(Delivered by Raghavan, J.)

1. This is a writ petition seeking to quash the order of the respondent in G.O.Ms 1800 Finance (Raffle) dated 23rd December, 1971. Prior to the impugned order, the Respondent passed G.O.Ms 1589, Finance (Raffle), d. 8th Novr. 1971 prohibiting the sale within the State of Tamilnadu of all Government raffle tickets of States other than those of the Government of Tamilnadu notwithstanding the reciprocal arrangements entered into between the Government of Tamilnadu with the other States. The impugned order prohibited, on and from 1st January 1972, the sale within the State of Tamilnadu of all Raffle tickets of the other States. The questions raised in the writ petition are whether the respondent, Tamilnadu Government, has power of authority to ban the sale in the Tamilnadu of tickets of State lotteries organised and conducted by the other States in the Union of India and whether the ban order is ultra vires.

2. The petitioner is carrying on business, in Madras, in the purchase and sale of raffle tickets of the various States in the Union of India, such as, Tamilnadu, Mysore, Kerala, Rajastan, Maharashtra, Punjab, Haryana, Delhi, Jammu and Kashmir, United Province, except the State of Gujarat and Andhra Pradesh. He is the agent for the sale of raffle tickets of the States of Tamilnadu, Punjab and Haryana, Rajasthan and Delhi. He is also the authorised sub-agent for the sale of raffle tickets of the State of Mysore. The petitioner's case is that those raffles are organised and conducted by the various States in the Union of India as a regular commercial activity with a profit motive in order to mobilise savings, to finance their various development programmes and projects, that the profits earned are meant to be utilised for welfare activities, that each State has a Director and regular staff to look after the said activity, that the State appoints sole selling agents and sub-agents on regular commercial basis, that the State of Tamilnadu has entered in reciprocal arrangements with other States in the Union of India under the terms of which consent is given for the sale of their tickets in the State of Tamilaadu and vice versa and that the respondent without terminating the reciprocal arrangements passed the order dated 8th November 1971, prohibiting the sale within the State of Tamilnadu of raffle tickets other than those of Tamilnadu with immediate effect, that the police in pursuance of the aforesaid order seized the raffle tickets of various other States from the petitioner and persons like him and the respondent also released a press note stating that the Government would enforce strictly the order dated 8th November 1971, prohibiting the sale of raffle tickets of other States. The petitioner thereupon filed W.P 3457 of 1971, seeking for the issue of writ of certiorari to quash the order of the Government dated 8th November 1971, referred to above. Along with the said writ petition the petitioner also filed W.M.P 5357 of 1971 for suspending the operation of the said order. The writ petition was admitted and interim suspension of the order of the Government was issued. At the time of the final hearing of the stay petition a later order of the Government in G.O.Ms 1657 dated 28th November 1971 was produced before this court to the effect that the ban order issued on 8th November 1971, shall not be in operation until further orders so far as the States with whom reciprocal arrangements have been entered into by the State of Tamilnadu. By reason of the said order of the Government dated 28th November 1971 the petitioner was able to sell the tickets of other States with whom the State of Tamilnadu had entered into reciprocal arrangements. But after terminating the reciprocal, agreements with the other States the Government of Tamilnadu issued the order dated 23rd December 1971 prohibiting the sale of other State raffle tickets in Tamilnadu with effect from 1st January 1972. The petitioner there upon filed W.M.P No. 6083 of 1971 in W.P 3457 of 1971 for the suspension of the operation of the order of the Government dated 23rd December 1971. This court passed an interim order dated 30th December 1971 suspending the operation of the Government order dated 23rd December 1971, which was confirmed at the final hearing. The petitioner has also filed W.P 54 of 1972 to quash the order of the Government in G.O.Ms 1860 dated 23rd December 1971, and the above petition in the first instance came up before Ramaprasada Rao, J. who considered that the same should be heard by a Division Bench in view of the importance of the question raised. The writ petition is now before us. It may be mentioned at the outset that W.P 3457 of 1971 was dismissed as having become infructuons, by reason of the filing of the present writ petition.

