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Judgment
The first petitioner is the sole Marketing Agent of the lottery tickets of Royal Government of Bhutan in the territory of India. The second petitioner is the stockist of the said lottery tickets appointed by the first petitioner for the State of Andhra Pradesh. They are aggrieved by the action of the Police Officials in the State of Andhra Pradesh in not allowing or permitting them the sale of Bhutan Government lottery tickets. Shorn of all the details, the authority and jurisdiction of the respondents in interfering with the rights of the petitioners to sell Bhutan Government lottery tickets (for short ''lottery tickets'') in the State of Andhra Pradesh is challenged. It is their case that the respondents have no authority in law whatsoever to interfere with their right to sell the lottery tickets in the State of Andhra Pradesh.
It is their case that the Government of India and the Royal Government of Bhutan have entered into a bilateral agreement of trade and commerce signed between the two countries for a period ten years from 2nd March, 1995 and the said agreement inter alia includes the sale of lottery tickets promoted and sponsored by the Royal Government of Bhutan in the entire territory of India. The Lotteries (Regulation) Act, 1998 (for short ''Act No. 17 of 1998) deals with lotteries organised, conducted and promoted by a State within the territory of India. The sale of Bhutan Lottery tickets within the territory of India including the State of Andhra Pradesh is not covered by the said Act. The sale of lottery tickets is legal and valid.
It is also the case of the petitioners that when there was interference with the sale of the lottery tickets of Royal Government of Bhutan in India, the Director (North), Ministry of External Affairs, Government of India, New Delhi has addressed a letter dated 14-10-1997 requesting the Ministry of Home Affairs, Government of India to address the Chief Secretaries of all the States and Union Territories in India not to interfere with the sale of the said lottery tickets. The Ministry of Home Affairs, Government of India in its turn informed all the Chief Secretaries of the States and Union by letter dated 21-5-1998 that sale of said lottery tickets is not prohibited by the Central Act. The petitioners placed particular reliance upon the letter written by the Government of India, Ministry of Home Affairs dated 21-5-1998 requesting the Chief Secretary of the Government of Andhra Pradesh for taking further appropriate action in the light of the letter dated 21-1-199 sent by the Ministry of Home Affairs in which it is clarified that the sale of lottery tickets of another Country like Bhutan was not prohibited under Ordinance No.20 of 1997, as the Ordinance deals with respective State Governments power to prohibit sale of tickets of lotteries organised, conducted or promoted by another State and not by another Country.
It is the case of the petitioners that the State Government is bound to implement the directions of the Government of India and permit the petitioners to sell the said lottery tickets in the State of Andhra Pradesh.
In the perception of the Government of Andhra Pradesh, the poorer sections of the Society are adversely affected by the lottery business. The weaker sections of the Society are put to serious loss and purchase of lottery tickets by those sections had resulted in serious adverse, economic impact. The Government of Andhra Pradesh took decision not to run any lottery and banned all lotteries in (he State of Andhra Pradesh.
In the counter-affidavit filed by the respondents, reliance is placed upon the provisions of A.P. Lotteries Act, 1968 (for short ''the Act''). Section 3 of the said Act declares all lotteries as unlawful, however, subject to the provisions of the said Act. Provisions of Sections 6 to 11 of the Act deal with private lotteries and their licences. By way of A.P. Act No.31 of 1995, Sections 6 to 11 of the principal Act were omitted. The affect of the said amendment is the total ban of lotteries in the State of Andhra Pradesh.
It is the case of the State Government that all lotteries in the State of Andhra Pradesh are declared unlawful and therefore, the petitioners are not entitled to" continue their business of selling the said lottery tickets in the State of Andhra Pradesh. The business carried on by the petitioners is unlawful and illegal. The Government and its Police Department is under obligation to enforce the provisions of the A.P. Lotteries Act, 1963. It is the case of the Government that it is duty bound to take appropriate action to prevent the sale and purchase of lottery tickets.
The Constitutional validity of the A.P. Lotteries Act, 1968 is not under challenge. The said Act in unequivocal terms declares all lotteries as unlawful in the State of Andhra Pradesh. It is therefore, obvious that no person can claim any statutory right to carry on any trade or business in lotteries. It is well settled that there is no fundamental right to carry on any trade or business in sale of lottery tickets. The trade, business and commerce protected by Article 19(1)(g) of the Constitution of India are only those activities which could be regarded as lawful trading activities, as sale of lotteries is not a trade but res extra commercium and such trade, business does not fail within the purview of the Article 19(1)(g). (See The State of Bombay Vs. R.M.D. Chamarbaugwala, .
Sri E. Manohar, learned senior Counsel appearing on behalf of the petitioners would strenuously contend that the Government of Andhra Pradesh is bound to carry out the directions issued by the Central Government and accordingly permit the petitioners to carry on their business of sale of said lottery tickets in the State of Andhra Pradesh. It is submitted that the bilateral agreement of trade and commerce signed between the two countries viz., India and Bhutan has to be honoured by the Government of Andhra Pradesh.
