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Date of Decision: 28th November, 2019
AVINASH MEHROTRA ..... Petitioner
Through: Mr. Jayant K. Mehta, Mr. Prashant Kumar, Mr. Siddharth Aiyer and
Ms. Drishti Harpalani, Advs.
Through: Mr. Gaurang Kanth, CGSC with Ms. Biji Rajesh and Mr. Aman S.
Bakshi, Advs. for UOI Mr. Ramesh Babu, Ms. Manisha Singh and Ms. Sanya Panjwani, Advs. for respondent no.3
Mr. C.A. Sundaram, Sr. Advocate with Mr. Abhijeet Sinha, Mr. Zafar Inayat, Mr. Ashish Kothari, Mr. Vidushpat Singhania, Ms. Isha Tyagi and Mr. Devang Gautam, Advs. for the impleader
Mr. Ramesh Singh, SC with Mr. Ishan Agrawal, Adv. for GNCTD
MS. DEEPATI BHAGAT ..... Petitioner
Through: Petitioner in person
Through: Mr. Jasmeet Singh and Mr. Srivats Kaushal, Advs. for UOI
Mr. Ramesh Singh, SC with Mr. Ishan Agrawal, Adv. for GNCTD
Mr. Vaibhav Gaggar and Ms. Sumedha Dang, Advs. for impleader/applicant in CM NO. 48236/2019
HON'BLE MR. JUSTICE C.HARI SHANKAR O R D E R 28.11.2019
D.N. PATEL, CHIEF JUSTICE (ORAL)
W.P.(C) Nos. 5661/2019 and 11472/2019
JUDGMENT
1. W.P.(C) No. 5661/2019 has been preferred with the following prayers:
“I. Issue an appropriate writ, order or direction, directing the Respondent, i.e. the Ministry of Information Technology to exercise its powers under Section 67 and 69 of the Information Technology Act, 2000, and take steps/issue instructions to ban/prevent online gambling websites from operating in this country.
II. Issue an appropriate Writ, order or direction, directing the Respondents, i.e. the Ministry of Finance to take steps to recover taxes due from both persons who played such online gambling, and more importantly, those who run and operate these websites.
III. Issue an appropriate writ, order or direction, directing the Respondent, the Reserve Bank of India, to take appropriate measures to check on the possible exodus of Foreign Exchange, and to take steps to ensure compliance of FEMA, 1999 and its allied rules.
IV. Issue an appropriate writ, order or direction, directing the Respondents to prosecute the unscrupulous owners/proprietors, and the promoters of the online gambling websites, in accordance with law.
V. Issue an appropriate writ, order or direction, directing the Respondent, the Reserve Bank of India,, to issue guidelines, preventing payments of money to gambling websites.
VI. Pass any other order as deemed fit and appropriate in the given facts and circumstances.”
2. W.P.(C) No.11472/2019 has been preferred with the following prayers: “(a) Issue appropriate writ and/or direction of Prohibition to impose ban on the illegal card game namely "Poker" in the State of NCT and/ or; (b) Issue appropriate writ and/or direction imposing ban and/or prohibition on card games such as "Poker", and/or any other card game including but not limited to rummy, teen patti, bridge etc., online and offline, being game of skill or game of chance, to be played for stakes.
(c) Issue appropriate writ and/or direction imposing ban and/or prohibition on companies from offering card games such as "Poker", and/or any other card game including but not limited to rummy, teen patti, bridge etc., online and offline for making profit and/or to earn revenue and/or;.
(d) Issue appropriate writ and/or direction imposing ban and/or prohibition on advertising card games such as "Poker", and/or any other card game including but not limited to rummy, teen patti, bridge etc., online and offline and/or; (e) Issue appropriate writ and/or direction imposing ban and/or prohibition on companies for raising any kind of investment and/or; (f) Such further and/or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem appropriate.”
