1. Since both these petitions have been filed under Article 226 of the Constitution of India in the nature of Public Interest Litigation for issuance of direction to the Union of India to enact laws prohibiting the sale of single digit lottery either "organised" by the Central Government or other State Governments, they are being disposed of by a common order.
In SB Civil Writ Petition No. 1018/1994, the petitioner-Girdhari Singh Bapna is a practicing Advocate in the Rajasthan High Court, Bench at Jaipur and in SB Civil Writ Petition No. 438/1995, the petitioner-Mahesh Jhalani is a social worker and journalist and is working in Sunday Mail, a national paper. Since the facts alleged by the petitioners in both the cases are more or less identical and brevity, it is not necessary to refer them in detail.
2. In the case of Girdhari Singh Bapna v. Union of India which is similar to the case of Mahesh Jhalani v. Union of India on 17-5-1995, the Union of India was granted one month time to file counter-affidavit, but the same was not filed. However, several opportunities were granted to Mr. Suresh Pareek, Senior Standing Counsel for Union of India to file counter-affidavit in the aforesaid cases, but till this date no counter-affidavit has been filed on behalf of the Union of India. I have no hesitation in saying that in spite of granting several opportunities to Mr. Suresh Pareek no steps were taken to file counter-affidavit. This is not one, but in most of the cases which are filed against Union of India in this Court remain uncontested. Mr. Suresh Pareek made a statement at the bar that after receiving copies of petitions from counsel for the petitioner he sent to the respective, departments with the request to file counter affidavit, but he does not receive any response from, the concerned department. In the absence of the counter-affidavit on behalf of the Union of India the counsel appearing for the Central Government find themselves utterly helpless in not contesting the case property. In such a situation, the Court has left with no other option except to decide the cases on facts which are uncontroverted by the counsel for the Union of India and in spite of the anxiety on the part of the Court that no ex parte interim orders should be passed the Court sometimes, feels helpless in such a situation and ex parte orders have to be passed.
3. From the facts stated in both the petitions, it appears that the petitioners have spoused the cause of general public and want ban to be imposed on the sale of single digit lottery conducted either by the Central Government, State of Rajasthan or other State Governments as well as private agencies within the territory of State of Rajasthan, as according to them the same is immoral and against public policy. It is also pertinent to mention that as far as single digit lottery conducted by the State of Rajasthan is concerned, the same has been banned w.e.f. 1-4-1995 and as such, no direction in this regard is necessary. There can be no doubt that single digit lottery has been banned by the State of Rajasthan in view of the public criticism under the pressure of the social organizations, journalists and media, but the sale of tickets of lotteries "organised" by other States is being continued in view of the law laid down by the Apex Court in the case of H. Anraj and Others Vs. State of Maharashtra, that a State Government is not competent to impose ban on the sell of tickets of lotteries "organised" by other States. It appears that sale Of tickets of lotteries conducted by the State of Assam, Manipur, Mizoram and Nagaland was continuing in the State of Rajasthan though the single digit lottery of the State of Rajasthan was banned. In view of the interim order dated 21-4-1994 passed by the Apex Court in the case of State of Haryana Vs. Suman Enterprises and Others, the applications were along with prescribed pro forma from the States stated above. After scrutiny of the agreements, Rules and other material placed by the aforesaid States, the State of Rajasthan by order dated 11-12-1995 imposed ban on the sale of tickets of lotteries alleged to be organised by the aforesaid States on the ground that the lotteries are not "organised" by them. Feeling aggrieved against the aforesaid order of the State of Rajasthan four petitions under Article 226 of the Constitution of India were filed by the respective States which have been dismissed today and the order dated 11-12-1995 passed by the State of Rajasthan imposing ban on the sale of tickets of lotteries of the aforesaid States has been maintained. But this is not the end of the matter inasmuch as, it is still open for the Central Government or other State Governments to sell their tickets of lotteries within the State of Rajasthan if they can satisfy that the lotteries conducted by them are "organised" by the State. It is well settled that the lotteries "organised" by the Union of India or State Governments are covered under Entry 40, List I, Schedule 7 of the Constitution of India as such, the ban on the sale of tickets of such lotteries can be imposed only by the Central Government and not by the State Government. The State Governments have been empowered to legislate under Entry 34, List II, Schedule Vll of the Constitution of India regarding "betting and gambling" but the lotteries "organised" by the Government of India or Government of State have been specially taken away from the said Entry "betting and gambling" therefore, the legal position is that it is the Parliament alone who can enact suitable law prohibiting the sale of tickets of lotteries "organised" by the Government of India or State Governments.
