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Rajendra Kumar Shah Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 529 of 1985
Judge
Reported in1985(2)WLN81
AppellantRajendra Kumar Shah
RespondentState of Rajasthan and anr.
DispositionPetition dismissed
Cases ReferredVimal Kumar Godha v. The State of Rajasthan and Anr.
Excerpt:
constitution of india - article 298 and rajasthan state lotteries scheme, 1968--clauses 10 & 18--state lotteries & notification dated 19-3-1985 making amendments--held, these are in exercise of executive powers to carry trade under aticle 298. ;the lotteries that are being organised by the state of rajasthan in pursuance of the rajasthan state lotteries scheme, 1968, are being organised in exercise of the executive power of the state to carry on any trade or business under article 298 of the constitution and that state lotteries scheme has been issued by the state government in exercise of its executive power and impugned amendments that have been made by notification dated 19th march, 1985 have also been made in exercise of the executive power of the state.;(b) rajasthan state.....suresh chandra agrawal, j.1. the state of rajasthan runs lotteries wherein tickets of fixed denomination are sold and after draw of lots, prizes are given to the purchaser of the winning tickets. for the purpose of conducting these lotteries, the slate government has framed the rajasthan lotteries scheme 1968 (here in after referred to as 'the state lotteries scheme), which has been notified by the state government vide notification dated 10th december, 1968. the state lotteries scheme makes provision for sale of tickets and clause 10 of the said scheme provides for draw. sub-clause (iii) of clause 10, as originally framed provided that the committee appointed for the purposes of making the draw will satisfy itself about the arrangements of the draw and shall select and approve the staff.....
Judgment:

Suresh Chandra Agrawal, J.

1. The State of Rajasthan runs lotteries wherein tickets of fixed denomination are sold and after draw of lots, prizes are given to the purchaser of the winning tickets. For the purpose of conducting these lotteries, the Slate Government has framed the Rajasthan Lotteries Scheme 1968 (here in after referred to as 'the State Lotteries Scheme), which has been notified by the State Government vide notification dated 10th December, 1968. The State Lotteries Scheme makes provision for sale of tickets and clause 10 of the said Scheme provides for draw. Sub-clause (iii) of clause 10, as originally framed provided that the Committee appointed for the purposes of making the draw will satisfy itself about the arrangements of the draw and shall select and approve the staff that may be posted for its operation. The said provision also laid down that a list of unsold tickets will be given to the Committee and also distributed to the members of the public present at the time of draw and that the tickets sold under clause 6 will be eligible for prizes and if the number drawn out is for the unsold ticket the process will be repeated till the number of a sold ticket was drawn. In other words, the said clause made provision for draw from amongst sold tickets only. By notification dated 10th December, 1984 the State Government notified the scheme of 86th Super Hit Holi Bumper draw of the Rajasthan State Lotteries (here in after referred to as the Holi Bumper Draw'), for public information. The said notification was also ublished in the Rajasthan Gazette. According to the said notification various prizes totalling Rs. 2.54. crorer were to be awarded in the said draw. The date of draw was originally fixed as 5th March 1985 In para 18 of the said notification the method of drawing prizes was laid down and it was provided that for 1st, 2nd, 3rd and 4th prizes 6 numbers would be drawn (one in each series) individually out of sold tickets. The date of draw, as notified under the notification dated 10th December, 1984, was subsequently altered from 5th March, 1985 to 25th March, 1985. By notification dated 1.9th March, 1985 Sub-clause (iii) of clause 10 of the State Lotteries Scheme, was substituted and under; the said sub-clause as substituted it has been provided that the Committee would satisfy itself about the arrangements of the draw and shall select and approve the persons from the staff that may be posted far its operation. In the said sub-clause it has also been provided that a list of tickets remaining unsold with the camp incharge shall be given to the Director a day before the date of draw of lottery by them and that all the tickets whether sold or unsold shall be eligible for prizes and that if the numbers drawn out, are of tickets remaining unsold, the prizes on such numbers shall be retained by the State Government and no camp incharge or person shall have any right, interest or claim over such prizes. As a result of the aforeseid amendment in clause 10 of the State Lotteries Scheme, unsold tickets have also been made eligible for the prizes and if any prize is drawn on any unsold ticket, the same is to be retained by the State Government. By the aforesaid notification dated 19th March, 1985 clause 18 of the Scheme of the Holi Bumber Draw which was notified by notification dated 10th December, 1984 was also suitably amended so as to provide that draw will also be made out of the unsold tickets.