3. Counsel appearing for the petitioner submits that it has been mentioned in paragraph 28 of the memo of WP(C) No. 5661/2019 that several websites accessible through intermediaries, are encouraging gambling activities; therefore, they must be banned immediately. Counsel appearing for the petitioner has also taken this Court to the provisions of Information Technology Act, 2000 read with the Information Technology (Intermediary Guidelines) Rules, 2011, especially Rule 3(2)(b) whereby it is submitted by the counsel for the petitioner that the power to ban such websites are vested with Union of India. It is further submitted by counsel for the petitioner that para 28 of WP (C) 5661/2019 enlist a non-exhaustive list of such websites. It is only an example but that there can be such other websites which also require to be banned in India. It is also submitted by the counsel for the petitioner that in the past, Union of India banned access to pornographic and pedophilic websites in compliance of the IT Act, 2000. Similarly, looking to the provisions of the Information Technology Act, 2000 read with the Information Technology (Intermediary Guidelines) Rules, 2011, websites encouraging gambling activities should also be banned by the Union of India, since it is the UOI mandated with jurisdiction and authority to do so. It is also submitted by the counsel for the petitioner that a representation has already been preferred by the petitioners to the Union of India but no action has been taken by the Union of India so far. The aforesaid representation is at Annexure – I (page 59 to the memo of WP(C) No. 5661/2019).
4. Counsel appearing for the Union of India submits that gaming is a state subject as the same falls within List – II of Schedule VII of the Constitution of India, but the State of NCT of Delhi has not been impleaded as a party respondent in WP(C) No. 5661/2019. We, therefore, direct the petitioner to implead the Government of N.C.T. of Delhi as a party (respondent no. 6) in WP(C) No. 5661/2019. Amended memo of parties shall be filed by the petitioner during the course of the day.
5. Notice be issued to the newly impleaded party respondent no. 6.
6. Mr. Ramesh Singh, Standing Counsel GNCT of Delhi waives notice on behalf of respondent no. 6.
7. Looking to the facts and circumstances of the case, we hereby direct the respondent nos. 1 and 2 to treat this writ petition as a representation. Respondent nos. 1 and 2 will take a decision as to whether the websites, which are referred to in paragraph 28 of WP(C) NO. 5661/2019 are to be banned or not and whether any such similarly situated websites which are encouraging gambling activities are to be banned or not. The decision will be taken by the respondent nos. 1 and 2 or such other department of Union of India, in accordance with law, rules, regulations and Government policy as applicable to the facts of the present case, as early as possible and practicable.
8. We also direct the respondent no. 6 in WP(C) No. 5661/2019 Government of NCT of Delhi to treat this writ petition as a representation and to take a decision if any particular game(s) referred to, in these writ petitions, in accordance with law, rules, regulations and Government policy as applicable to the facts of the present case are a game of chance or a game of skill. Taking note of the fact that if these games involve gambling and if they are being played in Delhi then it is required to be dealt with by respondent no. 6, as gaming is a subject matter of List – II of Schedule VII of the Constitution of India. Thus, if any website is operating in Delhi or is engaged in any gambling games, the same will be dealt with by the respondent no. 6, in accordance with law, rules, regulations and Government policy as applicable to the facts of the present case and the decision as to whether they should be banned or not, will be taken by the respondent no. 6, as early as possible and practicable.
9. If the Union of India and the respondent no. 6 are of the opinion that the aforementioned gaming is gambling, then, a reasoned order will be passed and the same will be implemented at the earliest, in accordance with law, rules, regulations and as per the Government policy as applicable to the facts of the case. Such order will also be communicated to the petitioners.
10. The Union of India as well as State Authority will also keep in mind while examining the representation, whether such games result in money-laundering or violation of laws relating to foreign exchange, as well as, if any avoidance of taxes is involved or not, in the gaming activities operated through the websites as narrated in the memo of the writ petition.
11. With these observations, these writ petitions are hereby disposed of. CM No.24836, 34219, 35292/2019 in W.P.(C) 5661/2019 CM No.48236/2019 in W.P.(C) 11472/2019 In view of the order passed in these writ petitions, these applications are disposed of.
CHIEF JUSTICE C.HARI SHANKAR, J. NOVEMBER 28, 2019 r.bararia