Big Star G Services Pvt. Ltd. vs Bodoland Territorial Council, Kokrajhar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Gau) 792

IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, J.
M/s Big Star G Services Pvt. Ltd., a Company registered under the Companies Act, 1956 having its marketing office at B/201 City Point, J.B. Nagar, Andheri Kurla Road, Mumbai- 400059. Represented by its Director & Financial Controller, Sri Usman Basha - Appellants
Vs.
The Bodoland Territorial Council, Kokrajhar, Assam represented by its Secretary, Lotteries Department, Kokrajar, The Joint Secretary, Bodoland Territorial Council, Lotteries Department, Kokrajhar and CAIRS Computer Aided Information & Research Services Pvt. Ltd., having its Offices at LGF, D-36 NDSE-II, New Delhi - 110049 Represented by its Director Sri Sapu Bhattarcharya - Respondent
Writ Petition (C) 6462/2011
Decided On: 27.06.2012

Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Mr. I Choudhury, Mr. P.N. Goswami, Mr. N.J. Khataniar and Mr. Puhazh Gandhi, Advocates
For Respondents/Defendant:Ms M Bordoloi Standing Counsel, BTC, Mr. AK Bhattacharyya, Sr. Advocate, Mr. DK Bhattacharyya, Mr. A. Deka, Mr. T. Talukdar and Mr. AK Choudhury, Advocates

Headnote:
Assam State Lottery Rules, 1994 - Rule 5 - Lottery (Regulation) Act, 1998 - Contract Act, 1872 - Section 23 - Bodoland Online Lottery Rules, 2006. - writ petition under Article 226 of the Constitution of India is filed praying for setting aside and quashing the agreement executed by the Joint Secretary, Bodoland Territorial Council (BTC), i.e. respondent No. 2 with the respondent No. 3 and for restraining the respondent No. 3 and its agents from organizing and conducting lottery business in pursuance of the agreement with a further prayer for a direction to the BTC authorities to allow the petitioner to operate as a sole distributor of lotteries of BTC in terms of the agreement -, as emerged from the pleadings of the writ petition and the documents, are that the BTC issued a notice in a National English daily newspaper inviting individuals and companies to participate in a bid process for holding of Online lottery of BTC and the petitioner, namely, M/S Big Star (G) Services Pvt. Ltd., a company registered under the Companies Act, 1956 and one Gi Terminal i-Tech Private Limited, in order to participate in the bid, formed a consortium by an agreement and participated in the said bid process along with some other bidders – Held, agreement, the object or consideration of which involves or implies injury to a person and property of another, is unlawful and every agreement, the object or consideration of which is unlawful, is void. It is seen that no order has been issued to the respondent No. 3 appointing him as the distributor and based on the approval granted, the agreement was executed by the BTC authorities with the respondent No. 3. - Agreement is unlawful and therefore, this Court is unable to accept the contention agreement is not liable to be interfered with. In Limras Lotteries (supra), also, the order of the learned Single Judge was not set aside on the ground that the learned Single Judge had no jurisdiction to set aside the agreement entered into between the State respondents and the appellant in that case - No challenge to the order by which the respondents had taken the decision to postpone the lottery operation. However, a prayer has been made for a direction to the BTC authorities to allow the petitioner to operate as the sole distributor of lotteries of the BTC in terms of the agreement In absence of any challenge to the order, no directions are called for in this regard, as prayed for by the petitioner. in view of the discussions aforesaid, agreement between BTC and the respondent No.3 is set aside - Writ petition is allowed

JUDGMENT

Hon'ble Mr. Justice A.K. Goswami

1. This writ petition under Article 226 of the Constitution of India is filed praying for setting aside and quashing the agreement dated 13.6.2011 executed by the Joint Secretary, Bodoland Territorial Council (BTC), i.e. respondent No. 2 with the respondent No. 3 and for restraining the respondent No. 3 and its agents from organizing and conducting lottery business in pursuance of the agreement dated 13.6.2011 with a further prayer for a direction to the BTC authorities to allow the petitioner to operate as a sole distributor of lotteries of BTC in terms of the agreement dated 30.9.2009. The facts, as emerged from the pleadings of the writ petition and the documents, are that the BTC issued a notice on 21.6.2009 in a National English daily newspaper inviting individuals and companies to participate in a bid process for holding of Online lottery of BTC and the petitioner, namely, M/S Big Star (G) Services Pvt. Ltd., a company registered under the Companies Act, 1956 and one Gi Terminal i-Tech Private Limited, in order to participate in the bid, formed a consortium by an agreement dated 6.4.2009 and participated in the said bid process along with some other bidders. The bid of the consortium formed by the petitioner and Gi Terminal i-Tech Private Limited, having been found to be most responsive, a decision was taken by the authorities of BTC to accept the bid of the petitioner's consortium and a communication was issued on 11.8.2009 in this respect. By the letter dated 11.8.2009, the petitioner was directed to submit financial bid on the holding of Online lotteries. Consequent thereto, rate was offered by the petitioner and the same was accepted by the communication dated 1.9.2009. An agreement for appointment as sole distributor was executed on 30.9.2009 between the BTC and the consortium, describing the present petitioner as "The Lead Member of the Consortium (LM)", and appointing the consortium as the sole and exclusive distributor for a period of five years. The petitioner had deposited Rs. 10 lakhs as per Clause X of the agreement for Paper Lottery and Rs. 15 lakhs for Online Lottery and other games of chance. While the petitioner was conducting the lottery business as the sole distributor by making huge financial investments, the respondent authorities by executing an agreement on 13.6.2011 with the respondent No. 3, appointed the respondent No. 3 as the "Sole selling/buying agent of lotteries (Distributor)" for a term of 10 years, without issuing any notice inviting tenders and without registering the said agreement. It is pleaded that the petitioner came to learn about the said agreement in the second week of December, 2011. It has been asserted in the writ petition that the appointment of the petitioner as the sole distributor as well as the agreement dated 30.9.2009 have not been terminated and even after execution of the agreement with the respondent No. 3, by letter dated 26.8.2011, the respondent No. 2 had conveyed approval of additional cards jokes cards scheme from 6 numbers of draws to 12 numbers of draws. As the respondent No. 3 had contemplated initiation of its operation as the sole distributor of lotteries of BTC, the same prompted filing of the instant writ petition.

2. The respondent Nos. 1 and 2 had filed three affidavits- one affidavit-in-opposition on 9.1.2012 and an additional affidavit on 4.2.2012. One more additional affidavit was filed on 27.03.2012.

3. In the affidavit filed on 9.1.2012, it is pleaded that as per Rule 5 of the Assam State Lottery Rules, 1994, for short, the Rules of 1994, it was permissible to appoint a second distributor and such second distributor was appointed to maximize the revenue collection for development of infrastructure within the BTC area. It has also been stated that though the distributor ought to have conducted 24 numbers of sole and exclusive draws per day, the petitioner was conducting only six numbers of draws per day resulting

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