Once, it is established that the premises used
for card club by the petitioners do not form public place, and are not the place of public amusement within the meaning of section 2(13)(9) of the said Act,
place accessible to the public for drawing water, washing or bathing or for the purpose of recreation, it would clearly disclose that in order to be a public place, it has to be a place where the public has access as of right and not otherwise.
8. It has been consistent case of the petitioner that the card club or the premises of the petitioners which are used for playing cards cannot be called a public place in the sense that said premises are not accessible to the members of public as of right. On the contrary, the entry of the premises is restricted to the members of the petitioner being so, the petitioners are justified in contending that their premises cannot form such place of public amusement within the meaning of said expression under section 2(9) of the said Act, in as much as that the said places are not public places within the meaning of section 2(13) of the said Act. As already stated above section 2(9) clearly requires access to the public as a matter of right may be regulated or otherwise. In case of petitioners' premises, no such access is available to the members of public. Once this fact is clearly established, rather not disputed :12:
by the respondents, the said premises cannot be a public place under the said Act.
Bombay High Court
The Cricket Club Of India Ltd vs State Of Maharashtra Through on 14 August, 2008
1. Heard. Rule. By consent, rule returnable forthwith. Mr, Ingawale, AGP waives service for respondents.
2. Since common question of law and facts arise :4:
in all these petitions, they were heard together and are being disposed of by this common judgment.
3. In all these petitions, the petitioners are challenging the notices issued to the petitioners' club requiring them to close down their Card Clubs unless and until they obtain licence from the Commissioner of Polic
e, Mumbai in terms of Bombay Police Act, 1951 (hereinafter called as the said Act) and the Rules for Licensing and Controlling Places of Public (Other than Cinemas) and Performances for Public Amusement including Cabaret Performances, Discotheque, Games, Poll Game, Parlours, Amusements Parlours providing Computer Games, Virtual Reality Games, Cyber Cafes with Net Connectivity, Bowling Alleys, Cards Rooms, Social Clubs, Sports Clubs, Meals and Tamasha Rules, 1960 (hereinafter called as "the said Rules).
4. It is the case of the petitioners that they provide for various recreational amusement, sports facilities including that for playing cards in the premises of the petitioners. However, such facilities are provided only to the members of the :5:
petitioners. The entry to said premises of the petitioners is restricted for the use of the members of the respective petitioners. It is also the case that the members can bring their guests to the said premises, however, such persons, except being the guests of the members, do not have any right of access. The members have to introduce such persons as their guests. It is their further case that the public have no access to the premises as the entry is restricted to the members of the respective petitioners Club. It is their further case that in spite of this factual position being known to the respondents, the notices were served upon the petitioners calling upon the petitioners to suspend the card games and to close down their card clubs, unless necessary licence is obtained under the said Act and the said Rules for such games. The petitioners therefore were compelled to obtain such licences but the same were obtained under protest. However, as according to the petitioners, the said Rules which seek to empowere the respondents to insists for licence for such card clubs houses and games are in excess of powers available to the respondents under the said Act itself, and hence they :6:
have approached to this Court with the present petition challenging the Rules to the extent the same relate to the card clubs in the petitioners' premises which according to the petitioner do not fall within the meaning of the expression "the public place" under the said Act. The place made available for playing cards in the petitioners' premises is not the place of public amusement within the meaning of said expression under the said Act, and therefore, the said rules cannot apply to the card Clubs of the petitioners. The said rules which seek to relate to the places in the private buildings as well as in the premises belonging to the Co-operative Housing Societies and used only for the members of the club are in excess of the rule making power under the provisions of law comprised under Section 33 (w) of the said Act. Taking into consideration the definition of the expressions "place of public amusements" and "public place", and the rule making power under section 33 (w) and (y) and further section 33(b) of the said Act, the rules framed by the respondents in relation to the card clubs cannot relate to the private places and those of the petitioners where the entry is restricted to the :7:
members and not open and accessible to the public.
5. On the other hand, it is the case of the respondents that the definition of the expressions "place of public amusement" as well as "public place" being of inclusive nature and the rules which have been framed being not inconsistent with the provisions of the Act and having framed in exercise of powers under section 33(w) of the said Act, it cannot be said that the respondents have exceeded the power delegated under section 33(w) for framing rules. While framing rules in relation to the Card clubs, the expression the place has been defined to mean any place meant for public amusements and include card rooms. and therefore it would include the premises of the petitioners when the same are used for playing such games.
