IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2018 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.28478-28479/2018 (LB-RES) BETWEEN: 1. THE MEMBERS CLUB DOOR NO.1-149 1ST FLOOR , JALSSOR SULLIA TALUK DAKSHINA KANNADA-574239. (REPRESENTED BY ITS SECRETARY MR JITHESH) 2. JITHESH S/O VINOD POOJARY #3-137-E-35, ASHRAYA NAGAR THIRUVAIL, VAMANJOOR MANGALORE, DK-575028. PETITIONERS (BY SRI AKASH B. SHETTY, ADVOCATE) AND: 1. THE SUPERINTENDENT OF POLICE MANGALORE DAKSHINA KANNADA-575008. 2 2. THE DEPUTY SUPERINTENDENT OF POLICE SULLIA, PUTTUR DIVISION DAKSHINA KANNADA-515783. 3. THE CIRCLE INSPECTOR OF POLICE SULLIA, DAKSHINA KANNADA-574239 4. THE SUB INSPECTOR OF POLICE SULLIA, DAKSHINA KANNADA-574239 5. PANCHAYATH DEVELOPMENT OFFICER JALSSOR GRAM PANCHAYAT SULLIA TALUK DAKSHINA KANNADA-574239. RESPONDENTS (BY SMT. PRATHIMA HONNAPURA, AGA FOR R1 TO R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND [SECTION] OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED: 17.04.2018 PASSED BY THE RESPONDENT NO.5 FOR THE CLOSURE OF THE CLUB (ANNEXURE-C); THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:- 3 ORDER
The petitioners have filed the present writ petitions for a writ of certiorari to quash the order dated 17.4.2018 passed by the 5th respondent - Panchayat Development Officer, rejecting the permission sought for by them for renewal of license for the year 2018-19 to conduct indoor games in the petitioner - Club.
2. It is the case of the petitioner - 'Members Club' that it is registered under the [ACT] on 30.10.2017. On 12.12.2017 the petitioners made representation to Respondent Nos.1 to 4 - Police with regard to opening of the Club and that petitioner - Club is conducting recreational activities like Cards (Rummy), Cards (Andhar Bahar), Six Colour pin game, Poker played in computerized machine etc., in the Club. It is also contended that all these games are declared as games of skill by this Court.
3. It is further case of the petitioners that they have obtained permission from the Gram Panchayath to run the indoor games for the period from 12.10.2017 to 31.3.2018 and after the expiry of license, on 2.4.2018 they have applied to the 5th respondent for renewal of the license for the year 2018-19. By the impugned order, the 5th rejected for renewal of license for the year 2018-19 and directed the petitioners to stop the indoor games on the ground that there are lot of complaints from the public against running of the Club and that without permission from the Government, ulai-pidai (Andhar bahar) game is being played in the petitioner - Club. Therefore petitioners are before this Court for the reliefs sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri [ENTITY], learned counsel for the petitioners vehemently contended that there was no need for the petitioners to seek permission from the Grama Panchayath to run Recreation Club and to conduct recreational activities like Cards (Rummy), Cards (Andhar Bahar), six colour pin game, Poker played in computerized machine etc., Hence the impugned order passed by the 5th respondent is erroneous and totally without jurisdiction. Therefore he sought to quash the impugned order passed by the 5th respondent by allowing these writ petitions. He relied upon the following judgments of this Court in support of his contention that license or permission from the Police or any authority is not necessary to run the recreation club:
1. M/s [PRECEDENT] ( WP No.9155/2011)
2. M/s [PRECEDENT] (WP No.4388/2007)
3. M/s [PRECEDENT] (WP No.59085/2015)
4. [PRECEDENT] (Crl.P. No.201028/2014)
5. [PRECEDENT] (Crl.P. No.100877/2014)
6. Per contra, Smt. [ENTITY], learned AGA mainly contended that the very writ petitions filed by the petitioners are not maintainable as the petitioners have alternative remedy of appeal under the provisions of [SECTION] of the [ACT] ('the Act' for short) against the impugned order passed by the Grama Panchayath. She would further contend that the judgments relied upon by the learned counsel for the petitioners are in respect of recreation club and interference by the Police and the said Judgments have no application to the facts of present case and therefore sought for dismissal of the writ petitions.
