H. Anraj and ors. Vs. State of Maharashtra - Court Judgment

Excerpt:
constitution - lottery - article 258 (1) of constitution of india - government of maharashatra sought to impose ban on sale of lottery ticket within state of maharashtra conducted by government of other state - whether government of state competent to impose ban - government of state has right to conduct lotteries subject to legislation of parliament - since there was not central legislation on subject government of every state had unrestricted right to organise lottery - meanwhile communication issued by government of india followed by presidential order under article 258 (1) with regard to ban on lotteries - the communication entrusted state government permission to organise lottery provide ticket would not be sold in another state without its permission - entrustment of power under article 258 (1) was in respect of lotteries organised by government - state government cannot ban lottery ticket of other states by virtue of entrustment of power under article 258 (1). - [a.k. sarkar,; raghuvar dayal and; v. ramaswami, jj.] p, the tenant of a room, in a block of buildings owned by a trust of which the appellants were trustees, left the room without informing the appellants and leaving k in occupation thereof. the appellants never recognised k as a tenant. no rent was paid from 1st january 1956. the appellants gave the tenant p a notice to quit and thereafter filed a suit against p and k for recovery of possession of the room under the bombay rents, hotel and lodging house rates control act, 1947 on three grounds, namely, sub-letting without permission, non-payment of rent and bona fide requirement the room for their own use and occupation. evidence was led on the second and last grounds. an ex parte decree in ejectment was passed and on 30th april 1959, the appellants obtained possession. on 1st may 1959, k wrote to the accommodation controller that he was evicted and rendered homeless, and the controller on september 10, 1959 passed two separate orders under the bombay land requisition act, 1948, requisitioning the room by one, and allotting the room to k by the other. the appellants moved the high court under art. 226 for quashing these orders but were unsuc- cessful. in appeal to this court, it was contended by the appellants that : (i) since the appellants obtained an ejectment decree on the ground that they wanted the room for their own use and they did not intend to let it out at the time of requisition, the room would not be 'premises' under s. 4(3) of the act of 1948 which could be requisitioned; and (ii) the order of requisition was passed mala fide. held: (i) (by full court) : the room was 'premises' within the definition of that word in the act of 1948 and could be requisitioned. [327 h; 338 f] per sarkar j : the expression "let or intended to be let separately" in the definition of premises in the act of 1948 is only applicable to a' part of a building for there is no question of a whole building being let separately. the words "intended to be let" in this definition do not refer to any intention to let, actually existing at the time of the requisition; they have been used to indicate that a part of a building which had never been let before would not be "premises" within the act unless the lessor had intended to let it separately. if it is proved that the landlord had at any time let or intended to let a part of a building separately, it would for all time to come be 'premises' within the act of 1948. [326 h; 327 d, e] per raghubar dayal and ramaswami, jj : the words 'let or intended to be let separately' can apply only to the letting of a part of building, as rightly, a landlord of a building is not to be forced to let a part of the building when he is in occupation of it. therefore, from the date of the enforcement of the requisition act, every building comes within the expression "premises" and a part of a building comes within the expression, if it is let or if it is intended to be let separately on that date. it would be impracticable to decide every time a part of a building fell vacant, whether the landlord intends or does not intend to let it. [337 g-h; 338 b, e] (ii) per raghubar dayal and ramaswami, jj. : the facts that the allottee had not paid rent previously to the appellants, took various steps to delay the execution of the decree for ejectment and applied to the accommodation controller for allotment to himself on the day following the ejectment, do not, in law, make the requisition order mala fide, when the order was not made on account of any animus against the appellants or for a purpose for which requisition could not be made. [339 f-h] requisitioning of premises for allotment to a person who is homeless is requisitioning for a public purpose. the allotment to a person who was a tenant of the premises and who remiss in his duties as a tenant and had been evicted in execution of a decree of a court, in pursuance of the practice that the first informant of the existence of a "suppressed vacancy" would be allotted the premises, is not against law. moreover, the conditions of allotment of the requisitioned premises ensure that the landlord would not be put to any further trouble so far as the collection of rent is concerned. [339 h; 340 b-d] the first part of s. 13 (1) (g) of the rent act refers to persons who receive or are entitled to receive rents on their own account and not to persons who receive or are entitled to receive 'rents as a trustee. such a trustee- landlord can require the premises under the section for occupation for purposes of the trust, but since the suit was uncontested, no occasion arose in the ejectment suit for the court to determine whether reasonable accommodation was available for the tenant and whether greater hardship would be caused to the landlord if no ejectment was ordered. if the government happens to requisition the premises for the person who had been evicted therefrom in execution of a decree of a civil court, it does not mean that the government is not respecting the decree of the court and is acting against public interest or against the interests of administration of justice. [341 a-c; 343 b-c] there is no conflict between the provisions of s. 6 of the requisition act and the provisions of ss. 13 and 17 of the rent act and the requisition was valid. [342 c] under s. 17(1) of the rent act, the court may order the landlord to reallot the premises to the tenant who had been evicted in case the landlord does not occupy the premises within a period of one month, or, if the landlord reallots the premises to another person within a year of the eviction. since the requisition