6. The expression place of public amusement as defined under the said Act in section 2(9) would mean any place where music, singing, dancing or any diversion or game or the means or carrying on the same, is provided and to which the public are admitted either on payment of money or with the :8:
intention that money may be collected from those admitted and includes a race course, circus, theatre, music hall, billiard room, bagatelle room, gymnasium, fencing school, swimming pool or dancing hall. Perusal of this definition of expression the place of public amusement, it would apparently disclose that it essentially relates to place which is accessible to the public, though admission may be on payment of money or with the intention to collect money from those who are admitted. In other words irrespective of any of the conditions regarding monetary consideration being imposed to allow a member of public for entry to such premises, it can still be a public place and only condition which is imposed is that such entry for public must be as a matter of right, even though the actual entry may be a regulated by imposing various conditions or restrictions. Once it is established that the entry is as a matter of right, the place to which such entry is assured, it would be a public place.
7. The term public place has been defined in section 2(13) of the said Act to the effect that it includes the foreshore, the precincts of every public :9:
building or monument and all places accessible to the public for drawing water, washing or bathing or for the purpose of recreation. Apparently the definition of the public place also clearly discloses that a premises to be a public place, it should be accessible to the public and not the one which is meant for the use by specific persons forming an association. In fact this Court has occasion to consider the scope of the word public place as is found in section 2(24) of the Motor Vehicle Act read with Amended Act 1939 in the case of Pandurang Chimaji Agale and another V. New India Life Insurance Company Ltd. and others, reported in others AIR
1988 Bombay, 248, the decision sought to be relied upon by the learned Senior Counsel for the petitioners. It was the decision of the Full Bench of this Court, wherein after taking in to consideration the definition of the term public place in section 2(24) of the Motor Vehicle Act which reads "Public place means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage" it was observed that said :10:
definition being a inclusive one and only condition which is stipulated therein being that the place must be such that the public should have right to access, unlike access as of right, it was held that:- "The definition of "Public Place" under the
Act is , therefore wide enough to include any place which members of public use and to which they have a right of access. The right of
access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of
fee. The use may be restricted generally or to particular purpose or purposes. What is
necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation other purpose."
Having held so, it was also clarified that there is distinction between the expression "right of access" and "access as of right" and that the latter expression denotes a place where the members of public have a right of its use as members of public and as a matter of right, whether regulated, restricted or not. Undoubtedly, the definition of the term public place in the said Act nowhere use the expression access as of right. However, considering the fact that the definition under section 2(13) is inclusive one and further it clearly specifies the :11:
place accessible to the public for drawing water, washing or bathing or for the purpose of recreation, it would clearly disclose that in order to be a public place, it has to be a place where the public has access as of right and not otherwise.
8. It has been consistent case of the petitioner that the card club or the premises of the petitioners which are used for playing cards cannot be called a public place in the sense that said premises are not accessible to the members of public as of right. On the contrary, the entry of the premises is restricted to the members of the petitioner being so, the petitioners are justified in contending that their premises cannot form such place of public amusement within the meaning of said expression under section 2(9) of the said Act, in as much as that the said places are not public places within the meaning of section 2(13) of the said Act. As already stated above section 2(9) clearly requires access to the public as a matter of right may be regulated or otherwise. In case of petitioners' premises, no such access is available to the members of public. Once this fact is clearly established, rather not disputed :12:
by the respondents, the said premises cannot be a public place under the said Act.
9. It was sought to be contended that respondents have denied the contentions in that regard by filing the affidavit. It is true that there is a denial to that effect. However, it is not the case of the respondent that at any point of time any inquiry was made in this regard or any information was collected in this regard which could reveal that the members of the public had access to the premises of the petitioners' which are used for playing cards or that apart from the members of the petitioners, the card club of the petitioners is being used by others also. In the absence of any such information and necessary materials in that regard being placed on record, mere denial of the fact regarding the premises being used for playing card by the members of the petitioner would not be sufficient nor it would be sufficient to reject the contentions raised on behalf of the petitioners on the basis of the said fact being placed on record by the petitioners.
10. Once, it is established that the premises used :13:
for card club by the petitioners do not form public place, and are not the place of public amusement within the meaning of section 2(13)(9) of the said Act, it is not necessary for this Court to go into other points sought to be raised.
11. The Petitions succeed on above limited ground. Consequently, notices issued to the petitioners are liable to be quashed and are hereby quashed. Rule made absolute in terms of prayer clause (b) and (c) in Writ Petition No. 1325/2008, in terms of prayer clause (a) and (b) in Writ petition No.1131/2008, and in terms of prayer clause (b) and (c) in writ petition NO. 1389/2008. There shall be no order as to the costs.
(R.M.S. KHANDEPARKAR, J.)
( A.A. SAYED, J.)
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