2021 (4) TMI 278
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.... 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 bidders may submit bid separately for each set of draws either for paper lottery or for online lottery or both. The respondent No. 3 submitted its tender for two sets of online lottery and another party, Future Gaming and Hotel Services Pvt. Ltd along with other parties participated in the said RFP. The respondent No. 3 was selected for online lottery and in terms of the offer made by the Government of Arunachal Pradesh the respondent No. 3 accepted its appointment as distributor of online lottery. Out of 3 sets of lotteries, two online sets of lotteries were allotted to the respondent No. 3 as its distributor and one set of conventional paper lottery scheme was allotted to the said Future Gaming and Hotel Services Pvt. Ltd. 3. In terms of the letter of appointment, two separate agreements were executed by and between the Secretary, Department of State Lottery, Government of Arunachal Pradesh and the respondent No. 3. It is alleged that on 08.08.2016 the operation of online lot....
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....pectfully 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 in the nature of Certiorari shall not be issued to set aside/ quash the impugned decision of the respondent authorities of allowing the respondent No. 3 to operate as Distributor of paper lotteries as communicated vide impugned letter dated 12.09.2018, and/or b) A writ in the nature of Mandamus shall not be issued directing the respondent authorities to forthwith cancel/ recall/ rescind and/or otherwise forebear from acting upon the impugned decision of the respondent authorities of allowing the respondent No. 3 to operate as Distributor of paper lotteries as communicated vide impugned letter dated 12.09.2018, and/ or c) A writ in the nature of Mandamus shall not be issued directing the respondent authorities to allow the petitioner to operate the 2 sets of online lotteries at the rates quoted by it, and/ or d) A writ in the nature of Mandamus shall not be issued directing the respondent authorities to forthwith terminate the contract entered into with the respondent No. 3 vide agreement dated 27.07....
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....mmissioner 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 maintainability submits that the respondent No. 3 and the state respondents failed to controvert the statements made in the writ petition and instead took the stand that the petitioner was a stranger so far the contracts of online lotteries were concerned and does not have the locus standi to maintain the writ petition. Referring Chalchitra vs Commissioner, Meerut Mandal & Ors. reported in (2005) 3 SCC 683 it is submitted by Mr. Choudhury that the petitioner being in the same trade of lottery has a right to seek cancellation of the distributorship of the respondent No. 3 on the basis of factual matrix pleaded in the writ petition. In fact there is a specific prayer in the writ petition seeking for a direction to terminate the agreement dated 27.07.2015 entered with respondent No. 3 by the respondent State in view of the admitted and undisputed fact in the representation dated 29.08.2018 in terms of the clause 21 of the agreement. 11. It is further submitted by Mr. Choudhury, learned Senior counsel that the tender was in....
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....der of the distributorship. The agreements stipulate definite contractual rights and obligations on the parties itself and as such it is for the parties to decide whether or not to terminate the agreement based on the terms and conditions of the contract. The petitioner has no locus standi to maintain the writ petition and it is liable to be dismissed. 15. The agreement in question provided that the Government can change the scheme based on market condition and also on a request received from the distributor in writing. The said conditions are not challenged. If the argument made by the learned Senior counsel for the petitioner is to be accepted the Government should cancel the contract with the respondent No. 3 taking recourse to clause 21 and instead allow the petitioner to run two sets of online lotteries on the strength of clause 21.5. The case of the petitioner essentially is for enforcement of the contract. Such prayer itself is not tenable at the instance of the writ petitioner. The petitioner also made the prayer to float fresh NIT as per as the draws allotted to the respondent No. 3. The contentions of the learned Senior counsel for the petitioner are wholly incongruous a....
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....he writ petition. With the said object let me take note the relevant facts which can very well be drawn from the submissions of the learned counsel which are not disputed as follows: (i) Request for proposal (RFP) dated 01.11.2013 was issued by the respondent No. 1 through its Secretary, Department of State Lottery for selection of distributors for conventional paper and online lotteries. (ii) The petitioner did not participate in the said RFP but the respondent No. 3 along with other bidders including M/s Future Gaming and Hotel Services Pvt. Ltd. participated. The respondent No. 3 participated for two sets of online lottery and the M/s Future Gaming and Hotel Services Pvt. Ltd. for one set of conventional paper lottery. There were in total three sets of lottery under the schemes viz paper and online lotteries. The participants were free to choose the scheme and number of sets. (iii) The respondent No. 3 opted and participated in two sets of online paper lottery. The respondent No. 1 issued letter of appointment dated 23.06.2014 against the bid of the respondent No. 3 in respect of two sets of online lotteries but at the rate quoted by the Future Gaming and Hotel Services ....
