JUDGMENT 1. All "Fumes and fire" about Lottery, alleged Fraud by State even in alleged gambling is the pivot of this legal debate, which was held more on 'Moral' plank than `legal' one. Throughout the arguments Mr. Dave and Mr.Jain counsel for the appellant spearheaded these submissions on the bedrock of Morality, Ethics and tried to impeach the Lottery Department for being amoral, unethical and fraudulent in the madrace of augmenting revenue by questionable methods. Protective umbrella of Constitutional sanction of entry 40, List I, Schedule 7, and Presidential authorisation was effectively and successfully spread by Dr. Tewari, Advocate General assisted by Mr. B.P. Gupta, Additional Advocate General, who was too brief, but all relevant. 2. Dr. Tewari had an interesting dig at the appellant when he quibbled "Devil quoting Scriptures". A lottery ticket holder challenging the lottery as amoral and praying for more chances to become multi millionaire and yet calling it immoral. It is not paradox asked the learned Advocate General. Under Indian Socialist Constitution, this is the billion dollar question incidentally debated in this lottery litigation. Morality and law, the two postulates of this controversy cannot detain me long as ultimately I am under fetters of law only, and morality is laudable ideal only, as correctly printed out by Dr. Tewari. 3. This mad race and craze for augmenting revenue by all and sundry methods is not of recent origin nor it is limited to any country or idealogy or party. Crossing party or State barriers, it has travelled all ages and States. Even Chandra Gupta, founder of the Maurya Dynasty could not resist this temptation. His superintendent of prostitution regulated the flesh trade by regulating prices and appropriated a designated portion to the kings treasury. Sethi and Sainis in their treatise, while discussing legalised gambling, quotes from Durant. will: The story of civilization, our Oriental Heritage. Simon and Schuster, 1935 page 44 and Williams, Francis Emmet. A.P.M. victory in Michigen, and observed as under; (Law Relating to Gambling, Betting, Lotteries & Clubs--Simon and Schuster, 1935 page 444.) "History completely contradicts the validity of this line of reasoning. Several centuries before the Christian era, kings some times legalised gambling with a portion of the proceeds going into their treasuries. During the reign of Chandra Gupta from 132-296 B.C., this founder of the Mauryan Dynasty and ruler of India, had a department in his Government that controlled gambling. Several centuries before the Christian era, kings some times legalised gambling with a portion of the proceeds going into their treasuries. During the reign of Chandra Gupta from 132-296 B.C., this founder of the Mauryan Dynasty and ruler of India, had a department in his Government that controlled gambling. The Superintendent of Public Games was the overseer of all gambling-houses. He supplied dice for a fee. The gaming houses were required to pay into the treasury 5 per cent of their receipts and the Superintendent of Public Gaines made certain that the Government received its just share. It is interesting to observe that the Government of Chandra Gupta also maintained a department headed by the Superintendent of Prostitution which regilated the prices and appropriated a designated portion of the earnings of the prostitutes for the king's treasury. While the practice of legalising gambling dates back to ancient times, laws prohibiting this form of activity certainly were not invented by the Puritans. Mass gambling has always resulted in great social and Law Relating to Gambling, Betting, Lotteries and Clubs, economic ills. And almost every civilised nation in the world has from time to time found it necessary to resort to anti-gambling legislation to protect its citizens. The Egyptians, Greeks, Romans and Hindus of ancient times invoked laws with severe penalties against gambling. The Rabbis of the Second Temple classed gambling as a form of robbery and barred gamblers from the witness stand.'' 4. The vice of gambling in any form has been universally condemned during all ages. The climax of its evil effects was high-lightened by the 'Mahabharata' which was a war between Kaurvas and Pandawas on account of disgrace done to Droppadi, the wife of Pandawas lost to Kaurvas in gambling. 5. In Manu's injunction, there is a clear mandate and directions to the King that all types of gambling activities should be banned and kept away from the State, because they ultimately result in end of the Kingdom and their Empire. 5. In Manu's injunction, there is a clear mandate and directions to the King that all types of gambling activities should be banned and kept away from the State, because they ultimately result in end of the Kingdom and their Empire. The injunction finds place in the following Sanskrit verse of Manu Smriti:- Mahrishi Manu opined that those, who indulge in gambling, prostitution, crimes and liquor selling or drinking should be externed from the State by the:- HINDI MATTER 373365A According to Manu's injunction even if one indulges in gambling only for pleasure, that also is liable to be punished by the King:- HINDI MATTER 373365B In Rigveda, there is a clear mandate that gambling is the worst part of evils and one should not indulge in it : HINDI MATTER 373365C Again in Rigveda, it has been preached that one should not indulge in gambling. He should do cultivation and agriculture and be contented with money, which he receives, worship the cows, take care of the wife, never indulge in indebtedness:- HINDI MATTER 373365D The great saint and philospher and one of the Architects of Hindu jurisprudence, Yagyavalkya has also condemned gambling and opined in similar terms as mentioned about as would be evident from the following Sanskrit verse of Yagyavalkya Smriti:- HINDI MATTER 373365E Virihaspati in Chapter XXVI Verse 199 recognised that gambling has been totally prohibited by Manu. According to Hamiltion, gambling is prohibited by Koran. Hymn of Rigveda highlightens the demerits of gambling-See Verse 7, 10 and 13. Manu condemns it in verse 221. 224, 225, 226, 227 and 228. 6. Virgil W. Keterson in his treatise. "gambling should it be legalised ?" has taken note of lottery in Italy and observed:- "Many years ago one of the greatest criminologists of all time. Gustav Aschafenburg, expressed concern over gambling as a source of crime. Referring to the growth of the lottery in Italy he said: "The feverish excitement with which in Italy everyone waits for the numbers to be drawn each week, is a very grave sign in the eyes of the sociologist, and if he observes the figures of those who venture their last few coins on this hazard, he will not underestimate the temptation to dishonesty. "Referring to gambling generally and to the book-maker in particular, as a source of crime, Aschaffenburg stated." For a number of years the tendency to gamble, and the deceptive hop: of winning great gains easily, have been increasing to an undesirable extent............Inspite of all offorts it has not been possible, up to now, to prevent the activity of the book-makers, and the money of the poor and youthful will continue to find its way to them. I cannot help fearing that this opens up a new and plenteous source of crime with which we shall have to reckon in the future." 