2. The petitioner claims to have purchased 34 tickets each of Rs. 10/-denomination for the Holi Bumper Draw on various dates between 1st March, 1985 and 15th March, 1985. Feeling aggrieved by the amendment that has been introduced by notification dated 19th March, 1985 in the State Lotteries Scheme as well as in the scheme of the Holi Bumper Draw, the petitioner has filed this writ petition.

3. The case of the petitioner is that the aforesaid amendments which have introduced by notification dated 19th March, 1985 are not applicable to the Scheme of Holi Bumper Draw and are applicable only to the Schemes for lottries which are initiated after the date of the said notification dated 19th March, 1985. The case of the petitioner is further that in case it be held that the aforesaid amendments introduced by notification dated 19 March, 1985 are applicable to the draw under scheme of the Holi Bumper Draw fixed for 25th March, 1985, then the said amendments are illegal and void.

4. The writ petition has been contested by the respondents and a reply has been filed on their behalf. In the said reply it has been stated that the State Government runs the State Lottery as an activity to increase funds which may be utilised for the various welfare schemes in the interest of the people and that the Scheme is generally so framed that after deducting all the expenditure, including the money given away in various prizes, the Government is able to save money for its welfare schemes. With regard to the Holi Bumper Draw, it has been stated in the said reply that when the Scheme was announced, in all 48 lacs tickets were printed and were to be sold but due to certain difficulties arising out of the announcement of Assembly Elections in a number of States where Rajasthan Lottries tickets have a good market, a large number of Bumper Draws being allowed unexpectedly by the various State Governments and Union territories and imposition of 20% sales tax on sale of Lottery tickes in West Bengal and Tamil Nadu which are very good markets in Rajasthan Lotteries, the sale of tickets of the Holi Bumper Draw adversely affected and out of 48 lacs tickets that were printed about 16 lacs only were sold and about 32 lacs tickets remained unsold and that if the draw had been made out of sold tickets only, the State Government would have suffered a loss of more than a crore of rupees and that in these circumstances the State Government decided that the draw would be made out of all the tickets sold or unsold in order to save the State from huge loss of public revenue and with that end in view, sub-clause (iii) of para 10 of the State Lotteries Scheme and para 18 of the Scheme of the Holi Bumper Draw were amended by notification dated 19th March, 1985 so as to provide that the draw would be made out of sold as well as unsold tickets. In the said reply it has been also stated that a very large number of State Governments and Union Territories and all the private organisations of the Lotteries award prizes on all printed tickets and not on sold tickets only. In the said reply it has been further stated that the aforesaid amendments are applicable to all draws to be held after 19th March, 1985 and the said amendments would be applicable to draw for the Holi Bumper Draw fixed for 25th March, 1985. In the reply it has also been stated that no assurance was given by the respondents to the petitioner at any time that the draw would be made out of sold tickets only and in this connection it has been pointed out that the various advertisements that were published with regard to sale of tickets, it was stated that the draw would be made out of all 48,00 000 tickets. The respondents have also placed reliance on the conditions that were printed on the hack of the ticket and specially on condition No. 2 which prescribes that 'the ticket has been issued under the provisions contained in the Rajasthan State Lotteries Scheme, 1968 as amended from time to time'. In their reply the respondents have also pleaded that the petitioner has no legally enforceable right and that the transaction which is foundation for the present writ petition, is in the nature of a wagering contract which is not enforceable under law.