I have heard Mr. G. S. Bapna-petitioner in person, Mr. Ajeet Bhandari and Mr. P. C. Jain for the petitioners, Mr. Suresh Pareek, Sr. Standing Counsel for Union of India, Mr. B.P. Agrawal, Advocate General for State of Rajasthan and Mr. S. M. Ali for the Lottery Department. It has been urged on behalf of the petitioners that continuance of lotteries is a social evil. It is true that continuance of these lotteries is causing untold miseries and hardships not to hundreds but to thousands of families who have been ruined. The most affected persons of the social evil are the persons belonging to the middle income group who are spending major portion of their earning and salary in purchasing tickets of lotteries. The Government offices are deserted and employees are generally seen at lottery stalls at the time of drawing of lots. It is also not out of place to mention that many cases of suicide have also been reported in newspapers from time to time. The majority of State employees of middle income group have incurred heavy debts because of the social evil and even the school going children are spending the money in purchasing the tickets of lotteries which they get from their parents as pockets money. The purpose of conducting these lotteries by the State appears to be only for the purpose of raising funds for development purposes. However, I have no hesitation in saying that raising of funds by the State Government by conducting lotteries has proved counter-productive. The most disturbing feature is that on the one hand the most of the State Governments under the pressure of the social organisations, media and public criticism are banning their lotteries. For instance, Delhi, State of Rajasthan, Uttar Pradesh, Madhya Pradesh, Himachal Pradesh and probably few others have banned the sale of tickets of lotteries but they are conducting their lotteries in other States. Recently, in view of the raising public criticism and demand of banning of single digit lotteries, Government of Himachal Pradesh has withdrawn the sale of its single digit lotteries from the State of Himachal Pradesh w.e.f. 1-2-1996. Not only this, but a meeting of the lottery stockists of other States and State of Himachal Pradesh was convened on 30-1-1996 in Himachal Pradesh Secretariat Committee Room and with the mutual consent, it was decided that single digit lotteries "organised" by other States would not be marketed w.e.f. 1-2-1996 and in view of the said fact the Himachal Pradesh High Court has issued mandamus directing the State of Himachal Pradesh not to allow the sale of single digit lotteries organised by the State of Himachal Pradesh or any other State in the entire State of Himachal Pradesh. It is true that the aforesaid order has been passed with the mutual consent arrived at between the lottery stockists of other States and the State of Himachal Pradesh, but the message which goes to the society from the above order of the Himachal Pradesh High Court is that this is high time when the Central Government should realize the necessity of banning the sale of tickets of organised by the Central Government or other States. There is no dispute that for providing facilities like sanitation, health and other basic amenities, the State has to raise revenue but raising of revenue by conducting lotteries in the present society does not appeal to conscious. The Government may find out other avenues, for augmenting its revenue, but I am of the opinion that it is not desirable that the revenue should be raised by encouraging gambling and immorality in the society. It is the cry of ours that Central Government should consider the feasibility of encouraging a uniform law prohibiting the sale of tickets of lotteries within the country "organised" by the Central Government or other State Governments.
The learned counsel for the petitioners vehemently urged that mandamus should be issued to the Union of India to enact a law banning
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the sale of tickets of lotteries whether organised by the Central Government or by the State Government. It is well settled that a mandamus cannot be issued by this Court to the Union of India to legislate a particular Act. The Court is supposed only to interpret the law and not to issue directions for enactment of a particular law. The enactment of a law solely lies with the wisdom of the Central Government. In view of the facts and circumstances stated above, I am of the opinion that the Central Government should consider the feasibility of enacting a uniform law banning the sale of tickets of lotteries throughout the country whether it is "organised" by the Central Government or by the State Governments. The social organisations and the spirited persons like the petitioners may also request/send representation to the Central Government in this behalf. With the observations made above, both the petitions stand finally disposed of. Let a copy of this order be sent to the Cabinet Secretary, Central Government as well as Secretary, Ministry of Law.