3. The main grounds of attack in the writ petition areas follows:— (1) The respondent is not competent to pass the impugned order and the same is ultra vires the powers of the respondent, as it relates to entry 40 of list I of the VII schedule being lotteries organised by the Government of India or the Government of a State which are exclusively within the legislative competence of the Union Parliament and no law relating to the subject has been made by the parliament; (2) The entrustment order made by the President under Art. 258 (1) of the Constitution conferring power on the Tamilnadu Government in regard to the conduct of State Lotteries does not authorise the State Government to issue ban orders prohibiting the sale of raffle tickets of other States within the territory of the State of Tamilnadu; (3) The petitioner is carrying on the business of purchase and sale of tickets for lotteries conducted by the various State Government and the ban order issuedly the State of Tamilnadu infringes his right to carry on his trade or business and that the ban order is nothing more than an executive fiat, which is not covered by the entrustment order; (4) Sec. 294-A of the I.P.C specifically exempts a State lottery from it purview and that carrying on such activity viz, sale and purchase of State lottery tickets is not an unlawful or an unanthoriued activity; (5) The impugned Government order amounts to an unreasonable restriction on the petitioner's right to carry on his business guarantee under Art. 19(1) (g) of the Constitution; and (6) It is only the Central Government that can legislate on matters regarding lotteries organised by the Government of India or the Government of a State and the State has no competence to legislate on this subject or pass orders in respect of which they have no legislative competence.

4. The respondent filed a counter affidavit. While admitting existence of reciprocal arrangements between the Tamil Nadu Government and the various States as mentioned in the petitioner's affidavit, the contitions put forward are as follows; (1) The various States carrying in raffles have not by themselves come to this court challenging the impugned Government order and consequently their agent, the petitioner, cannot maintain the petition. Further he has no legally protected right entitling him to carry on the business of selling lottery tickets of other States in the State of Tamilnadu. (2) Lotteries are perse gambling and it is open to the State Government to restrict or ban the sale of lottery tickets of other States within the State of Tamilnadu and that the petitioner cannot claim a vested right to carry on the sale of their lottery tickets in the. State of Tamilnadu; (3) The contention of the petitioner based upon Art. 258 (1) of the Constitution is not correct and by reason of the entrustment order the Government of Tamilnadu has ample powers to run raffles efficiently and to the maximum advantage and when their sales are affected, it is open to them to safeguard their interest by banning the sale of lottery tickets of other States in this State; (4) The petitioner cannot complain that his right to trade or carry on his business is in any way curtailed nor is his fundamental right under Art. 19 (1) (g) of the Constitution infringed.

5. The petitioner filed a reply affidavit contending that a lottery does not amount to gambling; that the two concepts are wholly different and that even on the assumption that lotteries amount to gambling the respondent is not entitled to ban the sale of lottery tickets of other States on the ground that the lottery is gambling, while at the same time themselves running the lottery, that freedom of trade is violated, that the petitioner is not agitating the case of the other State Governments and that it is not clear under what source of power the respondent has acted in making the impugned order.

6. At the outset we may mention that lotteries have from ancient times been known as a form of gambling and has been looked upon with disfavour. It involves no skill or knowledge and depends only on chance. In India keeping lottery office is made an offence under the I.P.C the only exception being a lottery organised by the Central or the State Governments Before proceeding to deal with the relevant contentions put forward we shall briefly deal with the factual position leading to the passing of the impugned order.

7. In or about 1968 some of the State Governments were keen on running lotteries to tap resources from the country to finance their development plans, but they had not themselves the power to run lotteries without the specific authorisation from the Central Government. The relevant entry in the VII Schedule to the Constitution is entry 40, (List I) which runs as follows:—

“Lotteries organised by Government of India Of the Government of a State”,

We may also refer to Entry 54 of List II (State List) relating to betting and gambling. Though the above two entries overlap to some extent, in view of the specific entry relating to lotteries organised by the Government of India or the Government of a State (Entry 40 of List I), it is only the Union Parliament that has power to legislate on the said subject. Art. 246 of the Constitution confers on the Union Parliament exclusive powers to legislate in respect of an entry in List I and the power to legislate on lotteries organised by the Government of India or the Government of a State is the exclusive power of the Union Parliament. It is common ground that the Union Parliament has not legislated on the subject covered by Entry 40 of List I.