7. Having heard the learned counsel for the petitioners, it is an undisputed fact that the petitioner -
Club is registered under the provisions of [ACT] on 30.10.2007. It is also not in dispute that the petitioners applied for permission to Grama Panchayath to conduct indoor games for the period 12.10.2017 to 31.3.2018 and the same was permitted by the Grama Panchayath. It is also not in dispute that on the representation made by the petitioners dated 2.4.2018 for renewal of permission/license for the year 2018-19, the Grama Panchayath rejected the permission on the ground that there are lot of complaints from the general public that the petitioners are running ulai-pidai (Andhar Bahar) game without permission from the State Government. If the petitioners are aggrieved, they have to avail the alternative remedy of appeal as contemplated under the provisions of [SECTION] of the Act.
8. Though the learned counsel for the petitioners relied upon various Judgments of this Court, the same are in respect of recreation club and the interference by the Police authorities. Therefore this Court in those writ petitions directed that the Recreation Club need not obtain any license, but at the same time they should not indulge in any unlawful activities. The said judgments relied upon by the learned counsel for the petitioners are not applicable to the facts of this case.
9. Admittedly in the present case, the petitioners obtained licence to run indoor games from the Grama Panchayath for the period from 12.10.2017 to 31.3.2018 and it is also not in dispute that on the application filed by the petitioners on 2.4.2018 for renewal, the Grama Panchayath rejected the application on the ground that the petitioner - Association is indulged in unlawful activities i.e., without prior permission they are conducting ulai-pidai (andhar bahar) game. Therefore if the petitioners are aggrieved, it is always open for them to file appeal before the Appellate Authority under [SECTION] of the Act. Hence the contention of the learned counsel for the petitioners that the Grama Panchayath has no authority, cannot be accepted. The petitioners themselves have filed application before the Grama Panchayath for renewal on the ground that earlier the very Grama Panchayath has granted licence. Now, when the Grama Panchayath rejected the application for renewal, the petitioners cannot turn round and contend that there is no need to seek permission. If the petitioners are aggrieved, they have to avail the alternative remedy before the appellate authority as contemplated under the provisions of the Act. My view is fortified by the Hon'ble Supreme Court in the case of [PRECEDENT] wherein at paragraphs 9,10 and 13 it is held as under:
9. Even prior to the [ACT], considering the alternate remedy available under the [ACT] it was held in [PRECEDENT], that :-
"6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under [SECTION] and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under [SECTION] and [SECTION] of the [ACT] or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under [SECTION] and [SECTION] of the [ACT], nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under [SECTION] of the [ACT] and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
10. In [ENTITY] {(2010)8 SCC 110} (supra), the High Court had restrained further proceedings under [SECTION] of the Act. Upon a detailed consideration of the statutory scheme under the [ACT], the availability of remedy to the aggrieved under [SECTION] before the Tribunal and the appellate remedy under [SECTION] before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :-
"43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under [SECTION] of the [ACT] if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under [SECTION] of the [ACT], a person must exhaust the remedies available under the relevant statute.
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the [ACT] and the [ACT] and exercise jurisdiction under [SECTION] for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."
13. In [PRECEDENT] (supra), it was observed that the action of the Bank under [SECTION] of the '[ACT]' available to challenge by the aggrieved under [SECTION] was an efficacious remedy and the institution directly under [SECTION] was not sustainable, relying upon [ENTITY] (Supra), observing :
"27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under [SECTION] but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under [SECTION]. On misplaced considerations, statutory procedures cannot be allowed to be circumvented.
28 In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under [SECTION] and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under [SECTION] in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge."
10. In view of the above, the writ petitions are not maintainable. Accordingly, the writ petitions are dismissed with liberty to the petitioners to avail the alternative remedy of appeal as contemplated under the provisions of [SECTION] of the Act, if they are so advised, in accordance with law.
JUDGE Gss/-