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Smt. Ashalata Pal Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberMatter No. 125 of 1979
Judge
Reported inAIR1980Cal262
ActsConstitution of India - Articles 226, 298 and 299; ;West Bengal State Lottery Rules, 1968 - Rules 4(2) and 19(2)
AppellantSmt. Ashalata Pal
RespondentState of West Bengal
Appellant AdvocateH. Ganguly and ;R.N. Dutt, Advs.
Respondent AdvocateAmal Dutt, Adv.
DispositionApplication dismissed
Cases Referred and Smt. Shantabai v. State of Bombay
Excerpt:
- .....dealer having registration no. 3925 of west bengal state lottery for selling west bengal state lottery tickets and she carries on such business in her retail shop situated at no. 89 bipin behari ganguly street, calcutta-12, according to the petitioner the terms and conditions of such dealership and agency are that the director of state lottery would sell and the dealer would purchase such number of lottery tickets as may be requisitioned by the dealer, on payment of full price thereof according to the face value of such tickets. after such purchase the dealer would become the absolute owner or all tickets so purchased by him/her and would be entitled to sell and transfer them from his/her shop to his/her customers by realising the face value. it is stated by the petitioner that.....
Judgment:
ORDER

R.T. Pyne, J.

1. The petitioner is a registered dealer having registration No. 3925 of West Bengal State Lottery for selling West Bengal State Lottery tickets and she carries on such business in her retail shop situated at No. 89 Bipin Behari Ganguly Street, Calcutta-12, According to the petitioner the terms and conditions of such dealership and agency are that the Director of State Lottery would sell and the dealer would purchase such number of lottery tickets as may be requisitioned by the dealer, on payment of full price thereof according to the face value of such tickets. After such purchase the dealer would become the absolute owner or all tickets so purchased by him/her and would be entitled to sell and transfer them from his/her shop to his/her customers by realising the face value. It is stated by the petitioner that the tickets so purchased by the dealer but which would remain unsold by him are not returnable to the Directorate of the State Lottery. The dealer's remuneration is a certain fixed amount on the value of each price, if there is any prize-winning ticket at all amongst the tickets purchased by the dealer

2. The petitioner in course of her said business and as dealer of tickets purchased 600 tickets in a lot from the Director of State Lotteries paying full price thereof and as such she acquired full ownership and complete title in respect of the tickets so purchased by her. The above purchase is covered by Bill No. 70156 dated January 7, 1978. The tickets were purchased by the petitioner for the purpose of selling them in course of her business from her said place of business. It is further stated by the petitioner that she could not sell a single ticket from the said bunch of 600 tickets as the same was stolen from the selling counter of the petitioner's shop on the very day of its purchase while she, the petitioner, along with her daughter was busy in selling tickets of the other State Lotteries at the said counter. On the very same day immediately after such theft the petitioner lodged a police diary (report) in the local police station at Muchi para being G. D. Entry No. 1359 dated January 17, 1978. Thereafter, on January 19, 1978 the petitioner informed about the fact of the theft of the said 600 tickets to the Director of the State Lottery, West Bengal as also of the fact that the petitioner could not sell a single ticket out of the said lot i. e., 600 tickets.

3. On January 21, 1978 153rd draw of the lottery was held and in that draw Ticket No. X-107311 became the winning ticket of the first prize. According to the petitioner the said ticket was within the said lot of 600 tickets which was stolen from the selling counter of the petitioner's shop. The petitioner's case is that as the legal title to the said prize winning ticket vested in the petitioner and was not transferred by her she placed her claim for the first prize with the Director of State Lottery on April 25, 1978. Because of the above theft the petitioner was however unable to produce the said ticket at the office of the Director, State Lottery as required by Rule 19 (2) of the West Bengal State Lottery Rules of 1968. The Director by his letter dated April 25, 1978 refused to recognise the petitioners claim or to make payment to the petitioner on the ground that the original ticket was not produced by the petitioner in compliance with the above rule. The petitioner in the instant writ application has challenged the said order or decision of the Director of the State Lottery and for an appropriate writs for cancelling same. The petitioner has also prayed for a direction upon the respondents to pay the first price of the 153rd draw to the petitioner.

4. In her petition the petitioner has challenged the said order of the Director on the following grounds :--

'(a) The letter dated 25-4-78 of the Director of State Lottery West Bengal is illegal, ultra vires, wrong and hence liable to be cancelled, withdrawn and quashed.