act provides by s. 6, that the landlord cannot occupy the premises which had become vacant on the eviction of the tenant within a month of the receipt of the intimation of vacancy by the state government, the court will not exercise its discretionary power of reallotment to the tenant when another enactment by its language provides for the landlord's non-occupation. under s. 17(2), a landlord is liable to conviction if he keeps the premises unoccupied without reasonable cause or if he fails to comply with the order passed under s. 17(1). the non-occupation of the premises within one month of the ejection of the tenant, when s. 6(1) of the requisition act applies to the premises, will be non-occupation for a reasonable cause and therefore, there can be no, occasion for a conviction on the ground that the premises were kept unoccupied. [341 f-g, h; 342 a-b] further, the requisition act was enacted later than the rent act and since no exception from requisition with respect to premises becoming vacant on the eviction of a tenant on the ground of bona fide requirement by the landlord had been made, the requisition act would apply to such premises also. [342 c-e] the fields of operation of the two acts are different. under the rent act, the civil court in deciding a suit for eviction, simply takes into consideration the needs of the landlord vis-a-vis the tenant and the grounds of eviction. under the requisition act, the state government, when considering the question of requisitioning the premises does not consider such matters but considers only whether the purpose for which it is to requisition is a public purpose or not. to hold that the benefit of the act cannot be given to persons evicted on the ground that the landlord required the premises for his own use would not only deprive the evicted person from getting the premises allotted to himself but would also deprive many other homeless persons besides some special class of persons, allotments to whom would clearly come within public purpose. [342 f, g, h; 343 c-d] it is not open 'to the appellants to urge that the premises did not become vacant or were not vacant when the requisition order was passed, because, a declaration was made in the requisition order that the premises were vacant and such a declaration operates as conclusive evidence of the premises being vacant. [339 a-b] the fact that the allottee was not made a party to the proceedings, is also fatal to the maintainability of the writ petition. [343 f] per sarkar, j. (dissenting) : the orders of requisition and allotment passed in this case were not within the contemplation of the act. in the circumstances of the case it has to 'be held that the ejectment decree was passed on the ground mentioned in s. 13(1)(g) of the act of 1947, that is to say, the court ordering ejectment found that the appellants required the room for their own occupation and they were entititled to it in preference to the defendants p and k. the result of the orders under the act of 1948 was to annul the decision of the court granting the ejectment. it cannot be said that the powers under the act of 1948 were intended to be exercised to set at naught the judgment of a court. [329 a-b, d] if the powers to requisition and allot under the act of 1948 could be exercised in a case where an ejectment decree had been passed under s. 13(1)(g) of the act of 1947, a conflict would arise between s. 17 of the act of 1947 and s. 6 of the act of 1948. this conflict has to be harmonised and the only way to do so is to say that the requisition act does, not apply to, a case where the landlord has been permitted to recover possession for his own occupation. [330 h; 331 a-b] the act of 1948 does not contemplate a requisition in vacuo; there must be a prospective or actually homeless person in view before an order requisition can be passed. [331 h] the act of 1948 does not give larger powers of requisition where the landlord has failed to give notice of a vacancy as required by s. 6 of that act. [332 d-e] - if a state acts in breach of the condition imposed by' the president while entrusting power under article 258, it is open to the president to revoke the permission or to take such further or other action as may be constitutionally permissible but it cannot possibly enable the government of the other state to do a thing about it except to complain, perhaps, to the union government.orderwhereas the government of maharashtra propose to organise a state lottery; and whereas the central government has no objection to it; now, therefore, the president is pleased to permit the government of maharashtra to conduct a state lottery, subject to the condition that the tickets of the lottery shall not be sold in another state without the permission of the government of that state.the president is further pleased to entrust to the government of maharashtra under clause (1) of article 258 of the constitution the executive power of the union in respect of lotteries organised by that government.sd/- (d.d. joshi) deputy secretary to the government of india.10. it was after this entrustment of executive power of the union to the government of maharashtra 'in respect of lotteries organised by that government' that the government of maharashtra proceeded to issue the press release and thereafter the individual communications, earlier referred to, making it known that the sale of lottery tickets of other states was banned in the state of maharashtra.11. the source of power for the ban is claimed to be the entrustment of power by the president under article 258(1) of the constitution. but the terms of the entrustment do not justify the claim. the entrustment of power, as is seen, is only 'in respect of lotteries organised by that government'. the expression 'that government' in the context of the entrustment of power to the government of maharashtra can only mean the government of maharashtra and no other. nor can it ever be that such executive power as the union government may possess in respect of the trading, business or, for that matter, any other activity of the government of one state may be entrusted to the government of another state. that would be destructive of the very scheme and structure of our constitution. the government of maharashtra cannot therefore purport to ban the sale of lottery tickets of other states by virtue of the entrustment of power under article 258(1) of the constitution.12. it is then said that the permission granted to each state to conduct its lotteries is expressly subject to the condition that the tickets of the lottery shall not be sold in another state without the permission of the government of that state. we