7. The alleged State Gambling under the name and pretext of lotteries more precisely the `Dhan Teras Bumper Draw Lotteries' covered by the scheme of 80th draw of Rajasthan State Lotteries has thus come into heavy fire and bumper shelling in this litigation. 8. A ticket-holder of this lottery draw attracted by the advertisement issued in various news papers of India in September, 1981 under the caption, "Ek Ticket Per Apko Puraskar Jeetne Ke Liye Nau Avsar" feeling aggrieved by the Lottery Department failure to permit him to try his luck in all the eight mini draws has filed a civil suit. The precise prayer in the civil suit is to direct the respondents to have all the eight draws in such a manner that his ticket is included every time in every draw in consonance with the advertisement which led him to purchase the ticket. 9. The respondents who are defendants in the suit challenged the above right of the plaintiff on the ground that according to the scheme, one ticket holder can get only two chances in two draws, one Mini Draw and one Main Draw, though in every draw there are number of prizes. 10. The plaintiff appellant applied for injunction in the lower court and prayed that the defendants be directed to conduct all the mini draws after inclusion of the plaintiff's ticket in consonance with the advertisement which attracted him to purchase the ticket, but this application for injunction has been rejected. The above in nut shell are the facts giving rise to this appeal. 11. The above in nut shell are the facts giving rise to this appeal. 11. In this appeal, the submissions and arguments advanced by the learned counsel for the appellant and the respondents have covered a wide canvass commencing from the illegality and unconstitutionality of the lottery system itself and covering the wide range of the constitutional powers of the State and the Centre in respect of legislation for lottery and betting and gambling as contained in entry 34 of list 2 and entry No. 40 of list 1 of the Constitution. The presidential authorisation by the Central Government was pressed into service by the respondents to prove their credentials and show the foundation of the State's legal right. 12. D. ring the course of arguments, various decisions of the High Courts and the Supreme Court commencing from (I) State of Bombay V. R. M. D. Chamarbaugwalia and others, AIR 1956 Bom. 1 , (2) Lachmandas Balachand, Paradise Lottery Centre, 124, Park Lane Secunderabad and others V. The State of Andhra Pradesh and others, AIR 1975 AP 50 were referred. The important decisions of (3) State of Bombay V. R. M. D. Chamarbaugwala and another AIR 1957 SC 699 , (4) Ms. Kamal Agency and others V. The State of Maharashtra, AIR 1971 Bom. 332 and Lachmandas Balchand's case (supra) were referred both extensively and intensively. 13. At one stage, it was pointed out that lottery is gambling and for augmenting the revenue of the State it does not behave well for a welfare State to enter into gambling itself and thus not only abate but act in immoral ways. In Kamal Agency V. State (Supra) their lordships of the Bombay High Court observed that lottery is gambling. While doing so, they accepted the submission of Mr. Shitalvad, who argued that the lottery is per se gambling and is not trade or business or commerce. Their lordships observed as under:- "Lottery depends purely on chance and involves no skill or knowledge. It is, therefore, gambling." It is not for this Court to eater into the arena of controversy about the morality of the Stale act of gambling and encouragement to people in developing gambling habits, because the Parliament in its wisdom provided by entry No. 40 of List-1 that legislation can be made for lotteries organised by Government of India or Government of the State. Entry No. 34 of list-2 provides the legislative authority for making legislation for betting and gambling. The Public Gambling Act being Act no. 3 of 1867 was enacted as early as in 1867 and subsequently the States after independence adopted various gambling prohibition laws in different forms. The State of Rajasthan also enacted the Rajasthan Public Gambling Ordinance, 1949 for prohibition and punishment of public gambling. However, while enacting this Ordinance by Section 2(2) lottery was excluded from the definition of gambling. 14. From earlier times though gambling was prevalent in different forms, it was always an object of criticism by moralists. Arthor Twining Hadley, the former President, said. The more enlightened the community, the more tested is the moral approval and the more precedent are the attempts for legal prohibition of lotteries policy shops and book making establishments." 15. Even outstanding labour leaders, such as Walter P. Reuther President of Auto Workers Union fought against commercialist gambling because of the field efforts of the labour movement. The reason was to the event the labourers to lose money in gambling and their living standards are lowered. One of the labour leaders Ranse Mehold the former Prime Minister of Gr. at Britain stated. "To hope for instance that a labour party may be built up the- population carrying from indulgence of games of allard is folly." Mr. Burgil W. P. Son in his treatise on gambling under the caption "should it be legalised" said that there is no place for legalised gambling in an enlightened society. True it is that in many western countries and so also in India, gambling in some forms like the one of lottery by State has been legalised but in the craze for augmenting revenue history clearly reflects and witnesses that it has not eliminated any abuses. Like America, in India also it has greatly increased economic, social and political evil and yet it exists because of the legal sanctions. It is surprising enough that private gambling in the form of gaming at public places under different names and nick names like Guba, Matka, Jua have been prohibited and rightly so by the State, but hardly there is any public place in India where one would not come across a hawker crying on the house tops that by purchasing of one ticket, one can become multi-millionaire over night. 16. 