Sri D. Prakash Reddy, learned Additional Advocate General would contend that the agreement of trade and commerce between the Government of the Kingdom of Bhutan and the Government of the Republic of India itself provide for the sale of Bhutan lottery tickets in India subject to the relevant laws which may be in force in the territory of India and the relevant law in force in the State of Andhra Pradesh is Lotteries Act, 1968 which declares all lotteries as illegal. Learned Additional Advocate General submits that no State Government can be compelled to act contrary to its own legislation. Learned Additional Advocate General would further urge that the so-called letters written by the Ministry of Home Affairs cannot be treated as lawful directions. It is urged that there is no law enacted by the Parliament for the purpose of implementation of the treaty/agreement entered between the Government of Bhutan and the Government of India.
It may be noticed that the State Government are not subordinates to Government of India. The States are not satellites and subordinate to Union of India. States are independent and autonomous units with distinct legislative and executive power. They function and operate within the constitutional scheme. It is not as if the Government of India can issue any and every direction to the State Government. Part XI of the Constitution of India deals with relations between the Union and the State including the legislative and administrative relations. It is true that Parliament has power to make any laws for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other Country, or any decision made at any international conference, association or other body. Such law can be enacted by the Parliament even with respect to any of the matters enumerated in List II in the Seventh Schedule which otherwise exclusively vest in the State Legislature. It is the Parliament alone which is entrusted with such power to make any law for the purpose of implementing any treaty or agreement or convention as the case may be. Admittedly there is no such law enacted by the Parliament to give affect to the agreement of trade and commerce by the Government of the Kingdom of Bhutan and the Government of the Republic of India which had come into force with effect from 2nd March, 1995, It would have been a different matter altogether, had the Parliament enacted law for implementation of the agreement and specifically providing for sale of Bhutan Lottery tickets in India including in the Slate of Andhra Pradesh. Parliament could have even altered the existing law validly enacted by the State of Andhra Pradesh for the purpose of implementation of the said agreement. Validly enacted piece of legislation by a competent State Legislature cannot be altered or amended through letters howsoever high that authority may be. Article 253 of the Constitution of India gives power only to the Union Parliament to make any law for implementing treaty, agreement or convention and such law may be even with respect to any of the matters enumerated in List II of the Seventh Schedule, though the Legislature of the State has exclusive power to make law in respect of those matters. In this view of mine, I am supported by a decision of Madhya Pradesh High Court in WP No.2495 of 1998 dated 22-1-1999.
It is the constitutional obligation of every State to exercise its executive power so as to ensure compliance with the laws made by the Parliament and the Union Government in exercise of its executive power is entitled to give directions to a State only for the purpose of ensuring compliance with the laws made by the Parliament. It is not as if any and every directions can be issued by the Government of India. The Constitutional scheme does not provide for issuance of any such directions.
The Union of India is not impleaded as one of the party respondents to this writ petition. It is difficult to discern as to the nature of the letters purported to have been written by the Government of India, Ministry of Home Affairs dated 21-1-1998. The letter merely clarifies the apprehension of the Royal Government of Bhutan about the possibility of State Governments in India invoking Section 5 of Ordinance No.20 of 1997 which deals with regulations of the lotteries run by the State. In the said letter, it is clarified that Section 5 of the Ordinance only deals with the regulations by the State Governments, within their territory, the sale of tickets of a lottery organised, conducted or promoted by the another State and its scope does not extend to the sale of lottery tickets of another Country like Bhutan. In the same letter, it is however, clarified that sale of tickets of lottery of the Royal Government of Bhutan will, however, be subject to Indian Laws on the subject. A reading of the said letter and the letter dated 21-5-1998 by the Ministry of Home Affairs, does not reveal as if it is the direction issued by the Government of India in purported exercise of its executive power. The letter cannot be treated as a direction issued by the Union for the purpose of ensuring compliance with the laws made by the Parliament. The letter cannot be treated as direction by the Union of India to the State Government requiring it to exercise its executive power in a manner not to impede or prejudice the exercise of the executive power of the Union. In nutshell the letters addressed by the Ministry of Home Affairs cannot be treated as directions by the Union of India traceable to Articles 256 and 257 of the Constitution of India. The power cannot be traced to any other provisions of the Constitution of India. The letters are to be treated as routine correspondence between the Government of India and the State Government.
Obviously such letters have no bearing whatsoever and impact qua the provisions of A.P. Lotteries Act, 1968, Section 3 of the said Act completely prohibits the business of lottery in the territory of the State of Andhra Pradesh. Bilateral agreement itself has made the terms of agreement subject to the laws imposed in the territory of India. A.P. Lotteries Act, 1968 is valid piece of legislation and in force in the State of Andhra Pradesh. Neither the letter purported to have been sent by the Ministry of Home Affairs nor bilateral agreement itself could have any bearing whatsoever in the matter of implementation of the A.P. Lotteries Act, 1968 by the Government of Andhra Pradesh.
The petitioners herein are not entitled to continue their business in sale of lottery tickets in the State of Andhra Pradesh. That activity is completely prohibited by Section 3 of the A.P. Lotteries Act and no mandamus could be issued by this Court compelling he State Government to act contrary to law. The State Government cannot be compelled to violate the provisions of law. Any such direction could be destructive of Rule of Law.
For the aforesaid reasons, the writ petition fails and shall stand accordingly dismissed. No order as to costs.