have already pointed out that article 298 of the constitution extends the executive power of every state to the carrying on of any trade or business even if such trade or business is one with respect of which parliament alone has the exclusive power to make laws, subject to the stipulation that such executive power of the state shall be subject to parliamentary legislation. it is true that in view of entry 40 of list i of the viith schedule to the constitution parliament has exclusive power to make laws with respect to 'lotteries organised by the government of india or the government of a state', that article 73 of the constitution extends the executive power of of the union to the matters with respect to which parliament has power to make laws and, therefore, the executive power of the union must extends to the subject 'lotteries organised by the government of india or the government of a state'. but the executive power of the union, by the very opening words of article 73, is 'subject to the provisions of this constitution'. it follows that the executive power of the union with respect to lotteries organised by the government of a state has necessarily to be exercised subject to the provisions of the constitution, including article 298, which expressly extends the executive power of the state to the carrying on of any trade or business subject only to legislation by parliament if the trade or business is not one with respect to which the state legislature may make laws. it is to be noted that article 298 does not open with the words 'subject to the provisions of the constitution', as does article 73. reading and considering articles 73 and 298 together, as they should indeed be read and considered, it is clear that the executive power of a state in the matter of carrying on any trade or business with respect to which the state legislature may not make laws is subject to legislation by parliament but is not subject to the executive power of the union. that is why we mentioned earlier that the government of a state is not required to obtain the permission of the union government in order to organise its lotteries, in the absence of parliamentary legislation. even assuming that such permission is necessary, we do not see how a condition imposed by such permission that lottery tickets of one state may not be sold in another state may be enforced by the other state. the other state has no power to make laws in regard to the lotteries by the first state. its executive power, by virtue of article 298, extends to lotteries organised by itself but not to lotteries organised by the other state. if a state acts in breach of the condition imposed by' the president while entrusting power under article 258, it is open to the president to revoke the permission or to take such further or other action as may be constitutionally permissible but it cannot possibly enable the government of the other state to do a thing about it except to complain, perhaps, to the union government. the government of india is quite obviously alive to the position that there is no way of enforcing the stipulation that lottery tickets of one state shall not be sold in another except by parliament making a law in that behalf. the awareness is revealed by the last sentence in the letter dated july 1, 1968 which says,i am to add that in order to achieve this object an amendment of section 294-a ipc is being undertaken to make sale of tickets, without the consent of the state government concerned, a penal offence.the proposed amendment is yet to see the light of day.13. a submission which appears to have found favour with the high court of bombay in kamal agency v. state : air 1971 332 and the high court of madras in h.g. jain v. state of tamil nadu air 1973 mad 402 was that in entry 40 of list i and the respective local acts, a lottery organised by a state must be construed to refer to a lottery lawfully organised by a state and that if a lottery is not lawfully organised by a state it would not fall within entry 40 of list i but would fall under the head 'gambling' under. entry 34 of list ii and the state legislature would then be empowered to legislate in respect of the same. where the state legislature could thus legislate, it was said, the state government could take executive action in respect of lotteries organised by another state if they were unlawful. the gujarat and andhra pradesh high courts have dissented from this view. in special civil application no. 1309 of 1970 bhagwati, c.j. presiding over a division bench of the gujarat high court and in l.b. paradise lottery center v. state : air1975ap50 one of us silting singly in the andhra pradesh high court have explained that there is no justification for first reading the word 'lawfully' into entry 40 of list i and then proceeding to interpret the expression 'lottery lawfully organised' as meaning a lottery organised persuant to the entrustment of executive power of the union under article 258 of the constitution. it was observed 'legislative power cannot be fed into entry 34, by feeding the word 'lawful' into entry 40 of list i and thus artificially restricting the scope of entry 40'. it was pointed out that if the government of a state organised a lottery without the entrustment of executive power as contemplated by article 258 or in disregard or defiance of any condition that may have been imposed while entrusting executive power under article 258 it would never be a matter for the legislature of one state to take upon itself the power to declare unlawful the lottery run by the government of another state; and even less so could the government of a state declare unlawful a lottery run by the government of another state and thereafter ban the sale of the tickets of the lotteries organised by that state, in the madras case it was also observed that the entrustment order carried with it all powers which the state government might take to realise the maximum collection. we cannot subscribe to this view. that would really amount to the entrustment of vital legislative powers to the state government which would be constitutionally impermissible. we do not think it necessary to refer in any further detail to the decisions of the gujarat, andhra pradesh, bombay and madras decisions except to say that we generally agree with the reasoning in the gujarat and andhra pradesh decisions and disagree with the reasoning in the bombay and madras decisions. in the result we allow the write petitions and direct the state of maharashtra to forbear from giving effect to the ban on the sale or distribution of tickets of lotteries organised by other states. there is no order regarding to costs.