16. When lacs of people and this number goes into crores counting the tickets purchased in the year or in the country as a whole, lose their money, a few get some prizes and the State exchequer gets a very meagre amount of it after heavy expenditure on the advertisement, staff, payments to commission agents and agents etc. Be that as it may, it is primarily for the legislators to consider whether a welfare State. committed to the goal of achieving socialism as per its preamble should encourage and not only encourage but it should itself indulge in public gambling as per the dictum of Bombay High Court to augment the revenue at the cost of decay in moral values and economic abuse and exploitation of common man. 17. With the above preamble, now let me come to the issues involved in the case in hand. Undoubtedly, the advertisement proclaims in very bold letters that one ticket holder would get nine chances. Since, in this 80th draw of Rajasthan Lotteries, there are eight mini draws and one principal final draw, 9 chances means normally that he would participate and try his luck every time the mini draw is held and also the final draw. But, it is not in dispute that the above is factually incorrect allurement advertisement, because all said and done a ticket holder of Rs. 5/- ticket would get only two chances, one in mini draw and one in final draw. 18. It is not very material whether this particular advertisement which has appeared in all important news papers of India, in all languages, can tentamount and can be termed as a fraud or not as alleged by Mr. Dave. The basic fact remains that it was incorrect and lacked exactitude to put it in a very modest language. The plaintiff-appellant being allured by this caption of advertisement purchased a ticket of Rs. 5/- and he purchased such 10 tickets under the promised expectation that he would get 90 chances and even if he gets the lottery once in one draw out of 90, he would become multimillionaire over night. But he was beldered to find that he would get only two chances, one mini draw and one final draw. 5/- and he purchased such 10 tickets under the promised expectation that he would get 90 chances and even if he gets the lottery once in one draw out of 90, he would become multimillionaire over night. But he was beldered to find that he would get only two chances, one mini draw and one final draw. The contention, therefore, is that, whether it is treated as a contract or a promissory estoppel, the defendants cannot be allowed to riggle out of this commitment in the for.n of an offer given by a i advertisement published by the valid authority, on the pretext that this advertisement was incorrect and the purchaser should have seen the conditions mentioned and printed on the back. 19. It would not be proper nor necessary to enter into a detailed discussion about the various omissions and commissions of the Lottery Department as alleged by Mr. Dave. To enumerate and simmarise them, firstly by an advertise neat on which the State Government spent 10 lacs of rupees, big headline captions providing allurements to the people to purchase one ticket and try his luck 9 tines was deliberately and purposely and to put in precise words fraudulenty inserted, which admittedly is false and incorrect. Secondly, the corrigendum issued added fuel to fire, because instead of correcting it by putting two chances instead of 9, the defendants made a mess of it by amending it to 27. It was then pointed out that in later advertisement the mini draw which has only one lac rupees first prise was shown to be of 55 lacs. Lastly, it was pointed out that the conditions of the scheme mentioned on the back of the ticket are contrary to the scheme of 80th draw published in the Rajasthan Gazette, Extra-Ordinary, on 1 8-9-81 as a posthumous publication, because the mini draw has already been made on 3-9-81. Mr. Dave also asserted that the condition of the publications in English language and that too in a type of such insignificant and small microscopic size which cannot be read normally, in English is not only against the Official Language Act but is a fraudulent attempt to keep the purchaser in dark about the real conditions. 20. All the above submissions were developed at great length during the arguments and Mr. Dave relied upon the decision reported in (5) M/s. Motilal Padampat Sugar Mills Co. 20. All the above submissions were developed at great length during the arguments and Mr. Dave relied upon the decision reported in (5) M/s. Motilal Padampat Sugar Mills Co. Ltd. V. the State of U. P. and others, AIR 1979 SC 621 wherein the doctrine of promissory estoppel being applicable to State also has been upheld and dealt with. 21. The learned Advocate General submitted that the doctrine of promissory estoppel cannot apply against the State for the unauthorised act of officers and he placed reliance upon the decision of (6) M/s. Jitram Shivkumar and others V. The State of Haryana and another AIR 1980 SC 1285 . Dr.Tewari submitted that it is true that the advertisement contains a mistake, in as much as, instead of two, nine chances have been mentioned in the caption, which is factually wrong. He also submitted that the conditions printed on the back of the tickets have got some discrepancy, which would be remedied by a corrigendum shortly, Dr. Tewari frankly submitted that the advertisement was approved by the Director as per the letter which is apparent from the draft of the advertisement annexed with the letter of the Director. But, his contention was that since Mr. Meena the Director of the Lotteries Department acted unauthorisedly in issuing such letter, the State is not bound by it. 22. Dr. Tewari submitted that the lower Court has held that the purchaser should have come to know the conditions of the contract as per the conditions printed on the back of the ticket and he cannot make any grievance simply because of the wrong advertisement and this reasoning of the lower court was correct and calls for no interference. 23. The learned Advocate General submitted that so far as the submissions made by the appellant about the validity of the lottery is concerned, firstly it has not been challenged in the suit, and secondly the presidential authorisation validates it. It was pointed out that the Court should not be concerned with the moral aspect of the lottery scheme introduced by the State, because it has to adjudicate the controversies between the parties within the frame work of the Statute. 24. In order to appreciate the above rival contentions of the parties, it would be first necessary to analyse the lottery scheme in chronological order, so far as its 80th draw is concerned. 24. In order to appreciate the above rival contentions of the parties, it would be first necessary to analyse the lottery scheme in chronological order, so far as its 80th draw is concerned. The undisputed facts in this respect need mention first. 25. The advertisement in the various news papers including the one produced by the plaintiff were published on 2-9-81 and nearabout it. In Rashradoot of 3-9-81 submitted by the plaintiff, half page of page No. 5 is devoted to this advertisement, which carries the caption of nine chances under one single ticket, in big bold print. This was repeated and published in almost all papers including Rajasthan Patrika dated 2-9-81 and Dainik Hindustan dated 1-9-81. The date of draws commences from 3-9-81 being the first mini draw and then ends by 15-10-81 which is the final draw and in between there are seven mini draws on various dates. 26. This scheme has been published in the Rajasthan Gazette, Extra- Ordinary, on 18-9-81, which means that after some of the mini draws were completed, because the second mini draw was on 9-9-81 and the first was on 3-9-81. This appears to be a posthumous publication to validate the scheme after the filing of the suit, which was done on 2-9-81. Corrigendums were then issued in the various news papers in the month of September on various dates, which are 10th, 11th and 12th of September etc. But curiously enough, these corrigendims instead of correcting the figure 9' by substitution of 2', create a confusion by making it 27'. In the advertisement published on 4-9-81 Dainik Hindustan mentions that first prise would be of 55 lacy in the next mini draw of 9-9-81, and this only exhibits the reckless number in which the mess has been made by various advertisements where truth has become the first casualty, and the mad race and craze for selling more and more tickets has reduced the State advertisements to a worst mockery. 