8. However, under Art. 298 of the Constitution the executive power of the Union and of each State shall extend to the carrying on of any trade or business. Art. 258(1) of the Constitute n empowers the President to entrust to the Government of a State or its officers functions in relation to any matter to which the Executive power of the Union extends. The various State Government who are competent to grant sanction for the conduct of lotteries organised by private individuals, organisations, institutions, etc., have no power themselves to run lotteries, they therefore applied to the Government of India seeking permission to run such lotteries. In that context the Government of of India examined the question of the conduct of lotteries by the various State Governments. By the letter dated 1st July 1958, the Ministry of Home Affairs, Government of India, communicated to the Chief Secretaries to the Government of various States which were intent on conducting lotteries as follows—

“The Constitutional position in this regard is that while State Governments are competent to grant sanction for the conduct of lotteries organised by private individuals, organisations, institutions etc., lotteries organised by State Governments, themselves are covered by item 40 of list I of the VII Scheduled to the Constitution of India. The executive power of the Union, therefore, extends to lotteries conducted by State Governments and that State Governments are not competent to conduct lotteries without the necessary authorisation of the Central Government.

2. As regards the question of authorising State to hold lotteries, the Central Government were, therefore, in principle opposed to the holding or authorisation of lotteries. However, some State Governments have represented that conduct of lotteries by them would help them to mobilise savings and to find funds for financing heir development plans. Considering all aspects of the matter, it has, now, been decided that the policy regarding authorising State Governments to conduct lotteries be liberalised, if the State Government considers such action desirable.

3. At the same time, it is also felt that suitable steps should be taken to safeguard the interests of such State Governments, who, as a matter of policy, do not desire to start State lotteries or permit sale of tickets of lotteries organised in the other States within their jurisdiction. In order to avoid objections from such States, it has been decided that the Central Government's permission for conducting State Lotteries is available on the condition that tickets of such a lottery will not be sold in another State without the express consent of the Stater Government concerned. I am to add that in order, to achieve this object an amendment of S. 294-A I.P.C, is being undertaken to make sale of tickets without the consent of the State Government concerned, a penal offence.

9. The President further entrusted the Government of Tamilnadu under Art. 258 (1) of the Constitution of India with the executive power of the Union in respect of lotteries organised by the State Government. The President permitted the Government of Tamilnadu to conduct State lotteries subject to the condition that the tickets of lottery shall not be sold in the other States without the permission of the Government of that State. There has been reciprocal agreements between the States of Tamilnadu and various other States in and by which tickets in respect of lotteries conducted by the Tamilnadu Government have been allowed to be sold in other States and the lottery tickets conducted by the other State were permitted to be sold within the State of Tamilnadu.

10. Similar entrustment orders were made by the President to some of the other States in the Union and in accordance with such orders all the States except Gujarat and Andhra Pradesh have been conducting lotteries. Each of such States conducting lotteries entered into reciprocal arrangements with one another and the lottery tickets of those States were allowed to be sold in the State of Tamilnadu. As already stated, the petitioner, who is carrying on business in Tamilnadu, claims to be the agent or sub-agent for sale of lottery tickets conducted by the other States as also that of Tamilnadu. By reason of the sale of tickets of other States in this State the income from the sale of Tamilnadu lottery tickets was seriously affected. It is presumably with a view to derive the maximum benefit from the sale of its lottery tickets, the Government of Tamilnadu has passed the impugned orders.

