Dismissed

Kunal Heda S/O Lt. Sh. Brij Kishore Heda v. State of Rajasthan

Rajasthan HC3 May 2023CW/3355/2023

Case brief

AI extract

What is this about?

The Dharmabhoomi bench of the Rajasthan High Court dismissed a D.B. Civil Writ Petition challenging the constitutionality of prohibitory words in Section 12 of the Rajasthan Public Gambling Ordinance, 1949, holding the petition academic due to lack of cause of action.

What did the court decide?

The petitioners prayer for declaration of unconstitutionality and directions were dismissed. Liberty reserved to revive if cause of action arises.

Kunal Heda S/O Lt. Sh. Brij Kishore Heda… — Pension and Retirement Benefits | Rajasthan HC (2023)

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[2023/RJJP/009499]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Civil Writ Petition No.3355/2023

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Kunal Heda S/o Lt. Sh. Brij Kishore Heda, Residing At C69, Dundlod House Colony, Hanuman Marg, Hawa Sadak, Sodala, Jaipur 302006

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----Petitioner

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Versus

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State Of Rajasthan, Through Its Secretary, Law And Legal Affairs Department, Ministry Of Law, Govt. Secretariat, Jaipur 302001

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----Respondent

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For Petitioner(s) : Mr. Sankalp Todi, Advocate For Respondent(s) : Mr. R.P. Singh, Additional Advocate General assisted by Mr. Jaivardhan Singh Shekhawat, Advocate

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HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Order

03/05/2023

Heard on admission.

By this petition under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:-

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“(A) It may be held that the words ‘unless it is carried on in a common gaming house’ used in Section 12 of Rajasthan Public Gambling Ordinance, 1949 is unconstitutional and violative of Article 19(1)(g).

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(B) It may be held that the words ‘unless it is carried on in a gaming house’ used in Section 12 of Rajasthan Public Gambling Ordinance, 1949 are outside the purview of Entry 34 List II and hence declared as unconstitutional.

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(C) It may be held that it may be held that the words ‘unless it is carried on in a common gaming house’ used in Section 12 of Rajasthan Public Gambling Ordinance, 1949 is unconstitutional and violative of Article 14.

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(D) It may be held that any place wherein only business of ‘game of skill’ is being carried on shall be exempted from the Rajasthan Public Gambling Ordinance 1949 in all manners.

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(E) Direct the respondent to enact a law for regulation of businesses of ‘game of skill’ in physical spaces.

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(F) Prohibit the respondent to enact any law to prohibit business of ‘game of skill’ in physical spaces within the purview of ‘betting and gambling’

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(G) Pass any other as it may deem fit.”

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Learned counsel for the petitioner argued that the provisions contained in Section 12 of the Rajasthan Public Gambling Ordinance, 1949 (hereinafter referred to as “the Ordinance of 1949”) creates a bar on commercial activities relating to ‘gaming of skill’ within ‘common gaming house’ and, therefore, the petitioner’s fundamental right to carry out business as guaranteed under Article 19(1)(g) of the Constitution of India is adversely affected. He would further submit that the game of skill such as Rummy, Poker, Fantasy Sports and casual games such as Cricket, Solitaire, Carrom, Chess etc. are widely provided by online service providers through the territory of State of Rajasthan and have widely been accepted by the public. He would further submit that in plethora of decisions of the Court, it has been consistently held that ‘game of skill’ is a commercial activity protected under Article 19(1)(g) of the Constitution of India and that would be outside the purview of “betting and gambling”.

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We, however, find that the petitioner himself has pleaded that he is willing to own and operate a business for the purpose of providing services of game of skill being played for stakes at the hotel premises owned and operated by the petitioner. The petitioner preferred a letter for grant of NOC from the

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Commissioner of Police, Jaipur and District Collector, Jaipur for the purpose of establishing business where ‘game of skill’ alone would be carried out. As the petitioner is not operating any gaming house, nor willing to operate prohibited activity of public gambling or keeping of common gaming house which is prohibited under the Ordinance of 1949, the petitioner is entitled to operate ‘game of skill’ in physical spaces, subject to fulfillment of condition provided under any other law of land.

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There is nothing on record, much less any pleading that even though the petitioner is not operating or carrying on any gambling or betting in a ‘common gaming house’ as defined under the Ordinance of 1949, he is not being allowed to carry on game of mere skill.

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Section 12 of the Ordinance of 1949 provides that nothing in the Ordinance of 1949 shall be held to apply to any game of mere skill, as distinguished from a game of chance and shall combined, unless it is carried on in a common gaming house.

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On petitioner’s own pleadings, he is not operating any common gaming house and he merely wants to operate in physical spaces available, game of mere skill. Present is not a case where any prohibitory order is issued against the petitioner. It is also not a case where his application for grant of NOC has been rejected, thereby, prohibiting him to carry on game of mere skill in available physical spaces even though he is not carrying on common gaming house.

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The petition, therefore, is more academic in nature without any cause of action in favour of the petitioner. If at all there is any prohibition against the petitioner to carry on game of skill without

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there being any allegation of operating common gaming house as defined under Sub-Clause (4) of Section 2 of the Ordinance of 1949, the petitioner may have any cause of action. This Court is not inclined to enter into academic question raised in this petition in the absence of there being any cause of action.

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Giving liberty to the petitioner to revive, in case, cause of action arises in his favour, this petition is dismissed.

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(ANIL KUMAR UPMAN),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ Karan/4

Kunal Heda S/O Lt. Sh. Brij Kishore Heda v. State of Rajasthan

Case brief

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Kunal Heda S/O Lt. Sh. Brij Kishore Heda v. State of Rajasthan

Case brief

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