5. Before the contentions urged by Shri S.M. Mehta, the learned counsel for the petitioner and the learned Advocote General for the respondents are dealt with, it may be mentioned that the legislative power to make laws in relation to lotteries organised by the Government of India or the State Government is vested in Parliament under Entry 40 in List I of Schedule VII to the Constitution of India. No law has been enacted by Parliament in relation to this subject matter. In view of Article 73 of the Constitution the executive power in respect of the said subject-matter vests in the Union. Clause (1) of Article 258 of the Constitution prescribes that not with standing anything in the Constitution the President may, with consent of the Government of a State, entrust either conditionally or unconditionally to the Government or to its officers functions in relation to any matter to which the executive power of the Union extends. In exercise of the powers conferred on him under clause (1) of Article 258 the President of India has passed an order dated 3rd December, 1970 (annexed as Ex.1 to the reply) whereby the Government of Rajasthan has been permitted to conduct a state lottery subject to the condition that the tickets of the lottery shall not be sold in any other State without the permission of the Government of that State. By this notification the President has entrusted to the Government of Rajasthan the executive power of the Union in respect of lotteries organised by the Government of Rajasthan.

6. In H. Anraj and Ors. v. State of Maharashtra : [1984]2SCR440 , the Supreme Court has examined the constitutional basis for organising of lotteries by the Governments of the various States in India and after taking note of the provisions contained in Entry 40 in List I of Schedule VII, as well as Articles 73, 258 and 298 of the Constitution, the Supreme Court has observed that the executive power of the Union in respect of lotteries organised by the Government of a State has to exercise subject to the provisions of the Constitution, including Article 298, which expressly extends the executive power of the State to the carrying on of any trade or business subject only to legislation by Parliament if the trade or business is not one with respect to which the State legislature may make laws. The Supreme Court has held that reading Articles 73 and 298 together, it is clear that the executive power of a State in the matter of carrying on any trade or business with respect to which the State legislature may not make laws is subject to legislation by Parliament but is not subject to the executive power of the Union, and that the Government of a State is not required to obtain the permission of the Union Government in order to organise its lotteries in the absence of Parliamentary legislation. In that case the Supreme Court has also considered an order that was passed by the President of India under Article 258(1) of the Constitution which was similar in terms to the order (Ex.1) dated 3rd December, 1970 and wherein also a condition was imposed that the tickets of the lottery shall not be sold in another State without the permission of the Government of that State. In view of the aforesaid decision of the Supreme Court it must be held that the lotteries that are being organised by the State of Rajasthan in pursuance of the Rajasthan State Lotteries Scheme, 1968, are being organised in exercise of the executive power of the State to carry on any trade or business under Article 298 of the Constitution and that State Lotteries Scheme, has been issued by the State Government in exercise of its executive power and impugned amendments that have been made by notification dated 19th March, 1985 have also been made in exercise of the executive power of the State.

7. The first contention that was urged by Shri Mehta was that the amendment that has been introduced by notification dated 19th March, 1985 in the State Lotteries Scheme must be construed as being applicable only to the schemes for lotteries issued after 19th March, 1985 and that the said amendment is not applicable to the schemes of the Holi Bumper Draw which was issued vide notification dated 10th December, 1984 before the said amendment. The submission of Shri Mehta was that the aforesaid amendment should be construed to have prospective operation only and it cannot be construed as to operate retrospectively so as to affect the schemes for lotteries which were initiated prior to the aforesaid amendment. The learned Advocate General, on the other hand, has submitted that the amendment that has been introduced by the notification dated 19th March, 1985 only relates to the procedure for draw and it is applicable to all draws that are held after 19th March, 1985, including the draw for the Holi Bumper Draw which was fixed for 25th March, 1985. There is nothing in the said notification dated 19th March, 1985 to restrict the operation of the amendment only to draws relating to the lottery schemes which are initiated after 19th March, 1985. On the other hand the position has been made further clear by making suitable amendment in clause 18 of the Scheme for the Holi Bumper Draw which was notified vide notification dated 10th December, 1984 so as to provide that the draw would be made out of sold and unsold tickets. Further more condition No. 2 of the conditions which are mentioned on the back of tickets which have been sold for the Holi Bumper Draw expressly lays down that the ticket has been issued under the provisions contained in the Rajasthan State Lotteries Scheme, 1968, as amended from time to time. This clearly implies that any amendment in the State Lotteries Scheme made after the sale of the ticket, would be applicable to the scheme of the Holi Bumper Draw. In my view, therefore, the amendment that has been introduced in the State Lotteries Scheme by the notification dated 19th March, 1985 is applicable to the draw for the Holi Bumper Draw. The first contention urged by Shri Mehta cannot therefore, be accepted.