11. In G.O No. 1589 Finaace (Raffle) dated; 8th November 1971, the Government of Tamilnadu prohibited the sale within the Stats of Tamilnadu of all Government Raffle Tickets of other States within the State of Tamilnadu. The Government subsequently passed G.O.M.S 1657 Finance, dated 28th November 1971, that the an order issued on 8th November 1971 should not be operated until further orders so far as the State with whoa reciprocal arrangements had already been entered into. On 28th November 1971, the Government of Tamilnadu issued notices to the States with whom reciprocal arrangements were entered into and cancelling the permission granted to them for the sale of their raffle tickets in Tamilnadu with effect from 31st December 1971. Meanwhile, the impugned order was passed on 23rd December 1971 prohibiting the sale of Raffle tickets of other States within the State of Tamilnadu on and from 1st January 1972. The present writ petition is filed questioning the aforesaid order dated 23rd December 1971.

12. Mr. M.K Nambiar, the learned counsel for the petitioner, contends—(1) The running of lotteries by the State of Tamilnadu is not under the authority of any law enacted by the State and therefore the impugned orders being only executive orders ate ultra vires; (2) The lotteries run by the State being under the entrustment power conferred by the President under Art. 258 (1) of the Constitution of India the power to run the lotteries cannot extend to imposing a ban for the sale of the lottery tickets run by the other States, within the Union; (3) The Government of Tamilnadu while exercising the entrustment power under Art. 258 (1) of the Constitution of India cannot control the activities of citizens preventing them from selling tickets of other States within the State of Tamilnadu. In other words the impugned ban order passed by the Tamilnadu Government is outside the entrusment order: (4) The ban order imposes the restriction on the freedom of trade guarantee by Art. 301 of the Constitution of India; (5). In any event, the petitioners right to carry on business cannot be infringed in any manner except under the authority of law and not by executive orders issued by the Government.

13. We shall first deal with the above contentions raised by Mr. Nambiar. The language of Entry 40 of List I of the VII Schedule to the Constitution itself presupposes that a State has power to organise and conduct a lottery. A lottery organised by the State would, therefore, be lawful. Arts. 73 and 162 of the Constitution of India relate to the extent of the executive power of the Union and the State respectively. The executive, power of the Union and the State extends also to the carrying on the trade for business by them under Art. 298 of the Constitution of India. Admittedly there is no law enacted by the Parliament in regard to lotteries and the running of lotteries by the Government of various States can be only under Art. 258(1) of the Constitution of India. The order of the Government of India, Ministry of Home Affairs, New Delhi, dated 17th October, 1971, shows the entrustment by the President of the executive power of the Union in respect of the lotteries organised by the Tamilnadu Government. The said Order runs as follows:—

“Whereas the Government of Tamilnadu 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 Tamilnadu 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 Tamilnadu under Cl. (1) of Art. 258 of the Constitution the executive power of the Union in respect of lotteries organised by that Government.

Sd. P.A Khanna,

Dy. Secretary to the Government of India.

It is, therefore, clear that the Stale of Tamilnadu is now running the lotteries under the entrustment order made by the President.

14. Before considering the question whether the above entrustment order would authorise the State of Tamilnadu to issue the impugned order, we shall refer to the various decisions relied on by Mr. Nambiyar. The first decision referred to by the learned counsel is State of Bombay v. R.M.D Chamarnaugh wala(1) relating to the validity of the Bombay lotteries and prize Competitions Control and tax Act, (54 of 1948) as amended. S.R Das, C.J who traced the history of gambling from the earliest times observed that the law give of India looked upon gambling as a sinful and pernicious vice. At page 720, the learned Chief Justice observed as follows —

“We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot of chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living end drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to t he Status of trade, commerce or inter course and to be made the subject matter of a fundamental right guaranteed by Art. 19(1)(g).

Mr. Nambiyar then cited a few decisions in support of the proposition that the executive can only act in pursuance of the powers given to it by law and it cannot interfere with the liberty, property and rights of the subject except on the condition that it can support the legality of its action before the court. The first decision cited by the learned counsel is Bidi Supply Co. v. Union of India, where S.R Das, C.J referred to with approval the observations of the Privy council in Raghubayi Eleko v. Officer Administering the Govt., of Nilgiris,(2) which ran as follows—

“As said by Lord Atkin in 1931 P.C 251, the executive can only act in pursuance of the powers given to it and it cannot interfere with the liberty, property and rights of the subject except on the condition that it can support the legality of its action before the court.”