27. It is not for this Court to analyse and adjudicate why such a mess has been made by the State itself when they are alleged to be spending about 10 lacs of rupees only on advertisement for each scheme of lottery draws. 27. It is not for this Court to analyse and adjudicate why such a mess has been made by the State itself when they are alleged to be spending about 10 lacs of rupees only on advertisement for each scheme of lottery draws. It reflects badly and exhibits a chaotic state of affairs in the functioning of the lottery department of the State of Rajasthan, and I have got no hesitation in holding that Mr. Dave's submission on this score is fully substartiated by the various advertisements produced before this Court and the lower Court and which are not in dispute. 28. The worst part of the tragedy is that after incurring such a heavy expenditure on advertisements and entering into this mad race of the Government revenue even by amoral methods, the lion's share of the common mans hard earned contribution by allurement of this scheme never goes to the State exchequer to be utilised for development works, but is consumed by the advertising agencies, the commission agents, who sell the lotteries, and the administrative machinery mobilised for operating this unholy and immoral scheme. In the net analysis, it is not in dispute that after adjustment of all the above expenditure and the prizes, less than one third of the total amount collected by sale of tickets goes in the funds of the State exchequer. 29. Be that as it may, without entering into the delicacies and intricacies of the above discussion, in order to avoid wide dimensions of the issue, because of the limited jurisdiction in which I am considering it, it will have to he examined now whether the refusal of the injunction calls for any interference by this Court. It is not in dispute that all the tickets which have been sold have conditions printed on the back side, but the same are firstly in English language and secondly the type used for printing is of microscopic size which makes it difficult to be legible to an ordinary purchaser of a ticket. I was unable to read them and my Stenographer could not type them. The Advocate General was then asked to give a typed version of these prima facie illegible conditions, which consumed two fool scap typed pages. Curiously enough, the size of the ticket is hardly 1/10 of one fool scap page. I was unable to read them and my Stenographer could not type them. The Advocate General was then asked to give a typed version of these prima facie illegible conditions, which consumed two fool scap typed pages. Curiously enough, the size of the ticket is hardly 1/10 of one fool scap page. After leaving some space on all sides, the conditions are printed in space of ten inches which makes reading almost illegible and without great effort it is difficult to read one sentence even. How can unweary purchasers mostly illiterate, and 90% of whom are not English knowing, can know the implications of such conditions at the time of purchasing a ticket. 30. The above observations are based on the basis of perusal of the ticket shown to me by the respondents in the Court, but it could not be kept on the record, because they are of the current draw. The offers issued in the news papers, as already mentioned above, contain a broad, bold and big caption of 9 chances in one ticket. The conditions, which are contained on the back of the ticket, are reproduced below for ready reference (as per typed copy given by the Advocate General):- Details of Prizes : First prise (1) Rs. 55.00 lakhs. second prise (1) Rs. 5.00 lakhs, Third prize(8) Rs. 1.00 lakh (one in each digit). Fourth prise (8) Rs. 50,000 each (one in each digit) & Consolation prise (160) Rs. 1,000 each (20 in each digit). Mini & Deshehara Draw (8):- I Mini Draw 3rd Sept. 81. II Mini Draw 9th Sept.' 81 III Draw (8) mini Draw 15th Sept. 81. IV mini Draw 21st Sept. 81, V Mini Draw 26th Sept. 81, VI Mini Draw 1st Oct, 81, Dashehara Draw (VII Draw) 8th Oct. 81 & VIII Mini Draw 16th October, 1981. First prise (I) Rs. 1.00 lac, Second prise (1) Rs. 10,000, Third prise (5) Rs. 1,000 each (one in each series). PROVISO:- The prizes of I, II, III, IV, V, VI. Deshchara Draw & VIII Mini Draw will be drawn from 1st digit, Second digit, Third Digit. Fourth digit, Fifth digit, Sixth digit, Seventh digit and Eighth digit respectively. In case no ticket of a particular digit is sold the Mini Draw Deshehara Draw associated with that digit would not be drawn. Deshchara Draw & VIII Mini Draw will be drawn from 1st digit, Second digit, Third Digit. Fourth digit, Fifth digit, Sixth digit, Seventh digit and Eighth digit respectively. In case no ticket of a particular digit is sold the Mini Draw Deshehara Draw associated with that digit would not be drawn. (ii) Accordingly the third, fourth & consolation prizes of the Final Draw will also be opened on the basis of digits. In case no ticket of a particular digit is sold no prise associated with that digit would be drawn. 1. This ticket has been issued under the provisions contained in the Rajasthan State Lottery Rules, 1968. 2. Prizes will be awarded to the prise winners only on surrendering the ticket to the Director, Small Savings & State Lotteries, Rajasthan, Jaipur within 30 days of the date of Final draw. 3. The Prize winning ticket numbers will be published in Rajasthan Rajpatra and leading news papers. 4. Deduction from prise winning tickets-On First Prize ( Rs. 55 Lakhs) ... 25% On or Above Rs. 1.00 lac but other than Rs. 1.00 lac .. . 10% income tax will also be deducted at source as per rules. 5. The agents in whose agency prise winning ticket of Rs. 1,000/- or above have been sold will be awarded rebate as under:- (a) For 1st prise 7% in whose agency sale is below 1 lac tickets and 10% in whose agency sale is 1 lac ticket or above. (b) For other prizes of Rs. 1,000/- or above 10%. (c) Counterfoil holder will be allowed on 1st prise 1% of the prise money and all other prizes on or above Rs. 1,000/-, 3% of the prise money in the form of tickets. 6. In case of dispute, the decision of the Director Small Savings & State Lotteries, Rajasthan, Jaipur shall be final and binding. 7. Legal jurisdiction of the lottery shall be at Jaipur only. 8. A prise winning ticket shall not secure more than one prise which may be the maximum." 