8. Shri Mehta has next contended that in case it be held that the amendment that has been introduced in the State Lotteries Scheme by the notification dated 19th March, 1985 is applicable to the scheme of Holi Bumper Draw, the said amendment is illegal and Void. In spport of his aforesaid submission Shri Mehta has invoked the principle of promissory estoppel and has submitted that the State Government in its notification dated 10th December, 1984 has made a representation to all persons, including the petitioner, that the draw for Holi Bumper Draw would be made out of sold tickets only and that acting on the basis of the said representation the petitioner altered his position by purchasing 34 tickets between 1st March, 1985 and 15th March, 1985 and that was not open to the State Government to alter the position by amending the State Lotteries Scheme so as to provide that the draw would be made out of sold as well as unsold tickets. In spport of his aforesaid submission, Shri Mehta has placed reliance on the decisions of the Supreme Court in Union of India and Ors. v. Anglo Afgan Agencies etc. AIR 1968 SC 718, Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. : [1979]118ITR326(SC) The Gujarat State Financial Corporation v. Lotus Hotel Pvt. Ltd. : AIR1983SC848 , and Jit Ram Shiv Kumar and Ors. v. The State of Haryana and Anr. : [1980]3SCR689 . Shri Mehta has also placed reliance on the decision of a learned Single Judge of this Court in Vimal Kumar Godha v. The State of Rajasthan and Anr. 1982 Rajasthan Law Reporter P. 89, and the decision of a full Bench of the Bombay High Court in Tapri Oil Industries and Anr. etc. v. State of Maharashtra and Ors. : AIR1984Bom181 .

9. The learned Advocate General on the other hand, has submitted that in the facts and circumstances of the present case it cannot be said that the State Govenment had made a representation to the petitioner that the draw for the Holi Bumper would be made out of sold tickets only and that the petitioner has acted on such a representation and in support of his aforesaid submission the learned Advocate General has submitted that in the various advertisements that were issued by the State Government for the sale of tickets for the Holi Bumper Draw it was stated that the draw would be made out of the 48 lacs tickets. The learned Advocate General has also submitted that the principle of promissory estoppel cannot be invoked in the present case. In this connection the submission of the learned Advocate General was that the transaction involving the purchase of lottery tickets by the petitioner was in the nature of a. wagering transaction which is not permissible by law and the principle of promissory estoppel has no application to such a transaction. The learned Advocate General has also submitted that in any event the action of the State Government in amending the State Lotteries Scheme by notification dated 19th March, 1985 is in public interest & it has been taken with a view to save the revenues of the State and that the principle of promissory estoppel cannot, be invoked. The learned Advocate General has also submitted that in the present case the principle of promissory estoppel cannot be applied also for the reason that the petitioner can be restored to his original position in which he was before he acted on the basis of the representation contained in notification dated 10th December, 1984 in as much as the sale price of the tickets which have been purchased by the petitioner can be refunded to him if he so wants. In support of the aforesaid submissions the learned Advocate General has placed reliance ; on the decision of the Bombay High Court in Dorabji Jamshedji Tata v. Edward F. Lance and Ors. AIR 1977 Bom 138, and the decisions of the Supreme, Court in Excise Commissioner, U.P., Allahabad etc. etc. v. Ram Kumar etc. etc. : AIR1976SC2237 , Motilal Padampat Sugar Mills Ltd. v. State of Uttar Pradesh (supra) and Jit Ram Shiv Kumar and Ors. v. The State of Haryana and Anr. (supra).

10. The principle of promissory estoppel differs from the rule of; estoppel as contained in Section 115 of the Evidence Act in the sense that while rule of estoppel applies to a representation about an existirig fact, the principle of promissory estoppel is applicable to cases where one party makes a representation by making a promise or giving an assurance to be acted upon in the future. This principle of promissory estoppel is based on the principle of equity. It has been succinctly explained in the following words in Halsbury's Laws of England:

Promissory estoppel--when one party has by his words or conduct made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him: at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced. This doctrine, which is derived from a principle of equity enunciated in 1877 has been the subject of considerable recent development and is still expanding. It differs from estoppel in pain in that the representation relied upon need not be one of present fact.

The doctrine cannot create any new cause of action where none existed before and it is subject to the qualification (1) that the other party has altered his position; (2) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice giving the promisee a reasonable opportunity of resuming his position; (3) the promise only becomes final and irrevocable if the promisee is known variously as 'equitable' or 'promissory' or 'quasi estoppel.