In State of Patiala and E.P States Union Patiala v. Mohinder Singh Natha Singh,(3) Bhandari, C.J, in dealing with the power of the State Government to dispossess a person lawfully in possession observed as follows:—

“It may be that the respondent had no legal right to stay on the land in question, but the general purpose of the law is that regardless of the actual condition of the title, to the right of possession of the property the party actually in peaceable and quiet possession shall not be turned out by strong hand, violence or terror.

Our attention has not been invited to any provision of law which empowers of a State Government by force or show of force to evict a person who is in actual possession of immoveable property. If the State Government were of the opinion that the State had the superior title or the better right to possession it was open to them to bring an appropriate action against him and to secure his eviction in accordance with the provisions of law. They had no power to take the law in their own hand and to order eviction of the petitioner even though this was done with the laudable object of settling some members of Scheduled Tribes.”

15. The next decision cited by the learned counsel is Bisham Das v. State of Punjab(4), dealing with the right of the Government to interfere with the fundamental right of a citizen to hold property by executive action without the authority of a specific rule of Law. The following passage at page 1574 of the judgment of S.K Das, J. who delivered the judgment on behalf of the court was referred to:

“The admitted position so far as the present proceeding is concerned is that the land belonged to the State; with the permission of the State Ramjidas, on behalf of the joint family firm of Faquir Chand Bhagwandas, built the dharmasala, temple and shops and managed the same during his lifetime. After his death the petitioners, other members of the joint family continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops, nor can it be held that the dharmasala, temple and shops belonged to the State irrespective of the question whether the trust created Was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat.”

The next decision referred to by the learned counsel is Agbar v. Metropolitan Public Commissioner(5) where Lord Denning, M.R observed at page 710 as follows:—

“It was not the private residence of a diplomatic agent, and did not come within Art. 30. But I would like to say that, even if it had been the private residence of a diplomatic agent, I am not at all satisfied that the Act of 1954 gives to the executive any right to evict a person in possession who claims as of right to be in occupation of the premises. It enables the police to defend the premises against intruders. But not to turn our people who are in possession and claim as of right to be there.

The plain fact here is that Mr. Aghar and the plaintiff claim as of right to be entitled to possession of the ground floor of this house. They occupied it on 4th February. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be they had no such right as they claimed. But, even so, the proper way to evict the plaintiff was by application to the courts of law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the Statute of Richard II (1) against forcible entry. This applies to the police as much as to any one else. It applies to the Government departments also. And to the Nigerian High Commission. If they are entitled to possession, they must regain it by due process of law. They must not take the law into their own hands. They must apply to the courts for possession and act only on the authority of the courts. An Englishman's house is his castle. So is the house of any one lawfully resident here. It is not to be invaded unless the law permits.”

16. Relying, on the aforesaid decisions Mr. Nambiyar contended that the impugned Government Order not being made under any law enacted by Parliament cannot deprive the petitioner of his right to carry on his business in the State of Tamilnadu. It is no doubt true that there is no law enacted regulating lotteries run by the Central or the State Governments and that the impugned Government orders have not been made thereunder; but that would not invalidate the impugned order made by the Government. On the other hand, the Government of Tamilnadu acting on the entrustment order dated 27th October 1971, has been empowered to do all acts in conducting the lotteries Ito their best advantage. If the Government considered that the exclusion of the sale of lottery tickets of other States in this State will be advantageous to them in the conduct of their lottery, it cannot be said that the Government has exceeded its powers if they imposed a ban acting in pursuance of the entrustment order. In imposing the ban the Government of Tamilnadu is seeking to get the maximum benefit by the sale of Tamilnadu raffle tickets within the State. If the tickets of the various other States are sold within the State of Tamilnadu, their income by the sale of their lottery tickets will be substantially affected. It is in that view that the ban order of the State has been made so that they can realise the maximum benefit be the sale of their tickets. We do not see how the ban order is inconsistent with the entrustment order. On the other hand, we are of opinion that the ban order is consistent with the object of the entrustment order. In our view, the entrustment order carries with it all powers which the State Government may take to realise the maximum collection. In that view we consider that the objection of the petitioner is without substance.

