R. H. Zaidi and R. P. Nigam, JJ.
1. By means of this petition filed under Article 226 of the Constitution of India, the petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing memorandum No. 7501/1 Prize-86 dated 13.10.1986 (Annexure-12 to the writ petition), and for a writ, order or direction in the nature of mandamus commanding the respondents to give first prize of U. P. Raffle Lottery in 227th draw held on 20th July, 1986.
2. The relevant facts of the case giving rise to the present petition as borne out from the material on record, in brief, are that it was in the year 1986 that the petitioner purchased a U. P. Lottery ticket being Ticket No. RB-149245 of 227th draw. The said tottery was being conducted by the Government of Uttar Pradesh. As mentioned in the aforesaid ticket, the first prize winner was entitled to Rs. 1,00,000 in cash or an Ambassador car and a scooter. On the reverse side of the said ticket. It was noted that the prize winners should send the tickets by insured post if they do not present the same personally or could send through a reputed bank to the Director of the State Lotteries at Lucknow. Xerox copy of the said ticket has been filed as Annexure-1 to the writ petition.The result of 227th draw, held on 20.7.1986, was published in the newspapers. The ticket purchased by the petitioner was declared the first prize winner, the petitioner was, thus, entitled to receive first prize. The aforesaid lottery, since prohibited, used to be governed by the U. P. State Lottery Rules. 1969. Rule 28 of the said rules itself provided that outstation prize winners may send the prize winning tickets and the stamped receipt by registered post to the Director of the State Lotteries indicating whether they would like to receive the prize in cash which could be sent to them by bank draft, postal order or money order, the charges of which were to be borne by the prize winners. It was also noted that no claim for the loss of the tickets etc., in transit, would be entertained. Claim of the prize money could be made within 30 days from the date of publication of the result falling which claim for the prize shall lapse and prize automatically forfeited to the Government. Said rule further provided that on an application made in this behalf within 90 days from the date of publication of the result. State of Uttar Pradesh could authorise payment of prize money if it was satisfied that the prize winner was, for sufficient reasons, prevented from claiming the money within 30 days. On seeing the result of the lottery, the petitioner, firstly approached reputed banks for sending the ticket to the Director of the State Lotteries at Lucknow but the banks refused to accept the ticket, as the petitioner was not interested in money transaction : but in Ambassador car and scooter. The petitioner opted for the second alternative prize and sent the original ticket with photocopy of the ticket duly attested by a Judicial Officer, passport size photograph and an affidavit regarding ownership of the ticket with duly filled in application for the prize, under insured post from Calcutta General Post Office along with a covering letter dated 5.8.1986 to the Director of State Lotteries. Lucknow. The said ticket was sent by insured post valuing at Rs. 1,00,000 which was accepted by Calcutta General PostOffice and receipt No. X-289 was issued to the petitioner. Since the first prize either in cash or kind or reply of the aforesaid letter was not received, the petitioner sent reminder to the Director of State Lotteries, Lucknow on 1.9.1986 requesting him to deliver the Ambassador car and Scooter at Calcutta. Thereafter, two more reminders were sent by the petitioner and it was only on 5.10.1986 that the petitioner received letter dated 22.9.1986 from the Deputy Director. State Lotteries, U. P.. whereby the petitioner was informed that his ticket was not received in the office of the Director of State Lotteries. U. P., consequently, it was not possible to concede to the request of the petitioner to give him first prize. The petitioner, therefore, wrote a letter to the Presidency Post Master General Post Office. Calcutta, enquiring about the delivery of the insured letter No. X-289. The petitioner was informed by him that necessary action was being taken and enquiries were being made in the matter, vide letter dated 29.9.1986. As the delay in delivery of the ticket to the Director of State Lotteries was caused for the reasons beyond control of the petitioner, the petitioner asked his representatives to apply for extension of time. It was thereafter, revealed that on 10.8.1986 a dacoity was committed in 5 Up Punjab Mall near Jhajha (Bihar) in which the petitioner's ticket was lost. The Deputy Director of State Lotteries, vide his memorandum dated 13.10.1986 informed the petitioner that time limit of 90 days was to expire on 20.2.1986, thereafter extension of time was not possible and that the ticket should be presented before the aforesaid date. Since the first prize of the aforesaid draw was not given to the petitioner, the petitioner, firstly, approached Calcutta High Court for aforementioned reliefs but the Calcutta High Court refused to entertain the petition on the ground of territorial jurisdiction. It was, however, observed by Calcutta High Court that the petitioner was at liberty to move the writ petition before the appropriate Court withinthe time prescribed by law. The petitioner, therefore, filed the present petition before this Court.