31. It is not possible to ignore and avoid the liability of the State incurred on account of the wide publicity given in the news papers containing the above headings and captions. After all, the news paper advertisement is an offer and the purchaser who purchases the ticket accepts the offer, which prima facie makes it a contract. It is not possible to ignore and avoid the liability of the State incurred on account of the wide publicity given in the news papers containing the above headings and captions. After all, the news paper advertisement is an offer and the purchaser who purchases the ticket accepts the offer, which prima facie makes it a contract. To me, it appears that prima facie the publication of the conditions on the back of the lottery ticket against the Official Language Act of Rajasthan and in such small microscopic size and type cannot be said to form the basis of the contract, over-riding the advertisement though it would not be proper for me to decide this aspect finally. The learned Advocate General pointed out that the conditions on the tickets are printed in English language, because these tickets are sold throughout India except Maharashtra State and Mr. Dave showed to me the ticket of Maharashtra lottery which is printed in Maharashtra language, Hindi language and English language. As already pointed out, since I am only deciding the injunction matter, it will not be proper to probe into the validity of this at this stage, more so when the main attack of the appellant is on the fraudulent mis-representation resulting in promissory estoppel. 32. The lower Court has come to the conclusion that the lottery department committed a serious mistake in issuing advertisement, wherein it was mentioned that nine opportunities would be given to a person having one ticket, but it held that nothing turns upon that because the contract is to be governed - by the terms and conditions printed on the back of the ticket. In view of the above discussion, which I need not repeat, I am of the opinion that the lower court has made too much simplification of the issues involved in this case. 33. True it is that at this stage in a matter of injunction, it would be premature to decide whether the contract would be on the basis of advertisement acting as an offer and purchase of ticket being its acceptance making it an agreement, and whether the principles of promissory estoppel as enunciated by the Supreme Court in the two important leading decisions would exonerate the State Government or implicate it for the liability of the omissions and commissions of its Director and executive functionaries. But, on the totality of the consideration of the above facts, which are not in dispute, I am of the opinion that the plaintiff has got a good prima facie case to be considered by the trial Court in the civil suit. Neither the claim of the plaintiff-appellant can be said to be frivolous. vexatious or of technical superficial nature, but it is a claim which is of substantial nature requiring serious adjudication of important and vital issues involved and the situation on account of which these issues have been created, is a creation of none else than the respondents themselves. 34. It is not possible to ignore all these omissions and commissions enumerated above by a simple argument that Mr. Meena, though the Director of Lotteries, is not the State and the State is not bound by the functions of the Lotteries Department. In the net analysis and final adjudication of this sub- mission of the State may or may not find favour with the civil court trying the case, but at the moment for the purpose of injunction. I am not prepared to accept it in a broad, bald, wide and vague form creating a protective umbrella for all omissions and commissions of State functionaries to the State. 35. This is so, because after all the State functions through its functionaries and all said and done, it is the top brass of the bureaucrats who act as State functionaries so far as the execution and implementation of the law and policies of the State are concerned. Surely, the issue of the advertisement, selling of the tickets, and holding of the draws is an executive action and implementation aspect of the scheme only and not a policy matter much less legislative matter. That being so, I am firmly of the view that the appellant has got a strong prima facie case in his favour which would require serious adjudication by the Court and the trial Court committed a serious error in holding that the plaintiff has got no prima facie case. 36. That being so, I am firmly of the view that the appellant has got a strong prima facie case in his favour which would require serious adjudication by the Court and the trial Court committed a serious error in holding that the plaintiff has got no prima facie case. 36. As is well known, in order to obtain an injunction the plaintiff is not only required to show that he has got a prima facie case, but further it is necessary to test the requirement on the touch stones of balance of convenience and irreparable loss, and he can succeed if he succeeds on all the three counts. 37. As stated by the Advocate General, one crore and sixty lacy tickets of the value of Rs. 1,60,000/- have either been sold or are under that process and the minimum number of contributors will be 40 lacs as the cost of one ticket is Rs. 5/-. The plaintiff, who has come to this court, has got 10 tickets with him. It, therefore, means that lacs and lacs of persons who have purchased the tickets would be deprived of the benefit of getting a chance of trying their luck in this permissible alleged gambling of the State, in case any injunction prohibiting the draws is issued. Again, if the injunction in the mandatory form, as prayed by the plaintiff, for directing the respondents to include all the 40 lacs tickets in all the mini draws is issued, it would mean that the complications which have arisen on account of contradictions between the conditions of the scheme and the misleading advertisement would put the entire scheme in jeopardy and uncertainty, because of the doubts about the possible final outcome of this litigation. 38. The net result of the above discussion is that this Court should venture to safeguard the interest of all concerned and should not act in a manner so that there is multiplicity of litigation and chaos on account of that. It is the duty of this Court to pass such an equitable order which may put minimum inconvenience to all concerned and can safeguard the interest of the plaintiff also. 39. I have given a thoughtful consideration to the above issue and discussed it also with the learned counsel for both the parties during the course of arguments. It is the duty of this Court to pass such an equitable order which may put minimum inconvenience to all concerned and can safeguard the interest of the plaintiff also. 39. I have given a thoughtful consideration to the above issue and discussed it also with the learned counsel for both the parties during the course of arguments. The various alternatives were worked out, but for obvious reasons the respondents are not in a position to voluntarily undertake any one of them. Looking to the balance of convenience of the parties and to avoid irreparable loss to the plaintiff, I am of the view that the following directions should be issued in this case, and consequently the respondents are hereby directed as under:- 1 . That the respondents would be at liberty to conduct the mini draws and the final draw according to the conditions mentioned on the back of the ticket, and declare the result and distribute the prizes accordingly. 