Judgment:
ORDER

Whereas the Government of Maharashtra propose to organise a State lottery;

And whereas the Central Government has no objection to it;

Now, therefore, the President is pleased to permit the Government of Maharashtra to conduct a State lottery, subject to the condition that the tickets of the lottery shall not be sold in another State without the permission of the Government of that State.

The President is further pleased to entrust to the Government of Maharashtra under Clause (1) of Article 258 of the Constitution the executive power of the Union in respect of lotteries organised by that Government.

Sd/-

(D.D. JOSHI)

Deputy Secretary to the Government of India.

10. It was after this entrustment of executive power of the Union to the Government of Maharashtra 'in respect of lotteries organised by that Government' that the Government of Maharashtra proceeded to issue the Press release and thereafter the individual communications, earlier referred to, making it known that the sale of lottery tickets of other States was banned in the State of Maharashtra.

11. The source of power for the ban is claimed to be the entrustment of power by the President under Article 258(1) of the Constitution. But the terms of the entrustment do not justify the claim. The entrustment of power, as is seen, is only 'in respect of lotteries organised by that Government'. The expression 'that Government' in the context of the entrustment of power to the Government of Maharashtra can only mean the Government of Maharashtra and no other. Nor can it ever be that such executive power as the Union Government may possess in respect of the trading, business or, for that matter, any other activity of the Government of one State may be entrusted to the Government of another State. That would be destructive of the very scheme and structure of our Constitution. The Government of Maharashtra cannot therefore purport to ban the sale of lottery tickets of other States by virtue of the entrustment of power under Article 258(1) of the Constitution.