17. There is no fundamental right of the petitioner which has been infringed. The petitioner can still carry on his business within the State of Tamilnadu. His freedom to carry on his trade or business is not affected in any manner. We are also of opinion that the petitioner's freedom of trade conferred by Art. 301 has not been infringed in any manner. The persons affected are only the Governments of other States and they have not questioned the ban order. In this view, we are of opinion that the State of Tamilnadu has not acted in excess of their powers and so long as they acted within their powers under the entrustment order, the objections of the petitioner that they have been deprived of their right to carry on their business has be force.

18. The learned Government Pleader referred to the decision of the High Court of Maharashtra reported in Kamal Agency v. State of Maharashtra Mody Ag. C.J, delivering the judgment on behalf of the Bench observed as follows in paragraph 18 at page 336—

“It is, therefore, clear from the above provisions of the Constitution that no State Government can organise or conduct a lottery save and except according to the provisions of the law, if any, enacted by the Parliament or unless the functions or powers of the Government of India are entrusted to the State Government under and in accordance with the provisions of Art. 258(1) and only to the extent that the functions or powers are so entrusted. It follows, therefore, that as State lotteries are exclusively within the legislative competence of the Parliament and, therefore, in view of Art. 73, within the executive competence of the Government of India, no State Government can organise a a State lottery in the absence of such an entrustment under Art. 258 (1).”

The learned Government Pleaded referred to an unreported judgment of the Gujarat and Bombay High Courts respectively in Sri Sundravadan Chimanlal Thakkar v. State of Gujarat and Navinchandra Shah v. State of Maharashtra where a slightly different view was taken. It is unnecessary to deal with them at great length.

19. The learned Government Pleader further referred to the decision in Jayantilal Amratlal Sheodhan v. F.N Rana dealing with Art. 253(1) of the Constitution and the extent of powers of the President to delegate his functions. Therein a notification issued by the President under Art. 258(1) of the Constitution under the Bombay Reorganisation Act, came up for consideration. Shah, J. (as he then was) who delivered the majority judgment observed at page 658 as follows:

“The effect of Art. 2580) is merely to make a blanket provision enabling the President by notification to exercise the power which the Legislature could exercise by legislation, to entrust functions to the officers to be specified in that behalf by the conditions prescribed thereby. By the entrustment powers under the statute, the notification merely authorities the State or an officer of the State in the circumstances and within the limits prescribed to exercise the specified functions, Effect, of the Presidential notification is that wherever the expression ‘appropriate Government’ occurs in the Act in relation to provisions for acquisition of land for the purpose of the Union, the words appropriate Government or the Commissioner of the Division having territorial jurisdiction over the area in which the land is situate were deemed to be substituted. In other words, by the issue of the Presidential notification, the Land Acquisition Act must be deemed pro tanto amended. It would be difficult to regard such an amendment as not having the force of law.

Again at page 659 the learned Judge observed as follows:

“In our view the Edward Mills case strongly supports the conclusion that the notification issued by the President conferring authority upon the Commissioner to exercise the powers of the appropriate Government in the matter of land acquisition under the Land Acquisition Act has the force of law because even though issued by an executive authority, the courts are, if challenged, bound to recognise and give effect to the authority conferred by the notification. We see no distinction in principle between the notification which was issued by the Governor General in Edward Mills case and the notification with which we are dealing in this case. This is not to say that every order issued by an executive authority has the force of law. If the order is purely administrative or is not issued in exercise of any statutory authority it may not have the force of law. But where a general order is issued even by an executive authority Which confers power exercisable under a statute and which thereby in substance modified or adds to the statute such conferment of powers must be regarded as having the force of law.”

The above decisions referred to by the learned Government Pleader show the extent scope of the power delegated by the President under Art. 258(1) of the Constitution. Haying regard to the scopes of the delegated power, we are of opinion that the State Government was competent to make the impugned Government order.

20. There is thus no substance in any of the contentions put forward by the petitioner and the writ petition fails and is dismissed with costs. Counsel's fee Rs 250.

V.C.S