TMI Blog2021 (4) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... not a signatory - petition dismissed as not maintainable. - WP(C)/98/2020 - - - Dated:- 25-3-2021 - THE HON BLE MR JUSTICE PRASANTA KUMAR DEKA For the Petitioner : Mr. I Choudhury, Sr. Advocate Mr. S Biswakarma, Advocate. For the respondents : Mr. S Dutta, Advocate Mr. BD Goswami, Additional Advocate General, AP Mr. Chandran, GA, AP. JUDGMENT ORDER (CAV) Heard Mr. I Choudhury, learned senior counsel assisted by Mr. S Biswakarma, the learned counsel for the petitioner. Also heard Mr. S Dutta, the learned counsel for the respondent No. 3 and Mr. B D Goswami, the learned Additional Advocate General, State of Arunachal Pradesh assisted by Mr. Chandran, the learned Government counsel, Arunachal Pradesh. 2. The petitioner is involved in the lottery business having its infrastructure required for performing as a distributor of lottery tickets both conventional paper lottery and online lottery in any State of India. The respondent No. 1 through its Secretary, Department of State Lottery published request for proposal (RFP) on 01.11.2013 for selection of distributors of conventional paper and online lottery. In the said RFP, it was provided that the interested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 for being appointed as distributor of online lottery @ ₹ 20,000/- per draw which was much higher than the rate of ₹ 14,000/- per draw of the respondent No. 3 with an alternative prayer to invite fresh tender. 6. The petitioner submitted another representation on 14.09.2018 showing calculations and the benefit for the Government of Arunachal Pradesh which revealed that the Government stand to gain by an additional revenue of ₹ 3,57,32,000/-. The said two representations were not considered. 7. On 12.09.2018 at the instance of the Chief Minister, the Government of Arunachal Pradesh took decision to convert the 16 draws of online lotteries into paper lotteries. The petitioner filed this writ petition and vide order dated 19.09.2018 this court was pleased to stay the impugned decision dated 12.09.2018. The petitioner did not participate in the request for proposal but preferred this writ petition alongwith the following reliefs: In the premises aforesaid, it is therefore respectfully prayed that Your Lordships may be pleased to admit this petition, call for the records and issue a Rule calling upon the respondents to show cause as to why: a) A writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role in the draws of the Arunachal Pradesh State lotteries. The impugned letter dated 12.09.2018 does not curtail any right of the writ petitioner and as such the petitioner has no locus standi to maintain this writ petition. 9. The respondent Nos. 1 and 2 also filed the affidavit-in-opposition. In the said affidavit-in-opposition, the issue of maintainability of the writ petition is raised on similar grounds as those stated by the respondent No. 3 in the affidavit-in-opposition. Further it is stated that the Government of Arunachal Pradesh only approved the paper lottery scheme of the respondent No. 3 but yet to finalise the terms and conditions of the agreement. It is further denied that the representation dated 29.08.2018 of the respondent No. 3 and the contents thereof amounts to surrender of the distributorship of online lotteries of the respondent No. 3 entailing termination of the agreement dated 27.07.2015 entered into between the respondent no. 3 on one part and the State of Arunachal Pradesh through the Commissioner and Secretary, Department of State Lotteries on the other. 10. Mr. Choudhury, the learned senior counsel for the petitioner in response to the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent No.3 wanted to project that the same goes to show the inability of the respondent no. 3 to perform its part of the contract of sale of online lotteries. In terms of clauses 21.2 as well as 21.3 of the agreements dated 27.07.2015, the contracts were required to be terminated. Pursuant to such termination the Government could have either considered the representation submitted by the petitioner in terms of clause 21.5 of the agreement or ought to have invited fresh tender. By the impugned decision undue and uncalled favour was shown to the respondent No. 3 by awarding fresh contract and that too without any fresh tender process. 14. Mr. Dutta, learned counsel for the respondent No. 3 submits that the petitioner is totally a stranger so far the agreement entered by the respondent No. 3 and the State respondent is concerned. In the representation of the respondent No. 3 it was indicated that there was decline of sale volume of online lottery tickets due to certain changes in the market conditions and it does not amount surrender of the distributorship. The agreements stipulate definite contractual rights and obligations on the parties itself and as such it is for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involving grave miscarriage of justice vis- -vis its own interest so as to invoke the extra ordinary power by this court. The decisions relied by the petitioner are distinctly different inasmuch the petitioner in the present writ petition had challenged a subsisting valid contract to which the petitioner is not a party nor affected by the impugned order. 17. The representation dated 29.08.2018 of the respondent No. 3 nowhere mentioned the failure of the respondent No. 3 to continue as distributor of online lottery except an indication of declination of sale of lottery tickets pursuant to imposition of GST. That does not amount to surrender any of the draws allotted to it as per the two agreements executed with it by the Government of Arunachal Pradesh. Moreover, the respondent No. 3 under Clause 14 of the agreement promised to pay minimum guaranteed revenue regardless of the volume of business. 