022 than 5000.00 Sqm., the penalty that can be imposed will be Rs. 8,77,950/- @Rs. 5000/- per Sqm on this count.
10.The total Penalty on both the above counts (unauthorised construction and Set back Infringement) will be around Rs. 9,42,968/-. We submit that some penalty have already been collected from the earlier entity, before issue of permission to them during the year 2003. This amount will be deducted from the total penalty that will be imposed. We submit that regarding other planning parameters, like Coverage, FAR, Height, parking area etc., the existing building sheds are within permissible limits.
11.We submit that the building sheds can be regularised after imposing the penalty, but the main concern is the use of the building sheds. We submit that the entire land bearing T.S. No. F/2/14/1 is classified as “Industrial” as per the Comprehensive Development Plan of Yanam. We submit that as per the Part II- Zoning Regulations, General Regulations, of the Puducherry Building Bye Laws and Zoning Regulations, 2012, “ Public Utilities and Buildings, Canteen, Restaurant and Recreational Facilities for Employees permitted in the Industrial Zone. The above uses are the Integral part of the entire industrial unit and therefore permissible."
21.The very fact that the joint inspection report says the deviations can be regularized on payment of penalty shows they are at best irregular but not illegal.
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22.It is pertinent to point out that the 7th respondent had signed on behalf of the 1st respondent as well as the 2nd respondent. This report was filed before the Court and taking into consideration the interim order granted on 01.06.2022. Subsequently, this court extended the same from time to time.
23.We have heard Mr.Om Prakash, learned Senior Counsel appearing on behalf of the writ petitioner instructed by Mr.K.Ravindranath and Mr.J.Saravana Vel and Mr.R.Sankara Narayanan, learned Additional Solicitor General instructed by Mr.S.Ravee Kumar, learned Government Pleader (Puducherry) and Mr.Ramasamy Meyyappan, learned Government Advocate (Puducherry) for the respondents.
24.We have carefully considered the arguments on either side. We have gone through the affidavit and the voluminous documents filed before this Court.
25.At the outset, we have to state that apart from the First Information Report and the Complaints, there is nothing on record to show that the petitioner is carrying on illegal activities. Though the https://www.mhc.tn.gov.in/judis 17/28 W.P.No.10289 of 2022 counter affidavit would state that the petitioner does not have license from the relevant Authorities, it is clear from the typedset of papers filed by the petitioner that, it has secured license under Sections 348 to 354 and Section 355 of the Puducherry Municipalities Act. Apart from that, the Department of Food Safety, the Government of Puducherry had also granted license to the writ petitioner for preparation and serving food articles. The licenses are valid 2upto date and they have not been cancelled so far.
26.We find it surprising that the authority, who is the Commissioner of the Yanam Municipality as well as the Regional Administrator-cum-Sub Divisional Magistrate to merge in one office and action has been taken on the basis of the order passed by a single individual. As the license would read what has been prohibited, is carrying on illegal activities. We feel if the club activities are carried on in industrial zone, it is at best, an irregularity and not an illegality. Hence, the club cannot be accused of violating the license granted to it.
27.It is relevant to point out that even at the time when the https://www.mhc.tn.gov.in/judis 18/28 W.P.No.10289 of 2022 license was granted, the petitioner has disclosed its place of business, nature of business and the manner of conducting its business. It is only after satisfying themselves with all these requirements, had the Yanam Municipality granted permission. We are unable to accept the argument that the Municipality was not aware, when it granted the license, the Zone in which the business was to be carried on was an industrial zone. In the tiny enclave of Yanam, the Authorities should have been aware of the zoning regulations and that the applications had been made for carrying on the business of running a club. It is not their case that the petitioner had suppressed the material facts. The petitioner has given all the details as required by the Commissioner and had also given its explanation with respect to PAN Number and GST. The impugned order also accepts it but a new ground that social activities are being carried on in the industrial zone has been raised. That was not a purport of the Show Cause Notice dated 11.04.2022. As seen from the above, only the approval for buildings had been sought for.
28.The Joint Inspection Report would go to show that the https://www.mhc.tn.gov.in/judis 19/28 W.P.No.10289 of 2022 approval had been granted and the previous occupant had also been levied with the penalty and the penalty fee had also been collected. The report would further state that on the payment of Rs.9,42,968/- being the total penalty for unauthorised constructions as well as for set back infringement, the entire building can be regularised. Apart from that, the report would also state that the other planning parameters namely coverage, FAR, height, parking area are all within the permissible limits. Having said that, a new ground is sought to be raised saying that the premises cannot be used since it is an industrial zone.
29.We are of the opinion that a change in use cannot be a ground for sealing the premises. We cannot permit an Authority to take a stand change in use amounts to illegality. Illegality means something which is prohibited.
30.Apart from this, there is a serious violation of principles of natural justice. The report of the Planning Authority was not furnished to the petitioner. It is not open to the Authorities to get a secretive report and act on that basis. Apart from that, the Yanam https://www.mhc.tn.gov.in/judis 20/28 W.P.No.10289 of 2022 Planning Authority had not put the petitioner on notice prior to furnishing the report. There are two violations, namely, (1)at the instance of the Yanam Planning Authority in not hearing the petitioner (2) the Commissioner of Yanam Municipalities in not furnishing the report to the writ petitioner. If any adverse order is to be passed against a person, it is the duty of the Authority to put the person so affected, on notice of the adverse reports against him and thereafter elicit his response.
31.Unfortunately in this case, the petitioner was never put on notice of any of the records relied upon by the respondent and straight away the impugned order has been passed. The 1st respondent has also not taken the effort to hear the case of the petitioner, prior to passing the impugned order. Therefore, we are of the view that the order in No.3077 / B2 / YM / 2022 / 3, dated 15.04.2022, has to be quashed.
