Punjab-Haryana High Court
Harish And Ors. vs State Of Haryana And Ors. on 8 April, 1999
Equivalent citations: AIR1999P&H291, (1999)122PLR420, AIR 1999 PUNJAB AND HARYANA 291, (1999) 122 PUN LR 420 (1999) 3 RECCIVR 130, (1999) 3 RECCIVR 130
Author: A.S. Garg
Bench: A.S. Garg
JUDGMENT V.K. Bali, J.
1. This order shall dispose of Civil Writ Petitions Nos. 15975 of 1998 and 1345 of 1999 as common questions of law and fact are involved therein. The facts have, however, been extracted from CWP No. 15975 of 1998.
2. Petitioners Harish and five others, who are engaged in the sale of Haryana Government State Lotteries, at Rohtak, take strong exception to the orders of the Deputy Commissioner and Superintendent of Police, Rohtak directing them not to sell the lottery tickets within 500 metres of the Municipal limits of Rohtak town. They assert that this restriction placed upon their business of selling lottery tickets is wholly unreasonable and that their right guaranteed under Article 19(1)(g) of the Constitution of India, to do any trade and business has been infringed.
3. Brief facts, giving rise to the present writ reveal that the petitioners are doing the business of sale of lottery tickets of Haryana State Lottery at Rohtak for the last so many years and they are earning their livelihood by sale of such tickets. The petitioners are petty sellers of the lottery tickets. They purchase the same from the wholesale agents. They were doing this business for all this while but recently, all of a sudden, the Deputy Commissioner and Superintendent of Police, Rohtak have directed them not to sell the lottery tickets within 500 metres of the outer limits of Municipal Committee, Rohtak.
4. Pursuant to notice issued in this case, respondents 1 to 3 have entered defence and while filing written statement through Anil Kumar, IAS, Deputy Commissioner, Rohtak, they have opposed the cause of the petitioners. It has, inter alia, been pleaded in the written statement filed on behalf of the said respondents that right to carry on trade or business is not an absolute right and reasonable restriction can be put to carry on this right. While permitting to carry on trade and business, other facts, viz., socio economic justice, public peace and public nuisance, likely to be caused by such trade or business, has also to be taken into consideration. To avoid public nuisance, the trade and business cannot be allowed to run in thickly populated areas or near educational institutions, place of worship and place easily accessible to children and females. If the administrative action is in the welfare of the society and against some one that action should be endorsed and implemented. Respondent No. 2, i.e., Director, State Lotteries, Haryana, vide letter dated 24-10-1997 addressed to all the Sales Officers and Authorised Agents, has imposed some conditions enumerated therein. A copy of the said letter has been annexed with the written statement as Annexure R-1. It has further been pleaded that population of Rohtak town is about two lacs and in view of the conditions, referred in letter, Annexure R-1, the petitioners cannot be allowed to put their stalls within 500 metres of the external municipal limits of the town and if the petitioners so desire, they can be allotted place for their stalls within 500 metres of the external municipal limits. The petitioners are neither ready nor willing to comply with reasonable restriction issued by the District Administration regulating the trade or business relating to lotteries.
5. In the additional affidavit filed by Amit Jha, IAS, Director of Lotteries, Haryana, it has been mentioned that the Haryana State, at present, is running nine different daily lottery schemes through the Director of Haryana State Lotteries, Chandigarh. It was mentioned in the meeting of the Council of Ministers, held on 23-10-1997, that the sales of lottery tickets should be restricted to the periphery of a town and not inside the town. In compliance with the observations of Council of Ministers in the said meeting, the instructions, Annexures R1 and R2 regarding imposition of restrictions on the retail sale of lottery tickets in all the districts of the State of Haryana, were issued on 24-10-1997 which read as follows:--
"Within the State of Haryana, retail sale of lottery tickets can be organised outside the Municipal limits at all places save within 50 mts. from any of the National Highways or within 30 mts. of any other road. For the purposes of measuring the abovesaid 50 mts. or 30 mts., the centre of the road shall be taken as benchmark."
(ii) Within the municipal limits the retail sale can only be organised within 1 KM from the external municipal limit for towns with a population of 5 lacs or above or within 500 mts. within the external municipal limits of the towns with a population between 1 lac and 5 lacs or within 200 mts. within the external municipal limits for the towns with a population of less than 1 lac.
6. It has then been pleaded that the instructions dated 24-10-1997 and 4-11-1997, Annexures Rl and R2 were issued due to over crowding on lottery stalls situated in the cities/ towns within the municipal limits which were causing nuisance to the public in general besides maintenance of law and order and to observe the normal restrictions near National Highways/other roads outside Municipal limits to avoid unnecessary crowding near Highways and smooth movements of traffic.
