Orissa High Court
Dilu Sahu And Ors. vs State Of Orissa And Ors. on 16 November, 2004
Equivalent citations: AIR2005ORI89, 99(2005)CLT666, 2005(I)OLR60, AIR 2005 ORISSA 89, (2004) 1 ORISSA LR 60, (2005) 30 OCR 197, (2005) 99 CUT LT 666
Author: Pradip Mohanty
Bench: A.K. Patnaik, Pradip Mohanty
JUDGMENT Pradip Mohanty, J.
1. All these Writ Applications under Articles 226 and 227 of the Constitution of India have been filed challenging the notification dated 14.10.1999 issued by the State Government in exercise of its power under Section 5 of the Lotteries (Regulation) Act, 1998 (hereinafter referred to as "the Act"). Since the question of law involved in all these Writ Applications is one and the same, they are disposed of by this common judgment.
2. The State Government has issued a notification dated 14.10.1999 prohibiting sale of tickets of all lotteries organised, conducted or promoted by other States within the State of Orissa. This notification has been issued in exercise of the power under Section 5 of the Act which is under challenge. The copy of the said notification has been annexed as Annexure-2 to W.P.(C) No. 2893 of 2004. Prayer has also been made to declare Section 5 of the Act as inter vires. The State Government has filed its counter supporting the notification.
3. Mr. Bijan Ray, Learned Senior Advocate appearing for the petitioners in all these cases, argues that in view of the provisions contained in Section 10 of the Act, the State Government has no power to issue any such notification in absence of any direction from the Central Government. According to Mr. Ray, unless the Central Government authorises the State Government in exercise of its power under Section 10 of the Act, the State Government on its own cannot issue any notification prohibiting sale of tickets of lotteries organised, conducted or promoted by other States. The submission with regard to vires of Section 5 of the Act is however not pursued in view of the judgment of the Supreme Court in B.P. Enterprises v. State of U.P., AIR 1999 SC 1867.
4. Learned Additional Government Advocate-Mr. G. K. Mohanty, on the other hand, submits that in view of the language employed in Section 5 of the Act which is clear and unambiguous, the State Government is competent to use the impugned notification prohibiting the sale of tickets of lotteries organised by every other State. He further submits that Section 10 of the Act does not control the power of a State Government, which it is authorised to do in Section 5 of the Act, and in exercise of its power under the said Section, the State Government has rightly issued the impugned notification to prohibit the sale of tickets of lotteries organised by other States.
5. The vires of the Act, more particularly the vires of Section 5 thereof, was challenged before the Supreme Court, but the Supreme Court upheld the validity of the Act in the case of B.R. Enterprises v. State of U.P., AIR 1999 SC 1867, and in para-92 of the said judgment held as follows :
"We find on plain reading of Section, it empowers the State Government within its State to prohibit the sale of tickets of the lotteries organised by every other States. There is also nothing in the language reading by itself so as to say, whether such power can be exercised by State while running its own lottery or can be exercised only where such State does not run its own lottery. This leads to two possible interpretations, as referred to above. In view of settled principle of interpretations, the interpretation given by the Union to read down the provision has substance. This would mean State could only exercised such discretion if it decides not to have any lottery within its territory including its own lottery. In this situation, the delegate is tied down by this limitation which itself is a clear guide to a State hence cannot be said to be unbridled delegation. So even to the first part it cannot be said to be arbitrary nor unbridled. So, we have no hesitation to approve the interpretation given by the Union to uphold the validity of Section 5."
6. Therefore, Mr. Ray, Learned Senior Advocate, has rightly not pressed the validity of the Act so far as Section 5 is concerned and made his submissions only challenging the notification of the State Government under Annexure-2 to the W.P.(C) No. 2893 of 2004. The crux of the submission of Mr. Ray is that under Section 10 of the Act, power has been vested in the Central Government to give direction to the State Government to carry into execution in the State any of the provisions of the Act and, therefore, the State Government cannot exercise its power under Section 5 of the Act in absence of any direction from the Central Government under Section 10 of the Act and as yet no directions have been issued by the Central Government to the State Government to carry into execution any of the provisions of the Act in the State of Orissa.
Sections 1, 5 and 10 of the Act which are relevant for the purpose of deciding the aforesaid contentions raised by the Learned Counsel for the parties are quoted herein below :
"1. Short title, extent and commencement: (1) This Act may be called the Lotteries (Regulation) Act, 1998.
(2) It extents to the whole of India.
(3) It shall be deemed to have come into force on the 2nd day of October, 1997.
5. Prohibition of sale of ticket in a State : A State Government may, within the State, prohibit the sale of tickets of a lottery organised, or conducted promoted by every other State.
10. Power to give directions : The Central Government may give directions to the State Government as to carrying into execution in the State of any of the provisions of this Act or of any Rule or Order made thereunder."