(b) Rule 19 (2) of the West Bengal State Lottery Rules, 1968 should be declared to be a rule of procedure for convenience of business and should not be treated as a bar to the exercise of the fundamental right of property, guaranteed under Article 19(1)(f) of the Constitution of India.

(c) The interpretation sought to be put by the authorities in charge of the West Bengal Lottery upon Rule No. 19 (2) mentioned above is illegal, ultra vires and not tenable and is not binding upon your petitioner as it offends the principle of natural justice.

(d) It is fundamental principle of law of interpretation that every Rule should be so interpreted if possible as to avoid illegality and conflict with the laws of the land in force and that this elementary principle of Law has not been followed by the respondents in the instant case.

(e) For that in case the aforesaid Rule 19 (2) of West Bengal State Lottery Rules 1968 is found to debar any rightful claimant from enforcing his claim, without producing the relevant ticket under circumstances beyond his control, the said rule is liable to be declared ultra vires and void and as such it is liable to be struck down.

5. In this application the respondents have not used any affidavit-in-opposition but at the hearing it has been submitted on their behalf that the respondents do not admit the allegations in the petition save and except what are matters of record. On behalf of the respondents this case was argued on the basis of the allegations contained in the petition.

6. Inasmuch as in the instant case we arc concerned with the West Bengal State Lottery Rules, 1969 (as modified up to November 197-3) (hereinafter referred to as 'Lottery Rules'), a reference to the relevant provisions thereof may be made.

7. By Notification No 297-F/4L-19/68 dated 18th January 1969 the Governor made the said Rules.

8. Rule 2 provides that the West Bengal State Lottery shall be administered by the Director of State Lotteries, West Bengal. Calcutta under the control of the Government of West Bengal.

9. Rule 4 (2) provides that -- 'All prizes are guaranteed by the Government.'

10. Rules 19, 20 and 21 deal with payment of prizes and they are as follows :

'19. (1) The winners of prizes shall claim the prize amounts from the Director. The first and the second prizes may be handed over at ceremonial functions which may be organised for this purpose by the Director as soon after the conclusion of the draw as may be possible.

(2) Prizes shall be awarded direct to the winners only on surrendering the prize-winning tickets at the office of the Director. The persons who will actually produce the prize-winning tickets shall be deemed to be the purchasers of the tickets and, therefore, the prize-winners. Prizes may be paid in person or sent by post through the Reserve Bank of India drafts or cheques on receipt of the prize-winning ticket as well as a signed receipt in the prescribed form.

20. The period within which all claims must be lodged, the officers before whom such claims will have to be lodged for either the final draw or the interim draw will be fixed by the State Government and notified in the Official Gazette.

The Director, however, shall have the discretion to consider even a technically and slightly time barred claim provided he is otherwise satisfied that there are good and sufficient grounds beyond the control of the claimant for delay of the same.

21. The Government shall not recognise the resale in full or in part of a ticket or any transfer thereof.'

11. Rule 23 provides that -- 'If any question arises as to the interpretation of any of these rules or in regard to any matter not expressly provided for in these rules, the matter shall be referred to the Government and the decision of the Government thereon shall be final.'

12. Counsel for the petitioner has submitted that as the said ticket got the first prize the petitioner has a claim to the same and such claim amounts to a fundamental right under Article 19(1)(f) of the Constitution. It has been further submitted that the notification regarding Lottery Rules issued pursuant to some constitutional right vested in the State. By issuing such notification the Government has brought into existence a profession of selling of lottery tickets. By the impugned Rule 19 (2) fundamental right of carrying on profession has been and is being infringed and that would amount to violation of Article 19(1)(g) of the Constitution of India. Counsel's further submission is that the contractual right is a property within the meaning of the said Article. It has also been submitted that the procedure laid down in Rule 19 (2) puts an unreasonable restriction on the fundamental right, especially in case of theft of ticket against which State is duty bound to protect the petitioner. According to counsel the petitioner's fundamental right to property is the right to get prize because her ticket is the prize winning ticket and by refusing to pay the prize in respect of the said ticket the petitioner's fundamental right to property has been infringed. It is also submitted that after the prize is declared the matter has gone out of the realm of the contract and has become the property. It is also the submission of the counsel that Rule 19 (2) is only a method of disbursement and as such as a procedural matter and it affects the fundamental right of the petitioner in the instant case.