12. It is then said that the permission granted to each State to conduct its lotteries is expressly subject to the condition that the tickets of the lottery shall not be sold in another State without the permission of the Government of that State. We have already pointed out that Article 298 of the Constitution extends the executive power of every State to the carrying on of any trade or business even if such trade or business is one with respect of which Parliament alone has the exclusive power to make laws, subject to the stipulation that such executive power of the State shall be subject to Parliamentary legislation. It is true that in view of Entry 40 of List I of the VIIth Schedule to the Constitution Parliament has exclusive power to make laws with respect to 'Lotteries organised by the Government of India or the Government of a State', that Article 73 of the Constitution extends the executive power of of the union to the matters with respect to which Parliament has power to make laws and, therefore, the executive power of the Union must extends to the subject 'Lotteries organised by the Government of India or the Government of a State'. But the executive power of the union, by the very opening words of Article 73, is 'subject to the provisions of this Constitution'. It follows that the executive power of the Union with respect to lotteries organised by the Government of a State has necessarily to be exercised subject to the provisions of the Constitution, including Article 298, which expressly extends the executive power of the State to the carrying on of any trade or business subject only to legislation by Parliament if the trade or business is not one with respect to which the State legislature may make laws. It is to be noted that Article 298 does not open with the words 'subject to the provisions of the Constitution', as does Article 73. Reading and considering Articles 73 and 298 together, as they should indeed be read and considered, it is clear that the executive power of a State in the matter of carrying on any trade or business with respect to which the State legislature may not make laws is subject to legislation by Parliament but is not subject to the executive power of the union. That is why we mentioned earlier that the Government of a State is not required to obtain the permission of the Union Government in order to organise its lotteries, in the absence of Parliamentary legislation. Even assuming that such permission is necessary, we do not see how a condition imposed by such permission that lottery tickets of one State may not be sold in another State may be enforced by the other State. The other State has no power to make laws in regard to the lotteries by the first State. Its executive power, by virtue of Article 298, extends to lotteries organised by itself but not to lotteries organised by the other State. If a State acts in breach of the condition imposed by' the President while entrusting power under Article 258, it is open to the President to revoke the permission or to take such further or other action as may be constitutionally permissible but it cannot possibly enable the Government of the other State to do a thing about it except to complain, perhaps, to the Union Government. The Government of India is quite obviously alive to the position that there is no way of enforcing the stipulation that lottery tickets of one State shall not be sold in another except by Parliament making a law in that behalf. The awareness is revealed by the last sentence in the letter dated July 1, 1968 which says,

I am to add that in order to achieve this object an amendment of Section 294-A IPC is being undertaken to make sale of tickets, without the consent of the State Government concerned, a penal offence.

The proposed amendment is yet to see the light of day.

13. A submission which appears to have found favour with the High Court of Bombay in Kamal Agency v. State : AIR 1971 332 and the High Court of Madras in H.G. Jain v. State of Tamil Nadu AIR 1973 Mad 402 was that in Entry 40 of List I and the respective local Acts, a lottery organised by a State must be construed to refer to a lottery lawfully organised by a State and that if a lottery is not lawfully organised by a State it would not fall within Entry 40 of List I but would fall under the head 'gambling' under. Entry 34 of List II and the State legislature would then be empowered to legislate in respect of the same. Where the State Legislature could thus legislate, it was said, the State Government could take executive action in respect of lotteries organised by another State if they were unlawful. The Gujarat and Andhra Pradesh High Courts have dissented from this view. In Special Civil Application No. 1309 of 1970 Bhagwati, C.J. presiding over a Division Bench of the Gujarat High Court and in L.B. Paradise Lottery center v. State : AIR1975AP50 one of us silting singly in the Andhra Pradesh High Court have explained that there is no justification for first reading the word 'lawfully' into Entry 40 of List I and then proceeding to interpret the expression 'Lottery lawfully organised' as meaning a lottery organised persuant to the entrustment of executive power of the Union under Article 258 of the Constitution. It was observed 'legislative power cannot be fed into Entry 34, by feeding the word 'lawful' into Entry 40 of List I and thus artificially restricting the scope of Entry 40'. It was pointed out that if the Government of a State organised a lottery without the entrustment of executive power as contemplated by Article 258 or in disregard or defiance of any condition that may have been imposed while entrusting executive power under Article 258 it would never be a matter for the legislature of one State to take upon itself the power to declare unlawful the lottery run by the Government of another State; and even less so could the Government of a State declare unlawful a lottery run by the Government of another State and thereafter ban the sale of the tickets of the lotteries organised by that State, In the Madras case it was also observed that the entrustment order carried with it all powers which the State Government might take to realise the maximum collection. We cannot subscribe to this view. That would really amount to the entrustment of vital legislative powers to the State Government which would be constitutionally impermissible. We do not think it necessary to refer in any further detail to the decisions of the Gujarat, Andhra Pradesh, Bombay and Madras decisions except to say that we generally agree with the reasoning in the Gujarat and Andhra Pradesh decisions and disagree with the reasoning in the Bombay and Madras decisions. In the result we allow the Write petitions and direct the State of Maharashtra to forbear from giving effect to the ban on the sale or distribution of tickets of lotteries organised by other States. There is no order regarding to costs.