It will be clear from the language of Sub-section (2) of Section 1 that the Act extends to the whole of India. Sub-section (3) of Section 1 further states that the Act is deemed to have come into force on 2nd of October, 1997. Hence, all the provisions of the Act including Sections 5 and 10 thereof have come into force with effect from the 2nd of October, 1997. Since Section 5 of the Act has already come into force with effect from 2.10.1997, the State Government could issue a notification on 14.10.1999 prohibiting the sale of tickets of a lottery organised, conducted or promoted by every other State under Section 5 of the Act without even a direction of the Central Government under Section 10 of the Act. This is because there is no mention whatsoever in Section 5 of the Act that the State Government could prohibit the sale of tickets of a lottery organised, conducted or promoted by every other State only upon a direction being given by the Central Government under Section 10 of the Act. Section 10 of the Act empowers the Central Government to give directions to the State Government as to carrying into execution of any of the provisions of the Act or of any Rule or Order made thereunder. This power appears to have been reserved to the Central Government to be exercised when the State Government does not execute any provision of the Act or any Rule or Order made thereunder but it the Central Government thinks that the said provision of the Act or any Rule or order made thereunder should be executed. We are thus of the view that a direction of the Central Government under Section 10 of the Act is not a condition precedent for exercise of power by the State Government under Section 5 of the Act.
8. Mr. Ray, Learned Counsel for the petitioners, however, cites the decision of the Supreme Court in the case of State of Bombay v. Salat Pragji Karamsi, AIR 1957 SC 517, wherein the Bombay High Court held that the provisions of the Bombay Prevention of Gambling Act could not be applied to Kutch without a notification under Section 1 of the said Act. On a reading of the facts of that case we find that Section 1 of the Bombay Prevention of Gambling Act provided that the Act extended to the city of Bombay, to the island of Salsette, to all Railways and Railway Station houses and further that all or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the Official Gazette to any local area or any part thereof. After considering the language of Section 1 of Bombay Prevention of Gambling Act, 1987, the Supreme Court held that the notification was necessary before it could be brought into force in any part of Kutch. But the language of Sub-sections (2) and (3) of Section 1 makes it clear that the Lotteries (Regulation) Act, 1998 extends to the whole of India including the State of Orissa and is deemed to have come into force on 2nd of October, 1997 and therefore there is no further necessity of a notification to apply the said Act to the State of Orissa.
9. Mr. Ray next cites the decision of the Supreme Court in The State of Orissa v. Chandrasekhar Singh Bhoi, etc., AIR 1970 SC 398, and submits that law cannot be said to be in force unless it is brought into force by a notification under the said Act. Section 1 (3) of the Orissa Land Reforms Act provided that the Act shall come into force in whole or in part on such date or dates as the Government may from time to time by notification appoint and interpreting the said provision, the Supreme Court held that Chapter IV of the said Act was never made operative by a notification. In the said decision, the Supreme Court held that "a law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation". In this case, by the legislative enactment under Sub-sections (2) and (3) of Section (1) of the Lotteries (Regulation) Act, 1998 the said Act has been brought into force in the whole of India with effect from 2nd of October, 1997 and in the said Section 1, no provision has been made by the legislature delegating the power to the delegate to bring the Act into force or any particular provision into force as and when such delegatee deems fit and proper.
10. Mr. Ray next relies on the decisions of the Supreme Court in The State of Rajasthan v. The Mewar Sugar Mills Ltd. Bhopalsagar, AIR 1969 SC 880, and Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors., AIR 2004 SCW 4483, for proposition that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions of the same Act so as to make a consistent and harmonious interpretation of the entire statute. He argues that while interpreting Section 5 of the Act, the Court cannot ignore Section 10 of the Act and if the two provisions are interpreted together in a harmonious manner, the power under Section 5 of the Act cannot be exercised by the State Government without a direction of the Central Government under Section 10 of the Act. We are afraid we cannot accept this interpretation. The language of Section 1 of the Act is clear that the Act has come into operation in the whole of India including the State of Orissa with effect from 2nd of October, 1997 and once the Act has come into operation in the State of Orissa, the State Government has the power under Section 5 to prohibit the sale of tickets of the lottery organised, conducted or promoted by any other State even without a direction of the Central Government under Section 10 of the Act. The power of the Central Government to issue any direction to the State Government for carrying into execution of any of the provisions of the Act is a power reserved to the Central government to ensure that the provisions of the Act, and the rules or orders thereunder are enforced and not ignored in any State. This is the only harmonious interpretation of different provisions of the Act including Sections 1, 5 and 10 thereof that we can think of. The interpretation suggested by Mr. Ray would only make the power of the State Government dependant upon the Central Government even though the Act has come into force in the whole of the country and this is not what is intended in the plain language of Section of the Act.
11. For the aforesaid reasons we find no merit in these Writ Petitions and we accordingly dismiss the Writ Petitions. No costs.
A.K. Patnaik, J.
12. I agree.