3. The writ petition was entertained and on 14.12.1987, following order was passed by a Division Bench of this Court :
'List it in the second week of January, 1987 to enable the learned counsel to obtain instructions.
Till then first prize of the petitioner in respect of Ticket No. RB-149245 of U. P. Raffle Lottery shall not be forfeited.'
4. On behalf of the respondents, a counter-affidavit has been filed in which it has been asserted that since the prize winning ticket could not be presented by the petitioner before the Director of State Lotteries within the time prescribed under law or thereafter, the petitioner was not entitled to receive the first prize. Reliance has been placed by the respondents upon Rule 28 of the U. P. State Lotteries Rules. 1969, which provides that no claim for the loss of the ticket etc., in transit, shall be entertained. In view of the said Rule, it was asserted that the petitioner was not entitled to receive the first prize. According to the respondents, it was bounden duty of the petitioner to ensure that the ticket in question is made available in the Lottery Directorate within the time prescribed under the Rules and in the absence of the original prize winning ticket, the prize cannot be released : the writ petition filed by the petitioner was, therefore, liable to be dismissed.
5. In reply to the counter-affidavit, the petitioner has also filed a rejoinder-affidavit controverting the facts stated in the counter-affidavit and reiterating and reasserting the facts stated in the writ petition.
6. Learned counsel for the petitioner vehemently urged that Rule 28 of the aforesaid Rules was invalid and unenforceable in law, that, admittedly. Ticket No. RB-149245 won the first prize in the aforesaid draw. Nobody except the petitioner claimed the first prize on the basis ofthe said ticket and till date first prize has not been given to anybody, therefore, the petitioner could not be deprived of his right to receive the first prize either in cash or in kind. The respondents have got no right to refuse to give the first prize to the petitioner and to forfeit the said prize and that the petitioner followed the instructions in sending the prize winning ticket by post, given by the Director of State Lotteries and sent the ticket under insured post with necessary documents on correct address, the ticket shall be deemed to have been delivered to the addressee, therefore, the respondents could not deny to release the first price in favour of the petitioner. It was also urged that the insured registered letter sent at correct address to the Director of State Lotteries within the time prescribed for the same, shall be deemed to have been delivered to him. The burden was upon the addressee to prove that the said letter was not delivered to it. Bare denial of delivery of the letter was not sufficient.
7. On the other hand, learned standing counsel submitted that in view of the provisions of Rule 28 the prize could be released only on presentation of the ticket before the competent authority, the Director of State Lotteries personally or through post within the time prescribed under law. The ticket in question having not been presented or delivered to the Director, the petitioner was legally not entitled to receive any prize ; the writ petition filed by him was, therefore, liable to be dismissed.
8. We have considered the submissions made by learned counsel for the parties and also carefully perused the record.
9. From the narration of the facts made above, it is evident that the lottery ticket in question was in possession of the petitioner and the same was sent by him to the Director of State Lotteries. Lucknow. The said facts are borne out from the material on record, particularly xerox copy of Ticket No. RB-149245 (Annexure-1), registered receipt No. X-289 (Annexure-5), letter dated 5.8.1986 and the affidavit contained inAnnexure-4, the genuiness of which has not been disputed or denied by the respondents in the counter-affidavit. It is also evident from the result of the draw that ticket held by the petitioner was declared to be the first prize winning ticket. The petitioner, in accordance with the instructions contained on the reverse of the ticket, was legally authorised to send the ticket by post under insured registered cover. The petitioner having sent the said ticket by insured registered post after valuing it at Rs. 1,00,000. The said letter was sent on correct address and name ; the same could be deemed to have been, delivered to the addressee within a reasonable time, i.e., within 3-4 days from the date it was dispatched. But, the petitioner himself admitted that the ticket was lost in transit ; as in the train by which the ticket was sent, dacoity was committed, therefore, there was no question of presumption of delivery of registered letter to the addressee. We will have to see as to whether inspite of loss of ticket, the petitioner was entitled to received the first prize.