(See: Halsbury's Laws'of England, 4th Edn., Vol. 16, page 1017, para 1514).

11. The three qualifications mentioned in the aforesaid passage are based an the decision of the Privy Council in Ajayi R.T. Briscoe (1964) 3 All E.R. 556.

12. The principle of promissory estoppel has been invoked before the Supreme Court in a number of cases. It has been held applicable by the Supreme Court in The Union of India and Ors. v. Anglo Afghan Agencies etc. (supra), Century Spg. and Mfg. Co. Ltd. v. Ulhasanagar Municipal Council : [1970]3SCR854 , Turner Morrison & Co. Ltd. v. Hungerford Investment Trust Ltd. : [1972]85ITR607(SC) , Molilal Padampat Sugar Mills Co. Ltd. v. The State of U.P. and Ors. (supra) and The Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. (supra). The said principle was held inapplicable by the Supreme Court in Ramnatha Pillai v. State of Kerala : (1973)IILLJ409SC , State of Kerala v. Gwalior Rayon Silk . : [1974]1SCR671 , Assistant Custodian of Evacuee Property v. Brij Kishore Agarwala : [1975]2SCR359 , Excise Commissioner, U.P. Allahabad v. Ram. Kumar : AIR1976SC2237 , Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh : [1978]1SCR375 and Jit Ram Shiv Kumar and Ors. v. The State of Haryana and Anr. (supra).

13. In Motilal Padampat Sugar Mills Co. Ltd. v. The State of U.P. and Ors. (supra) decided by a Bench of two Hon'ble Judges of the Supreme Court, there is an exhaustive discussion of the law on the subject and the English as well as the American law and the earlier decisions of the Supreme Court have been noticed. In that case, Bhagwati, J. has summed up the legal position as under:

The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, fit it would be inequitable, to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.

14. As regards the applicability of the doctrine of promissory estoppel the Government, the learned Judge has observed:

where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, not with standing that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. It is elementary that in a republic governed by the rule of law no one, how so ever, high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned, the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government committed to the rule of law, claim immunity from the doctrine of promissory estoppel.

15. The learned Judge has, however, observed:

But it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise any equity in favour of the promisee and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts which have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the pubic interest in, the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies.

But even where there is no such overriding public interest, it may still be competent to the Government to resile from the promise 'on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position' provided of course it is possible for the promisee to restore status quo ante. If, however, the promisee cannot resume his position, the promise could become final and irrevocable Vide Ajayi v. Briscoe (1964) 3 All. ER 556.

16. In Jit Ram Shiv Kumar and Ors. v. The State of Haryana and Anr. (supra), another bench of two Hon'ble Judges of the Supreme Court has dealt with the law relating to the promissory estoppel at length. In the said judgment exception has been taken to some of the observations in the earlier judgment in Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of Uttar Pradesh (supra) and after referring to English law as well as the decisions of the Supreme Court, position with regard to the scope of principle of promissory estoppel against the Government has been thus summed up:

(1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State.

(2) The doctrine cannot be invoked for preventing the Government from discharging the functions under the law.

(3) When the officer of the Government acts outside the scope of his authority, the plea of promissory estoppel is not available. The doctrine of ultra vires will come into operation and the Government cannot be held bound by the unauthorised acts of the officers.

(4) When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation and a person acting on the representation puts himself in a disadvantageous position, the Court is entitled to require the officer to act according to the scheme and the agreement or representation. The Officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undisclosed grounds of necessity or change the conditions to the prejudice of the person who acted upon such representation and put himself in a disadvantageous position.

(5) The Officer would be justified in changing the terms of the agreement to the prejudice of the other party on special considerations such as difficult foreign exchange position or matters which have a bearing on general interest of the State.

17. In the Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. (supra), the Supreme Court has noticed the decisions in Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of U.P. (supra) and Jit Ram Shiv Kumar and ors v. State of Haryana (supra). In the said case the following passage has been quoted from Motilal Padampaat Suagar Mills Co. (P) Ltd. v. State of U.P. (supra):

The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not.