13. In support of his above submission petitioner's counsel has relied upon the following cases, to wit, Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd., : [1954]1SCR674 , Bechu Singh v. Bichcha Ram Sahu, (1909) 10 Cal LJ 91; Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai, : (1976)IILLJ186SC and Bombay Dyeing & . v. State of Bombay, : (1958)ILLJ778SC . He has also relied upon a passage at pages 634-635 of D. Basu's Commentary on the Constitution of India (4th Edn.).

14. Counsel for the respondents has submitted that the Government has been carrying on the business of lottery by virtue of the powers conferred under Articles 298 and 299 of the Constitution. By selling tickets of the lottery the Government enters into a contract with different parties i. e. purchasers on the terms and conditions contained in the said Rules. Inasmuch as these Rules are the terms and conditions governing the contract as aforesaid any infringement thereof cannot be challenged by a writ petition. Being pure and simple case of a breach of contract the petitioner cannot invoke the writ jurisdiction in respect thereof. According to counsel a right arising out of contract between parties is not a constitutional or statutory right. A breach of contract by a contracting party (be it the Government or a public authority) cannot furnish a cause of action for a writ petition under Article 226 of the Constitution. It is further submitted that so far as the Government is concerned under Rule 4 (2) it is only a guarantor and if there is a breach of the guarantee then appropriate proceedings can be taken against it but that right cannot be enforced by a writ. In support of his submissions the counsel has relied upon the cases of Lekhraj Sathramdas Lalvani v. N. M. Shah, Deputy Custodian-cum-Managing Officer. Bombay, : [1966]1SCR120 ; Har Shankar v. Dy. Exercise and Taxation Commr., : [1975]3SCR254 ; Radha Krishna Agarwal v. State of Bihar, : [1977]3SCR249 ; Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh, : [1978]1SCR375 and Ratnakar Vishwanath Joshi v. Life Insurance Corporation of India, 1975 Lab IC 466 (Delhi).

15. The question that arises for consideration in this case is whether the petitioner by this writ application is trying to enforce any contractual right.

16. It is now well settled by a series of decisions of the Supreme Court that if the petitioner has only a right under a contract and not a right of property such right cannot be enforced by a writ. Further, a law which affects or varies any right under a contract cannot for that reason be said to be invalid as unreasonable on the ground of infringement of a fundamental right guaranteed under Article 19(1)(f) of the Constitution. Under Indian Constitution, unlike the Constitution of the United States, a contractual right is not considered as a right of property. It has also been held that purely personal right created by contract cannot be enforced by a writ. A writ petition is not an appropriate remedy for enforcing contractual obligation. Further, obligation flowing from a contract is not binding or enforceable by a writ of mandamus. After the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by legally valid contract which determines rights and obligation of the parties inter se. In such cases no question arises of violation of any constitutional provisions. In this sphere affected parties can only claim rights conferred upon them by the contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract. Therefore, in case of breach of contract no writ lies. If a party has only a contract in its favour and not a right to property no writ would lie to enforce such contractual right. See Har Shankar v. Dy. Excise and Taxation Commr., : [1975]3SCR254 ; Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh, : [1978]1SCR375 ; Radhakrishna Agarwal v. State of Bihar, : [1977]3SCR249 ; Anwar Khan Mehboob Co. v. State of Madhya Pradesh, : [1966]2SCR40 ; Mahadeo v. State of Bombay, : AIR1959SC735 ; Raghubar Dayal Jai Parkash v. Union of India, : [1962]3SCR547 and Smt. Shantabai v. State of Bombay, : [1959]1SCR265 .

17. The question involved in the instant application is to be considered in the light of above well established principles.

18. In the instant case by purchasing the lottery tickets from the Director of State Lotteries the petitioner entered into a contract the terms and conditions where-of are as contained in the 'Lottery Rules'. Those terms and conditions are binding upon the parties to the contract. The State is entering into the contract with the purchasers of tickets upon terms and conditions as contained in the said Rules. The prizes to be declared on the tickets are guaranteed by the Government. (See Rule 4 (2)). Therefore, if there is any violation of any terms and conditions of such contract or of the guarantee then appropriate course for the aggrieved person i. e. the purchaser of a lottery ticket would be to obtain appropriate relief under the law and for the same he cannot invoke the constitutional writ jurisdiction of the Court. In the instant case the petitioner cannot be said to have acquired any right to property for the infringement of which she can invoke the constitutional writ jurisdiction or is entitled to a writ.

19. In the aforesaid view of the matter the application fails. This application is, therefore, dismissed. Rule Nisi is discharged. There shall however be no order as to cost.


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