32.At this juncture, we have to notice that the commencement of a business operation involves a lot of investments. Originally, the petitioner had been under an impression, licence is not necessary and https://www.mhc.tn.gov.in/judis 21/28 W.P.No.10289 of 2022 had approached this Court. This Court had pointed out that without a licence the petitioner cannot run a business and therefore, had directed him to apply for one. The petitioner had accordingly applied for a licence and obtained the same. To commence the business, he must have invested huge sums of money in the form of obtaining a Lease Deeds, pruning the area for running a club and other charges which go along with such an effort. The petitioner has altered his position to his financial disadvantage on the basis of the licence granted by the respondents. We will not permit the respondents to turn around and state that they will make the petitioner to invest amounts and commence the business and thereafter throw spokes into the running of the same by raising objections belatedly. It was always open to the respondents to have refused the licence. That would have put an end to the any of the petitioners. By the grant of licence to run the club, the respondents are estopped from pleading to the contrary. Even at the time of grant of licence, the respondents were aware that the area in which the recreational activities are being carried on is situated in an industrial zone. This is clear because the https://www.mhc.tn.gov.in/judis 22/28 W.P.No.10289 of 2022 joint inspection report states that the respondents had collected amounts in order to regularise the sheds, from the previous owner. This amount is said to have been collected in the year 2003. Having been aware and permitting the petitioner to commence the business, it is too late in the day for them to turn around and take a plea that such an act is an illegality.
33.The counter affidavit proceeds on the ground that the petitioner is serving liquor to its members and guests. This is rather surprising. It is not a plea that had been taken in the notice issued to the petitioner or both the impugned orders dated 15.04.2022 and the order passed by the Superintendent of Police on 16.04.2022. We will not permit the respondents to plead a new case in the Writ Petition and try to improve upon the impugned order. It is trite that the impugned orders cannot be improved by way of counter affidavits and therefore, we are not accepting that plea. We would like to place on record the statement made by the learned Senior Counsel for the petitioners that only recreational activities are carried out in the premises and food alone is served. He was clear and categorical that https://www.mhc.tn.gov.in/judis 23/28 W.P.No.10289 of 2022 liquor is not served in the premises as the petitioner does not possess liquor licence. Insofar as the food is concerned, the petitioner has secured a licence from the appropriate department and therefore, is entitled to serve food to the members of the club and their guests.
34.Insofar as the second portion of the prayer is concerned, here too, the surprising speed in which the 7th respondent has acted takes one aback. We have to reiterate that it is the same person who acted as the Commissioner of Yanam Municipality as well as the Sub Divisional Magistrate. As the Commissioner, he passed the aforesaid first impugned order. On the same day, as the Sub Divisional Magistrate, he directed the Tahsildar to submit a report, receives the report and directed closure of the premises. It is pertinent to point out here that the Tahsildar is said to have inspected the premises from 17.53 hours to 00.30 hours on 16.04.2022. Therefore, the report could have been made ready by the Deputy Tahsildar, even assuming that he had worked through the night only on 16.04.2022. Curiously enough, on 15.04.2022 itself, the 2nd respondent would state that he had received a report from the Deputy Tahsildar. In other words, he https://www.mhc.tn.gov.in/judis 24/28 W.P.No.10289 of 2022 had already concluded that the report is going to be against the writ petitioner and had passed the impugned order. This reeks of non application of mind and also is arbitrary. Hence, it is hit by Article 14 of the Constitution of India. Therefore, this order too would also have to go.
35.Even worse than these proceedings is the order of the 4 th respondent, Superintendent of Police,Yanam. He would, on the basis of the report of the Tahsildar, register an FIR and immediately close the premises and take the custody of the same with the police.
36.The learned Additional Solicitor General is not in a position to point out any provision of law under which the Police can take custody of a premises. Article 300A of the Constitution of India grants a right to property to every person. The right to run a legal business is equally protected under 19 (1)(g) of the Constitution of India. The action of the police in taking possession and custody of the premises falls foul on both these provisions and is absolutely without jurisdiction. Hence, we are constrained to set aside the order.
37.We have to make it clear at this stage, that we are not https://www.mhc.tn.gov.in/judis 25/28 W.P.No.10289 of 2022 commenting whether the petitioner had violated the Puducherry Gaming Act, 1965 because it is a subject matter of trial before the Trial Court. The jurisdictional Magistrate shall proceed in accordance with law. We make it clear that in case the charge sheet results in conviction, it is open to the Authorities to act thereafter.
38. In fine, W.P.No.10289 of 2022 is allowed. All the three impugned proceedings are quashed. No costs.
(V.M.V., J) (V.L.N., J)
28.04.2023
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
mps
Note to Office:
Issue on 08.05.2023
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W.P.No.10289 of 2022
To:
1.The Commissioner,
Yanam Municipality,
Yanam.,
2.The Regional Administrator
-cum- Sub Divisional Magistrate,
Yanam.
3.The Member Secretary,
Yanam Planning Authority,
Yanam.
4.The Superintendent of Police,
Yanam,
Puducherry - 533 464.
5.The Deputy Tahsildar,
Yanam,
Puducherry - 533 464.
6.The Circle Inspector of Police,
Yanam Police Station,
Yanam,
Puducherry - 533 464.
7.Aman Sharma,
Regional Administrator
-cum- Sub Divisional Magistrate,
Yanam.
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W.P.No.10289 of 2022
V.M.VELUMANI,J.
and
V.LAKSHMINARAYANAN,J.
mps
Pre-delivery Order in
W.P.No.10289 of 2022
28.04.2023
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