2. The above would, however, be subject to the condition that the respondents would conduct the mini draws, 6th, 7th and 8th, which have not been conducted so far after inclusion of the tickets of the plaintiff and in case the plaintiff is declared to be entitled to any prise in any of these draws on account of the opening of the draws, then it would be the liability of the respondents to pay him the amount of that prize, if finally the plaintiff succeeds in the suit. 3. It is made clear here that the relief which is given by this injunction is to be given to the plaintiff and plaintiff alone, and if by inclusion of the plaintiff's tickets in these mini draws, any other ticket holder is declared as the winner on account of the opening of the draws, it would not be necessary for the respondents to declare and record it. 4. Since the first direction is subject to the second one, it is made clear that unless the respondents give their undertaking in writing before this Court. that they would faithfully comply with the second condition, they would not be entitled to proceed with the 6th, 7th and 8th draw of the lotteries in future in consonance with condition No. 1 of this order. that they would faithfully comply with the second condition, they would not be entitled to proceed with the 6th, 7th and 8th draw of the lotteries in future in consonance with condition No. 1 of this order. This undertaking should be furnished by the State, which means the Secretary of the State and not the Director alone, to the Registrar of this Court. (5) It is further made clear that the mini draws, 6th, 7th and 8th in which the tickets of the plaintiff would be included would be conducted after information and intimation of the time and place of the same is given to the plaintiff or his counsel, in advance, so that they can remain present to ensure that there is no foul play. 40. Before parting with this case I would like to mention that as pointed out above, the entire mess created in the various advertisements issued by the Government and that too not by small insignificant functionaries, but by the Director of the Department has left much to be desired and exhibits a very sad state of affairs prevailing in the Lotteries Department of the State of Rajasthan. It is not for this Court but for the proper authorities concerned to probe into the matter and do the needful to avoid such recurrence. 41. In the earlier part of my judgment, I have already pointed out that the lottery activities had been authoritatively held to be gambling activities. In the State of Bombay V. R.M.D.-Chamarbaugwala and another (supra), their lordships of the Supreme Court had the occasion to consider the nature of these activities in connection with the challenge made to certain provisions of Bombay Lotteries and Prize Competitions Control and Tax Act. Their lordships were constrained to observe that these activities have been condemned in the country from ancient times. Not only that they have been discouraged and looked upon with disfavour in western countries like U.S.A. and Australia, Scotland and England. 42. These gambling activities which per se and prima facie are offences when they are committed by private citizens at public places have been provided protective umbrella by enactment of laws by the State, exempting lotteries from the definition of gaming. They encourage a spirit of reckless propensity for making easy gain by lot or chance. 42. These gambling activities which per se and prima facie are offences when they are committed by private citizens at public places have been provided protective umbrella by enactment of laws by the State, exempting lotteries from the definition of gaming. They encourage a spirit of reckless propensity for making easy gain by lot or chance. But, in the net analysis, they result in loss of hard earned money of the undiscerning and improvident common man and mostly poor men of India, as majority of the people live below poverty line. This results in lowering down their standards of living and drive those persons into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home. The activities in the form of lottery which are nothing but gambling are inherently vicious and pernicious. 43. It is not for this Court but for the legislators to consider whether the craze and mad race for augmenting revenue is to be allowed by encouraging such gambling activities at State level and by none else, and that too by welfare State under the socialist preamble of the Constitution. During the course of arguments, I squarely put the above submission of Mr. Jain to the Advocate General, whether this craze and mad race for augmenting revenue even by adopting such sinful, vicious and pernicious activities of gambling, though legalised by the Statute require some rethinking, or if not, a day would not be far when the State activities which have already degenerated in this particular branch of revenue augmentation drive may lead to extreme immoral traffics of flesh trading which are otherwise prohibited by laws, so far as individual citizens are concerned, as happened in Chander Gupta's times and as is prevalent in a few western countries, although seemingly there is no such immediate possibility in a State committed to socialism. The learned Advocate General submitted that this is the moral aspect with which we are not concerned, and when he said so, he was not far wrong. The learned Advocate General submitted that this is the moral aspect with which we are not concerned, and when he said so, he was not far wrong. However, since the issues have been raised in this case, I cannot refrain from mentioning what the great justice Krislina lyer observed in similar context of prohibition in (7) P. N. Kaushal V. Union of India, AIR 1978 SC 1457 He observed; "While the imperial masters were concerned about the revenues they could make from the liquor trade they were not indifferent to the social control of the business which is left unbridled, was fraught with danger to health, morals, public order and the flow of life without stress or distress." "The trade is instinct with injury to individual and community and has serious side-effects recognised everywhere in every age. Not to control alcohol business is to abdicate the right to rule for the good of the people. Not to canalise the age and sex of consumers and servers, the hours of sale and cash and carry basis, the punctuation and pause in days to produce partially the 'dry' habit-is to fail functionally as a welfare State". "The very subject matter of the statute intoxicants eloquently impresses the Act with a clear purpose a social orientation and a statutory strategy. If bread and brandy are different the point we make argues itself. The goal is promotion of temperance and, flowing there out, of sobriety, public order, individual health, crime control, medical bills, family welfare, curbing of violence and tension, restoration of the Addict's mental, moral and physical personality and interdict on impoverishment in various degrees, compounded." "We have reasoned enough to justify the ways of the Constitution and the law to the consumers of social justice and spirituous potions. The challenge fails and the writ petitions Nos. 4108-4109 etc. of 1978 are hereby dismissed with costs (one hearing fee). The challenge fails and the writ petitions Nos. 4108-4109 etc. of 1978 are hereby dismissed with costs (one hearing fee). May we hopefully expect the State to bear true faith and allegiance to that constitutional orphan, Article 47?", In other context the same great Judge