18. Thereafter the court has considered the decision in Jit Ram Shiv Kumar and Ors. v. State of Haryana (supra) and has observed:

Jit Ram Shiv Kumar v. State of Haryana : [1980]3SCR689 which slightly differs from the view taken by this Court in the aforementioned decision at any rate would not help the appellant because it only lays down that the principle of promissory estoppel cannot be invoked for preventing the Government from discharging its functions under the law. Even then, it was held that when the officer authorised under a scheme enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the Court is entitled to regulate the officer to act according to the scheme and the agreement or the repersentation. The officer cannot arbitrarily on his mere whim ignore his promise, on some undefined and undisclosed grounds of necessity or change the conditions to the prejudice of a person which had acted upon such representation and put himself in a disadvantageous position. On this point, both the decisions concur and the ratio would govern the decision in this appeal.

19. A perusal of the decisions of the Supreme Court referred to above shows that principle of promissory estoppel is applicable against the Government in cases where an officer acting within the scope of his authority makes a representation and a person acting on that representation put himself in a disadvantageous position. The officer cannot act arbitrarily to the prejudice of the person who has acted upon such representation and has put himself in a disadvantageous position and in such a case the Court is entitled to require the officer to act according to the representation. This principle of promissory estoppel is, however, an equitable principle and it must yield when the equity so requires. Amongst the exceptions that have been laid down to the applicability of the aforesaid principle in Motilal Padampat Sugar Mill's case (supra) is that it would not be applied in a case where public interest would be prejudiced if the Government were required to carry out the promise. Another qualification that has been laid down to applicability of this principle is that it would be competent to the Government to resile from the promise by giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position in cases where it is possible for the promisee to restore status quo ante.

20. In the present case the petitioner claims that the Scheme of the Holi Bumper Draw as notified by notification dated 10th December, 1984, which was published in the Rajasthan Gazette, the State Government had made a representation to all purchasers of the tickets for the Holi Bumper Draw that the numbers for the purpose of award of prizes would be drawn out of sold tickets only and that acting on the basis of the said representation the petitioner purchased 34 tickets of the Holi Bumper Draw between 1st March, 1985 and 15th March, 1985 and thereby the petitioner altered his position to his disadvantage. In this connection the petitioner has placed on record (as annexure 1 to the writ petition) the printed pamphlet issued by the Director Small Savings and State Lotteries, Rajasthan, Jaipur containing the scheme of the Holi Bumper Draw. Para 17 of the said pamphlet is in the same terms as Para 18 of the scheme of the Holi Bumper Draw as notified in the notification dated 10th December, 1984. During the course of arguments Shri Mehta, the learned counsel for the petitioner, placed before me some newspapers containing advertisements for the sale of tickets for the Holi Bumper Draw wherein it was mentioned that the draw will be made out of sold tickets. The learned Advocate General has placed before me some papers containing similar advertisments wherein this fact was not mentioned and in some advertisements wherein it was stated that the draw will be made out of 48 lacs tickets. The learned Advocate General has not been able to show any advertisement published upto 15th March 3985 wherein it was stated that the draw will be made out of sold and unsold tickets. In my opinion even if the advertisements referred to by Shri Mehta are ignored, there is the notification dated 10th December, 1984, which was published in the Rajasthan Gazette, wherein it is expressly mentioned that the numbers for award of 1st, 2nd, 3rd and 4th prizes would be drawn out of sold tickets and this statement is also contained in the printed pamphlet issued by the Director, Small Savings and State Lotteries, Rajasthan Jaipur. This conslitutes a representation to the prospective purchasers of tickets for the Holi Bumper Draw. The petitioner, having purchased 34 tickets for the Holi Bumper Draw between 1st March, 1985 and 15th March, 1985, can legitimately claim that acting on the aforesaid representation contained in the scheme of Holi Bumper Draw that the numbers for award of prizes would be drawn out of sold tickets, he has put himself in a disadvantageous position by purchasing 34 tickets worth Rs. 340/-. The condition requisite for the applicability of the principle of promissory estoppel are thus fulfilled and the question which needs to be examined is whether the present case is covered by any of the qualifications subject to which the principle of promissory estoppel is applicable against the Government.