7. Petitioners have filed replication wherein it has been pleaded that in whole of Haryana, all the lottery sellers are selling the tickets of Haryana State Lottery within the municipal limits of their respective cities. Some of the cities, where lottery sellers are doing their business within municipal limits are as follows :--
1. Barah Hazari Chowk, Rewari.
2. Meham Road and Fawara Chowk, Gohana.
3. Saini Market, Near Rly. Road, and Old Bus Stand, Bahadurgarh.
4. Mange Ram Market, Old Bus Stand, Bahadurgarh.
5. S. K. Lotteries, Near Bus Stand, Panipat.
6. Rohtak Road, Panipat.
7. Auto Market, Hisar.
8. Near Bus Stand, Hisar.
9. In Bawa Cinema, Sonepat.
10. In front of Bus Stand, Sonepat.
11. Old Sabzi Mandi, Jind.
12. Near Bharat Cinema, Jind
13. Near New Anaz Mandi, Jind.
14. Bangar Cinema Bridge, Below Hisar Road, Rohtak.
15. In the Bhawan of Home Guard Office, Main Shivaji Colony Chowk, Rohtak.
16. Near New Bus Stand and between Old Bus Stand, Jhajjar.
17. Panchkula City."
8. In the Rohtak City as well, other parties arc selling the lottery tickets near the Bangar Cinema and Shivaji Colony Chowk, as per case of the petitioners, with the connivance of the Deputy Commissioner, Rohlak. It is further pleaded that in whole of the Slate of Haryana, the lottery tickets are being sold within cities. Even in Faridabad, the Govt. has allotted the lottery stalls to the lottery sellers. In Panchkula, the Govt. itself is selling the lottery tickets in the City. There are number of places where the Government has allotted the place within the municipal limits of the cities. That being so, applicability of restrictions, as spelt out in Annexures R1 and R2 in the town of Rohtak and that too for the petitioners alone, is wholly discriminatory.
9. There is no reply to the averments made in the replication.
10. We have heard learned counsel for the parties and gone through the records of the case. During the course of arguments, it could not be disputed that if sale of lottery tickets is limited at the place located outside the municipal limits of town, naturally, the sale of lottery tickets would be minimal. Even though, the averments have been made in the written statement to say that no complaint has been received that the sale of lottery tickets has fallen on account of restrictions, referred to above, but, as mentioned above, during the course of arguments, it could not be disputed that the sale of lottery tickets outside limits of Municipal Committee, where inhabitants of the town go occasionally, has to be absolutely thin. It would virtually amount in taking away the right of selling lottery tickets which has otherwise been permitted to the petitioners by the State or its officers. The question that in these circumstances arises is as to whether the restrictions as spelled out from Annexures R1 and R2, mentioned above, are reasonable ? All that has been stated while pleading that these instructions are reasonable is that the instructions were issued due to over-crowding on lottery stalls situated in the cities/towns within the municipal limits which were causing nuisance to the public in general besides maintenance of law and order and to observe normal restrictions near National Highway/other roads outside municipal limits to avoid unnecessary crowding near Highways and smooth movements of traffic. Whereas, one can understand desirability of not over crowding near the National Highways and other roads, it is wholly un-understandable as to how crowding of lottery stalls or shops can possibly cause nuisance to the public in general and what problem the administration can face while maintaining law and order. If what is stated may be true, then, in that case, all shops in all the towns which attract lot of customers, for the reason that products sold in those shops are very popular or for any other reason, it could well be urged that the same would cause nuisance or would create law and order problem. Over-crowding of cinemas, bus stands, railway stations and other public places is not unknown particularly in this country. If the argument of respondents is taken to its logical end, then all these places have to be closed down first as that would create nuisance to the public in general and it would be difficult for the Government to maintain law and order. The reasons given in the written statement as also canvassed at the time of arguments trying to spell out a reasonable restriction per se appear to be such which cannot sustain.
11. A Division Bench of this Court in almost similar circumstances, where only five places were fixed for selling lottery tickets, held that "the agreement entered into between the respondents restricting the sale of lotteries at five places, is not reasonable." The judgment aforesaid was rendered in Sumeet Bhatiaetc v. State of Haryana etc., CWP No. 3297 of 1997 decided on 21-8-1997. That apart, it is wholly un-understandable as to how in Rohtak town only the Administration is facing law and order problem and there is apprehension of breach of peace and not in any other town located in the State of Haryana. As mentioned above, the petitioners have specifically averred in the replication filed by them that the restrictions, as spelled out in Annexures R1 and R2 have been confined only to Rohtak town and not in any other town in the State of Haryana. If that be so, and as it is, inasmuch as this assertion made in the replication could not even be refuted during the course of arguments, action of the respondents and particularly that of Deputy Commissioner and Superintendent of Police, Rohtak violates Article 14 of the Constitution of India as well.
12. For the reasons mentioned above, we hold that the action of Deputy Commissioner and Superintendent of Police, Rohtak in placing restriction upon the trade of the petitioners of selling lottery tickets at Rohtak, is discriminatory as also that the restrictions placed vide Annexures Rl and R2, reference whereof has been made above, are unconstitutional and illegal. The said restrictions to the extent, referred to above, for the sale of lottery tickets are, thus, violative of fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India and, thus, need to be struck down. So ordered. No orders as to costs.