10. It has not been disputed by the respondents that the petitioner was the first prize winner of 227th draw of the U. P. Lottery held on 20.7.1986. Further, from the material on record, as stated above, from the Xerox copy of the Ticket No. RB-149245, Annexure-1, postal receipt No. X-289 (Annexure-5), letter dated 5.8.1986 and the affidavit contained in Annexure-4. It is evident that the ticket purchased by the petitioner was the first prize winning ticket. The only objection to release the first prize in favour of the petitioner is based on Rule 28 of the Rules framed under the Act which reads as under :
'28. Outstation prize winner may send to the Director the prize winning ticket and the same receipt by registered post indicating whether they would like their prize money to be remitted to them by bank draft, postal order or money order, the charges for which shall be borne by the prize winner. No claim for theloss of ticket etc. In transit shall be entertained.'
11. The aforesaid rules permit the outstation prize winners to send to the Director of Lottery the prize winning ticket and the same receipt by registered post indicating whether they would like their prize money to be remitted by bank draft, postal order or money order. Subject to the condition that they would be liable to pay the charges incurred or paid or commission in preparation and in sending the bank draft, postal order, money order. Even on the terms and conditions printed on the lottery ticket in question, the petitioner could send the first prize winning ticket to the Director of State Lotteries by post. The petitioner was, thus, legally entitled to send his first prize winning ticket to the Director of State Lotteries. Reliance has been placed by the contesting respondents on the last sentence of the aforesaid rules which provides that 'no claim for the loss of the ticket in transit shall be entertained.' it has not been stated that the aforesaid rule was ever published for the general information throughout the country. Although the lottery tickets could be sold and purchased by anybody throughout the country. The rules are said to have been published in the U. P. Gazette Extraordinary, dated December 5. 1968, the circulation of which is limited to the department concerned within the State. Thus, the knowledge of the aforesaid rules cannot be imputed to all the persons who could purchase the lottery ticket. Further, on the lottery ticket in question no such condition was printed as provided under the aforesaid rules. By the learned counsel for the petitioner, in support of his submission that, in the facts and circumstances of the present case, the claim of the petitioner to receive first prize cannot be defeated, implicit reliance is being placed upon the following decisions :
(i) M/s. Road Transport Corporation and others v. M/s. Kirloskar Brothers and others. AIR 1981 Bom 299 and
(ii) The Special Secretary to Government of Rajasthan (F),Jaipur, Rajasthan and others v. Vedakantara Venkata Ramanna Seshaiyar and others, AIR 1984 AP 5.
12. In the case of M/s. Road Transport Corporation (supra), the Bombay High Court dealing with the first appeal arising out of a suit for recovery of damages caused due to short delivery of 53 rods on account of negligence of the defendant, ruled as under :
'The trial court has rightly come to the conclusion that under the amendment of provisions of Section 8 of the Careers (Act No. 3 of 1865) every owned career shall be liable to the owner for loss or damages to any property caused by negligence or fraud of defendants or their agent notwithstanding anything contained in the terms and conditions in Exhibit 49. The lower court was right in holding that such condition would not exonerate defendant from liability for short delivery of goods and further the finding of trial court that demand given by Shri Gole, the plaintiff witnessed that the said consignment to the defendant for being transported from Calcutta to Kirloskar was subject to the terms and conditions printed overleaf of the consignment would also not assist the defendants to escape from their liability is also unassailable. Although plaintiff has proved in such a case short delivery or non-delivery is the factum of loss by way of short delivery or non-delivery. The presumption of negligence on the part of defendants being rebuttable presumption, it is for the common carriers--defendants in this case, to rebut such a presumption and if that is not done satisfactorily the suit has to be decreed. The terms and conditions against the aforesaid authority has got no relevance on the facts of the present case, as the petitioner is not claiming damages for the loss of goods during transit against thedefendants. Although the petitioner can claim such damages from the Railway Department who were responsible for the loss of ticket during transit.'