21. On a consideration of the facts of the present case I am of the opinion that present case is covered by the qualification that have been laid down with regard to the applicability of the principle of promissory estoppel to the Government. From the reply filed on behalf of the respondent it appears that the amendment that has been introduced in the State Lotteries Scheme by notification dated 19th March, 1985, is intended to protect the revenues of the State and it has been pointed out that on account of the various circumstances, namely, announcement of the assembly elections in number of States where Rajasthan Lottery tickets have good market, unexpected large number of Bumper Draws being allowed by the various State Government and Union Territories as well as private organisations and the imposition of 20% sales tax on sale of lottery tickets in West Bengal and Tamil Nadu which are very good markets for Rajasthan Lottery, the sale of the tickets for the Holi Bumper Draw was adversely affected and out of 48 lacs ticketes about 16 lacs tickets only could be sold and about 32 lacs tickets remained and as a result, the State Government was faced with a situation where it would have sustained a loss of more than one crore rupees if prizes were drawn only out of the sold tickets. This shows that the amendment that has been introduced in the State Lotteries Scheme by notification dated 19th March 1985, so as to enable the draw being made out of sold and unsold tickets, seeks to reduce the possibilities of this loss of public revenue. Shri Mehta has submitted that even after this amendment, the possibility of the loss of revenue cannot be ruled out because even if the draw is made out of sold as well as unsold tickets prizes may be drawn out of sold tickets only and no prize may be drawn out of unsold tickets. It is true that there is a possibility that even after this impugned amendment all the prizes may be drawn out of sold tickets only and the State may have to incur loss of revenue inspite of the aforesaid amendment. But at the same time it cannot be disputed that such a possibility is considerably reduced if the draw is made out of 40 lacs sold and unsold tickets, in view of the impugned amendment, instead of 16 lacs sold tickets as was the position earlier. In these circumstances, it is not possible to say that the impugned amendment has not been made in public interest.

22. Further more this is not a case in which the petitioner cannot be restored to the position in which he stood before he acted on the basis of the representation contained in the notification dated 10th December, 1984. All that has happended is that acting on the basis of the said representation, the petitioner has spent Rs. 340/- by purchasing 34 tickets of Rs. 10/- each. The petitioner can resume his earlier position and status quo ante can be restored by the refund of the price of those tickets to the petitioner. The learned Advocate General fairly stated that the State Government will refund the price of the tickets that were purchased by the petitioner and Ors. if he or they so desire. In these circumstances it cannot be said that the petitioner cannot resume the position in which he stood prior to his having acted on the representation contained in the notification dated 10th December, 1984 and that the status quo ante cannot be restored. In these circumstances the doctrine of promissory estoppel cannot be invoked so as to prevent the State Government from amending sub-clause (iii) of clause 10 of State Lotteries Scheme and clause 18 of the Schedule of the Holi Bumper Draw.

23. At this stage reference may be made to the decision of learned Single Judge of this Court in Vimal Kumar Godha v. The State of Rajasthan and Anr. 1982 Rajasthan Law Reporter 89, on which reliance has been placed by Shri Mehta. The said case arose out of a suit in which an application for temporary injunction was filed. The said application for temporary injunction was rejected by the trial court and the appeal against the order was allowed by the learned Single Judge. It related to the draw for the Dhanteras Bumper Draw of the Rajasthan State Lotteries and the plaintiff in that case had invoked the principle of promissory estoppel. The learned Single Judge, after noticing the contentions urged by the counsel for the plaintiff as well as by the Advocate General on this issue, has only held that the plaintiff had got a good prima facie case to be considered by the trial court. The learned Judge did not finally decide this question. The said decision, therefore, cannot be considered to be an authoritative pronouncement on the applicability of the doctrine of promissory estoppel to the State Lotteries. Moreover the said judgment of the learned Single Judge was set aside in appeal by the consent of both the parties. In my view, therefore, the said judgment does not render any assistance to the petitioner.

24. No other contention was urged by Shri Mehta.

25. In the result the writ petition fails and is hereby dismissed. It is, however made clear that in view of the statement made by the learned Advocate General during the course of hearing of the writ petition, it would be open to the petitioner and other purchasers of the tickets for the Holi Bumper Draw to claim refund before the Draw of the price of the tickets which he or they have purchased if he or they so desire. The interim order will stand vacated. No order as to costs.


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