hinted at new dimensions of Law & Society and scrapping the rigidity opined as under:- "Law is social science and constitutionally turns not on abstract principles or rigid legal canons but concrete realities and given conditions, for the rule of law stens from the rule of life." Justice Gajendra Gadkar in his speech on the subject, `Law, lawyers & Judges' in an inaugural address of centenary celebrations of the Advocates Association of Western India, at Bombay on October 18, 1963, while advocating for ethical school of law, his lordships said, "Every day before the proceedings commence when Judges and lawyers bow before that seat of justice it is necessary that each one of us should remember that we discharge in the Court room is the solemn task of search and truth. Ethical considerations of the highest order cannot be eliminated from our courts, for in a sense, that work is the work of worship in the temples of justice. In (8) Gaganraj Singh Nagori V. Union of India, 1979 WLN 634 1 had occasion to discuss 'Law & Morality' when I observed as under; "The ethical schools of law believe that law should be based on Morality, consideration of right and wrong, moral or immoral." "The Indian Laws, belong to which school of law, is a question which would require tremendous study & research to answer. Again that answer can be given better by Professor of law, Research scholars or eminent jurist is only not by a jumble Judge while deciding a short point in this case. But this much can certainly be said that our legislatures have not yet started thinking of making or enacting laws against morality nor any such socialogical or economic needs have been felt to abandon the 'ethical' schools of law completely." 44. I am of the view that petitioners counsel is not far wrong when he asserts that the State must pause for a moment and think where we are driving and going, ? what we are about ? I am of the view that petitioners counsel is not far wrong when he asserts that the State must pause for a moment and think where we are driving and going, ? what we are about ? The canvass from scrapping of prohibition to lotteries is too wide and need not be discussed, but as pointed out by Mr. Dave, it is certainly a matter of concern to exercise the minds of those legislators who have got concern for moral values to consider, whether the craze for augmenting revenue should be allowed to go on unfattered, unrestricted and unlimited form, or there must be a stage when they should say, "so far and no further". 45. I cannot do better than reminding the State of what the Apex Court has said in the context of Lotteries & Prize Competitions, in State of Bombay V. R.M.D. Chamarbaugwala and another (supra), long back more than two and a half decades, a earlier they observed:- "The question arises whether our Constitution makers ever intended that gambling should be a fundamental right within the meaning of Art.- 19(1)(g) or within the protected freedom by Article 301 ". "The avowed purpose of our Constitution is to create a Welfare State. The directive principles of State policy set forth in Part IV of our Constitution of India enjoin upon the State the duty to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social economic and political, shall inform all the institutions of the national life. It is the duty of the State to secure to every citizen, men and women, the right to an adequate means of livelihood and to see that the health and strength of workers, men and women, and the tender age of children are not abused to protect children and youths against exploitation and against moral and material abandonment." "It is to be the endeavour of the State to secure to living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, to protect the weaker sections of the people from social injustice and all forms of exploitation, to raise the standard of' living of its people and the improvement of public health. The question canvassed before us is whether the Constitution makers who set up such an ideal of a Welfare State could possibly have intended to elevate betting and gambling on the level of country's trade or business or commerce and to guarantee to its citizens, the right to carry on the same. There can be only some answer to the question." "From ancient times seers and law-givers of India looked upon gambling as a sinful and pernicious vice and deprecated its practice. Hymn XXXIV of the Rigveda proclaims the demerit of gambling. verses 7, 10 and 13 say:- 7. Dice verily are armed with goads and driving books, deceiving and tormenting, causing grievous woe. They give frail gifts and then destroy the man who wins, thickly anointed with the player's fairest good." "10. The gambler's wife is left forlorn and wretched : the mother mourns the son who wanders homeless. In constant fear, in debt, and seeking riches, he goes by night upto the home of others." "11 . Play not with dice : no, cultivate thy cornland. Enjoy the gain, and deem that wealth sufficient. There are thy cattle, there thy wife 0 gambler, so this good savitar himself hath told me." "The Mahabharata deprecates gambling by depicting the woeful conditions of the Pandavas who had gambled away their kingdom. Manu forbade gambling altogether. Verse 221 advises the king to exclude from his realm gambling and betting, for those who vices cause the destruction of the kingdom of princes. Verse 224 enjoins upon the king the duty to corporally punish all those persons who either gamble or bet or provide an opportunity for it. Verse 225 calls upon the king to instantly banish all gamblers from his town." "In verse 226 the gamblers are described as secret thieves who constantly harass the good subjects by their forbidden practices. Verse 227 calls gambling a vice causing great enmity and advises wise men not to practice it even for amusement. The concluding verse 228 provides that on every man who addicts himself to that vice either secretly or openly the king may inflict punishment according to his discretion." "While Manu condemned gambling outright, Yajnavalkya sought to bring it under State control but he too in verse 202 (2) provided that persons gambling with false dice or other instruments should he branded and punished by the king. Kautilya also advocated State Control of gambling and, as a practical person that he was, was not adverse to the State earning some revenue therefrom." "Vrihaspati dealing with gambling in chap. XXVI, verse 1 99, recognises that gambling had been totally prohibited by Manu because it destroyed truth, honesty and wealth, while other law-givers permitted it when conducted under the control of the State so as to allow the king a share of every stake. Such was the notion of Hindu lawgivers regarding the vice of gambling. Hamilton in his Hedaya vol. IV, Book XLIV, includes gambling as a Kirahecat or abomination. "He says; "it is an abomination to play at chess, dice or any other game, for if anything is staked it is gambling, which is expressly prohibited in the Koran, or if on the other hand, nothing be hazarded it is useless and vain." The wagering contracts of the type which formed the subject matter of the case of Ramloll V. Sooj.inmull, 4 Moo Ind. App 339 PC , (Y), and was upheld by the Privy Council as not repugnant to the English