13. The other decision relied upon by the learned counsel for the petitioner is Special Secretary Government of Rajasthan (F), Jaipur. Rajasthan (supra), of course, supports the submissions made by the learned counsel for the petitioner. In the said case Andhra Pradesh High Court directed for recovery of a sum of Rs. 2,34,750.00 with interest and costs inspite of the fact the prize winning ticket was lost.
14. It appears that the State of Rajasthan which was the defendant in the said case, sponsored a welfare scheme of State Lotteries. The tickets used to be sold in all the States of country through agents. The terms and conditions for payment of prize bonus to the sellers etc. used to be printed on the reverse of each ticket. The ticket purchased by the plaintiff in the said case was kept in his purse. Said purse was lost at Poona market, as the same was pick-pocketed by some one, appellant was under the impression that the purse contained some small change and was unmindful of the loss of ticket. Consequently, the matter was not reported to the police. Subsequently, he came to know that ticket purchased by him won the first prize of Rs. 2,5,000.00 in the 30th draw of the Rajasthan State Lottery on 15.12.1972. He thereafter made a report at nearest police station on 18.12.1972 and also sent a telegram to second defendant, the Director of Lotteries, intimating about the loss of the ticket and further requesting not to pay the prize money to any other person. He thereafter made several requests for payment of prize money but all in vain. Consequently, a notice under Section 80. C.P.C.. was served upon the defendants. Thereafter, a suit was filed in forma pauperis by the plaintiff. The suit was contested by the defendants pleading that they were not aware that the plaintiff purchased Rajasthan State LotteryTicket No. D-840618 from D. Sudarsana Rao. They were also not aware D. Sudarsana Rao was a sales boy of the third defendant. They are also not aware that the third defendant was selling tickets in the name and style of Venkateswara Lucky Prize Centre. Vijayanagaram. The defendant, thus, could pay the plaintiff in consideration of the said fact and that he was purchaser of the above ticket. They relied upon the rule analogous to Rule 28, referred to above, which provide as under :
'No prize money will be given if the prize winning ticket is not produced within the aforesaid period' (i.e. 30 days from the date of draw).
15. It was contended that unless they produced the right ticket, plaintiff was not entitled for lottery money, according to scheme, which was published in the Gazette of Rajasthan, dated 12.2.1968, which published a Notification dated 10.12.1968. In the said rule, it was stated that unless prize winner produces the prize winning ticket with the form annexed to the defendant after 30 days from the draw, prize money could not be given to the plaintiff. The trial court decreed the suit. Challenging the validity of the decree passed by the trial court, an appeal was filed by the defendant. In the said appeal the following issues formulated for consideration :
1. Whether this Sub-Court of Bisakha Pattam was competent to entertain and dispose of the present suit?
2. Whether the plaintiff is entitled to prize without production of lottery ticket and whether he has otherwise compiled with the procedure for receipt of money.
16. The first question, referred to above, is not relevant for the purpose of present case inasmuch as on the objection raised by the respondents, the proof filed by the petitioner was not entertained by the Calcutta High Court, but the petitioner again approached this Court, the respondent did not even attempt tochallenge the Jurisdiction of this Court to entertain the present petition.
17. While dealing with the second question which is relevant for the purpose of the present case. It has been ruled as under by the Andhra Pradesh High Court :
'30. From the aforesaid rulings it follows that unless the terms of the contract are arrived at after due negotiation, they cannot be held binding merely because a ticket is later issued containing the said terms. There must also be proof that the terms were meant to be contractual. The said terms must have been brought to the notice of the contracting party at or before the time when the contract was entered into. If the printed terms on the ticket do not, as aforementioned, become part of the contract they cannot be enforced unilaterally, for otherwise, it will amount to an alteration of the terms of the original contract.