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....les, and the amount shall be recovered from the Bank Guarantee or any other valuable security as submitted by the company to the State Government. 21.4 Notwithstanding the above clauses, the Government reserves the right to rescind the Agreement with the Sole Distributor, after clear fifteen days notice in the event of anyone of the following: (a) Fraudulent conduct in sale of lottery tickets by the Sole Distributor; (b) Any act of misconduct or malfeasance on the part of Sole Distributor; (c) Erratic running of lottery without any sufficient causes; 21.5 In such cases, the Government shall be at liberty to appoint another Sole Distributor of its choice on same terms and conditions;" (v) From the aforesaid terms and conditions it is seen that contracts were concluded one stipulating amongst others the duration of the contract, how and in what manner the contract stands terminated with special conditions for invoking the clause of termination of the contract by the respondent State. Further it is also stipulated that the Government on a request made by the Sole distributor in writing may change the lottery schemes keeping in view the changed market condition. (vi) The ....
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....ent No. 3 as the petitioner is totally a stranger to the said agreement. Moreover, the petitioner did not even participate in the NIT/RFP, so it cannot raises its grievance for non consideration of his representation to appoint him as the distributor of online lottery after termination of the contract with the respondent No. 3 by the respondent No. 1. 21. In the light of the argument of the learned counsel let me discuss the issue of locus standi of the writ petitioner. The petitioner did not participate in the tender process/ RFP but the respondent No. 3 participated alongwith other bidders. Respondent No. 3 responded to the terms of letter of appointment issued by the respondent, Secretary, Department of State Lottery, Government of Arunachal Pradesh. Subsequent thereto agreements were entered into by the respondent No. 3 and the Government of Arunachal Pradesh. Had the petitioner participated in the tender process and his bid was rejected then the petitioner would have the right to raise any grievances alleging discrimination/ arbitrariness in the selection process citing violation of Article 14 of the Constitution of India. Subsequent to the finalization of the tender process ....
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....contract. The petitioner did not participate in the tender process and as such the question of challenging any arbitrariness in the tender process or its evaluation does not arise. 24. Further the subsequent act of consideration of the representation of the respondent No. 3 and passing of the order impugned dated 12.09.2018 by the respondent No. 1 is the outcome on the basis of the stipulated terms of the contract. This is because of the fact that clause 5.5 of the agreement dated 27.07.2015 authorises the Government to change the lottery scheme on a request made by the sole distributor. Even if the provision of the said clause 5.5 was wrongly invoked by the Government then also the petitioner cannot agitate before this court under Article 226 of the Constitution of India inasmuch as the petitioner is not a signatory to the said agreement. 25. Mr. Choudhury, the learned Senior counsel for the petitioner wanted to project that the petitioner has a right to file this writ petition on the ground that he is in the same trade and practice as that of the respondent No. 3 and the said right emanates from Article 19(1)(g) of the Constitution of India. 26. The said submission of Mr. Chou....
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....s in one case, authority is that of State and in other, the Parliament. That is why, what is excluded from the penal consequences under Section 294-A, IPC is the lotteries authorised by the State not merely lotteries organised by the State. So, on the reasoning as put forward even lotteries under Entry 34, List II cannot be said to be pernicious. The lotteries authorised by the State also have a sanction in law. As we have said, a gambling may be taxed and may be authorised for a specified purpose, but it would not attain the status of trade like other trades or become res commercium. No gambling could be commercium hence in our considered opinion the principle of RMDC case would equally be applicable even to the State organised lottery. In no uncertain terms the said decision recorded that the constitutional makers could never have conceived to give protection to gambling either under Article 19(l)(g) or it as a trade under Article 301 of the Constitution." 27. In view of the aforesaid ratio it can be concluded that lottery includes gambling as anelement of chance which requires no skill and as held by the Apex court it would not attain the status of trade like other trades or be....