Common Law were subsequently prohibited by Ac. XXI of 1948 which was enacted on the suggestion of Lord Campbell made in that case and introduced in India provisions similar to those of the English Gaming Act (8 & 9 vict. c. 109)". "Bengal Gambling Act (Ben. Act 2 of 1867)provided for the Punishment of public gambling and the keeping of common gaming house in the territories subject to the Lieutenant Governor of Bengal. Lottery has been, since 1870 made an offence under Section 294A of the Indian Penal Code. Gambling agreements have been declared to be void under the Indian Contract Act, 1872 (S.30). This in short is how gambling is viewed in India." "Before the Legislature intervened, gambling and wagering were not prohibited by the English Common Law although the English Courts looked upon it with disfavour and discouraged it on grounds of public policy by denying procedural facilities which were granted to other litigants. The Scottish Courts, however, have always refused to recognise the validity of wagering contracts and have held that sponsiones ludicroe, as the style such contracts, are void by the Common Law of Scotland." "Gambling and Betting Act, 1664 (16 car. II, C.7) was directed against fraudulent and excessive gambling and betting at games or sports. The Scottish Courts, however, have always refused to recognise the validity of wagering contracts and have held that sponsiones ludicroe, as the style such contracts, are void by the Common Law of Scotland." "Gambling and Betting Act, 1664 (16 car. II, C.7) was directed against fraudulent and excessive gambling and betting at games or sports. This was followed by the Gaming Act of I710 (9 Anne, G. 19). The Marine Insurance Act, 1745 (19 Geo, II, C.37) for the first time prohibited wagering policies on risks connected with British shipping. This was supplemented by the Marine Insurance Act, 1788 (28 Geo. III, C.56)." "The Life Insurance Act, 1 774 (14 Geo. III, c.48) though not intended to prohibit wagering in general, prohibits wagering under the cloak of a mercantile document which purported to be a contract of insurance. Then came the Gaming Act of 1845 (8 & 9 Vict., 109) which for the first time declared all contracts made by way of gaming or wagering void irrespective of their form or subject matter. The provisions of this Act were adopted by our Act XXI of 1948 as herein before mentioned. The Gaming Act of 1892 (55 & 56 vict., c. 9) further tightened up the law." "As far back as 1850, the Supreme Court of America in Phalen V. Commonwealth of Virginia, (1850) 49 U. S. 163 : 12 Law Ed. 1030 at P. 1033 (z) observed : "Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with wide-spread pestilence of lotteries. The former are confined to a few persons and places but, the latter infests the whole community; it enters every dwelling; it reaches every classes; it preys upon the hard earnings of the poor; it plunders the ignorant and the simple." "The observations were quoted, with approval, in (9) Douglas V. Common- wealth Kentucky. 1897-168 U. S. 488 :" 42 Law Ed. 553 at p. 555 (ZI) . After quoting the passage from (10) (1850) 49 U.S. 163 : 12 Law Ed. 1030 at p. 1033 (z) the judgment proceeded : "Is the State forbidden by the supreme law of the land from protecting its people at all times from practices which it conceives to be attended by such ruinous results ? 553 at p. 555 (ZI) . After quoting the passage from (10) (1850) 49 U.S. 163 : 12 Law Ed. 1030 at p. 1033 (z) the judgment proceeded : "Is the State forbidden by the supreme law of the land from protecting its people at all times from practices which it conceives to be attended by such ruinous results ? Can the Legislature of a State contract away its power to establish such regulation is as are reasonably necessary from time to time to protect the public morals against the evils of lotteries." "It will be abundantly clear from the foregoing observations that the activities which have been condemned in this country from ancient times appear to have been equally discouraged and looked upon with disfavour in England, Scotland, the United States of America and in Australia in the cases referred to above." To a common man, where one studies the Gambling Act or the Immoral Traffic Act, or the other prohibited activities by citizens, it appears unusual and sounds u well when the State, the greatest protector, the guardian and guide of all citizens itself involves in some such activities and that too solely for the purpose of augmenting revenue. It can very well be achieved by other productive, constructive plans of economic development of the country. 46. The evil genius of Luis XV of France introduced this devastating immoral menace of State Lottery which preys upon the hard earning of the poor and plunders the igrnorat and simple. Realising evil effects, the entire European coutries banned it in eighteenth century. However, the British Imperialists introduced it in Calcutta in 1784 but after 46 years it was stopped. The irony of fate and crucial paradox is that the progressive socialist State of Kerala after 180 years of it, again gave it fresh life after digging it from the graves of British Imperialists. The anti-climax being all this done in the name of welfare of people in 1968. Since then, sixteen states of India have entered into competitive hysteria of State lotteries. The anti-climax being all this done in the name of welfare of people in 1968. Since then, sixteen states of India have entered into competitive hysteria of State lotteries. In 1969, one of the competitors wanted to take lead by hoisting the sacred national flag of India and putting the photos of Parliament on the ticket of the lottery to make it 'hot cake', but the parliament reacted sharply and banned such nefarious exploitation of the national flag and the photo of parliament on ticket which in the ultimate analysis plunders the ignorant, simple and poor. Yet it could not ban the lottery itself. A simple survey conducted in the Maharashtra disclosed that every house was plundered once at least in a year. Such being the historical and statistical review, with all the limitations of the judicial Courts and without acting as a third chamber, may I echo the great voice of the great Justice V. R. Krishna lyer, extracted above in the prohibition case wherein he humbly asked, "what are we for." 47. Before closing, I must make it clear that whatever I have mentioned about lottery being gambling is based on law laid down by Bombay High Court and Supreme Court of India and Supreme Court of America in the above cases, which again is on the basis of common parlence and usual tests. The Rajasthan Law of Gambling expressly excludes 'lottery' from its purview and, therefore, that law would prevail over my generalisation. 48. At the end, I must place on record the ability and fairness with which Dr. Tewari, the Advocate General and Mr. Dave, the learned counsel for the appellant argued the case and placed various facets of this legal cum moral debate. 49. With the above observations, I have got no hesitation in accepting this appeal, though without any order as to costs, in terms of the directions mentioned above. [The Preceding judgment has been modified by D. B. in Special appeal in the following judgment] *******