31. Bearing these principles in mind, let us examine the facts of the case. The plaintiff purchased the ticket from P.W. 2 who is the salesman of the Agent, P.W. 1 (the 3rd defendant). The material on the reverse of the ticket already referred to, is in small print. There is nothing in the evidence of D.W. 1, the Assistant Director. Small Savings. Rajasthan or in the evidence of P.W. 1 or P.W. 2 saying that the printed matter on the reverse of the ticket is part of any negotiation. Nor is there any other contract signed between the parties. There is nothing in the evidence to show that the attention of the plaintiff was drawn to the said matter at or before the time when the plaintiff paid rupee one for purchasing the lottery ticket. There is therefore nothing to suggest that the plaintiff bound himself by what is printed on the backside of the lottery ticket.
33. Learned counsel for the appellants placed strong reliance on the statement in cross-examination of the plaintiff (P.W. 3) to the effect that the ticket he purchased also contained such rules and regulations....as werecontained on the reverse of Ex. A-18 and that he perused them. P.W. 3 also stated that he knew that the parties are bound by these rules and regulations. However, in re-examination, he Stated that no copy of Ex. B-1 notification was supplied to him when he purchased the said ticket.'
18. The facts of the abovenoted case are similar to the facts of the present case. Even clause 12 of the scheme, contained in Annexure-1, similar to Rule 28 of the rules, referred to above, reads that 'no prize money will be given if the prize winning ticket is not produced within the aforesaid period' (i.e. 30 days from the date of draw).
19. In the present case, no material has been placed on record on behalf of the respondents that the abovenoted rule 28 of the Rules was ever published throughout the country and was made known to the petitioner and the petitioner after understanding the said rule has purchased the ticket which ultimately won the first prize or that there was negotiated agreement between the parties regarding award of no prize in case winning lottery ticket is lost.
20. From the material available on record, it has been conclusively proved that the lottery ticket purchased by the petitioner was the winner of first prize in the draw in question.
21. In the Special Secretary to Government of Rajasthan (Finance), Jaipur, Rajasthan and others v. Vedakantara Venkataramana Seshaiyer and others, AIR 1984 AP 5, Andhra Pradesh High Court after considering the facts and circumstances of that case ultimately ruled as under:
'There is no proof that the above clause which is containedon the reverse of the ticket or in Ex.-1, is the result of a negotiated contract. The rulings both English and Indian are uniform and hold that if there is no such contract entered into by both parties, there must be proof that the terms which are printed on the reverse or otherwise notified elsewhere, have been brought to the notice of the customer or at least that all that could be reasonably done in that regard has been done by the defendants. The greater the rigour of the exclusion of liability, the more the need to bring such clause to the plaintiffs knowledge, or to do all that could possibly be done in that direction. In any event, the said effort on the part of the defendant should have been made at or before the time the plaintiff entered into the contract. The subsequent knowledge of the plaintiff in this regard does not help as stated in Olley's case, (1949) 1 All BR 127 (supra) and Burnett's case, (1966) 1 QB 742 (supra).'
22. Therefore, in view of the law laid down in the abovenoted cases, with which we fully agree, we are constrained to hold that the last sentence of- Rule 28, referred to above, which provides that no claim for the loss of ticket etc. in transit shall be entertained, does not disentitle the petitioner from claiming the first prize in the aforesaid draw. The said clause is unreasonable and is hit by Articles 14 of the Constitution of India, the same is, therefore, inoperative. In view of the aforesaid discussion, this petition deserves to be allowed.
23. Since in the matter of prize, the winner of the prize had the option either to have the prize in cash, i.e., Rs. 1,00,000 or one Ambassador car and a scooter. The petitioner opted for the alternative prize, i.e., one Ambassador car and a scooter.
24. The writ petition succeeds and is allowed. The respondents are directed to award/hand over to the petitioner one Ambassador car and a scooter within a period of one monthfrom the date a certified copy of this order is communicated to the respondents. No order on costs.