18. From the submissions of the learned counsel for the respondents it would be proper in my opinion, to take up the issue of maintainability of the writ petition. With the said object let me take note the relevant facts which can very well be drawn from the submissions of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions. 5.5 Subject to the relevant provision as contained in sub-rules (2), (3) and (4) of the Central Lotteries (Regulation) Rules 2010 read with relevant provisions of Lotteries (Regulation) Rules 2013, the Government, on a request made by the Sole Distributor in writing may change the lottery schemes keeping in view the changed market conditions. 21. Termination: 21.2 The Government reserves the right to terminate the Agreement by giving 60 (sixty) days notice in writing to the Sole Distributor for any clear or proven failure of performance or violation or breach of any of the terms and conditions of the Agreement. 21.3 In case the Sole Distributor desires to stop the marketing of tickets on his own will, he shall have to give 60 (sixty) days notice in writing to the Department of State Lottery. In case the Sole Distributor fails to give the prior notice of 60 (sixty) days he shall have to compensate the Government for the loss of revenue which it would have earned during the period of 60 (sixty) days as per rates prevailing at the time of stoppage of sales, and the amount shall be recovered from the Bank Guarantee or any other valuable security as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. The other ground for challenge is that the representation dated 29.08.2018 of the respondent No. 3 goes to show the inability of the said respondent No. 3 to perform its part of the contract of the distributorship of online lotteries. In terms of clauses 21.2 and 21.3 of the agreement dated 27.07.2015 the contract of distributorship were required to be terminated. Pursuant to such termination the respondent No. 2 could have either considered the representation submitted by the petitioner in terms of clause 21.5 of the agreement alternatively, ought to have issued fresh tender. But by the impugned decision dated 12.09.2018 at the instance of the Chief Minister, the Government of Arunachal Pradesh had shown undue and uncalled favour to the respondent No. 3. While doing so the respondent No. 1 had abdicated its statutory power in favour of the Chief Minister. 20. The learned counsel for the respondents took the stand that the petitioner has no locus standi to seek for specific performance of the contract entered into by the Government of Arunachal Pradesh in the Department of State Lottery and the respondent No. 3 as the petitioner is totally a stranger to the said agreement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers. But, after the State or its agents have entered in to the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Art. 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by 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. 23. Thus it was held that once the State or its agents enters into ordinary contract with individual citizen, the State or its agents are no longer bound by Constitutional provision but by the contract and its terms for determination of rights and obligations. The State or its agents are bound by Constitutional provisions till the time a tender process is brought to its logical conclusion deciding with whom the Government could contract. The petitioner did not participate in the tender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... people at large, faithfully and hopefully participate in larger number for the greater yield of its revenue with no fear in their mind. The Act further ensure by virtue of Section 4(d) that the proceeds of the sale of such lottery tickets is credited to the public accounts of the State. This is to give clear message to the participants that the proceeds are not in the hands of individual group or association but is ensured to be credited in the State accounts. But, as we have said, this by itself would not take it outside the realm of gambling. It remains within the same realm. In this regard there is no difference between lotteries under Entry 34, List II and a lottery organised by the State under Entry 40, List I. When character of both the State organised lotteries and other lotteries remains the same, by merely placing the apparel of the State with authority of law, would not make any difference, it remains gambling as element of chance persist with no element of skill. Even other lotteries under Entry 34, List II could only be run under the authority of the State or the law of the State. Only difference is in one case, authority is that of State and in other, the Parliament. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title to something ? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public ? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority ? Is the statute, in the context of which the scope of-the words person aggrieved is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community ? Or is it a statute dealing with private rights of particular individuals ? 29. If the aforesaid tests are applied it is found that the petitioner is not entitled to objectand be heard by the respondent No. 1 while taking the impugned decision. The impugned decision dated 12.09.2018 does not in any manner injure the interest of the petitioner recognized by law. The inpugned decision was taken within the stipulated terms of the contract to which the petitioner is not a signatory. Nor the decision taken complained of, deprived the petitioner of any legal or constitutional righ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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