State of Kerala and others v Leena Augustine, Devdhan Lottery Services (DLS) and Sri. Biju Prabhakaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936** **WA.No. 1764 of 2011 ( )** **-------------------------------THE JUDGMENT DATED 18-08-2011 IN WP(C).NO.7507/2011.** **.......** **APPELLANTS/RESPONDENTS 1 TO 3:** **--------------------------------------------------------** ## **1. STATE OF KERALA,** **REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. SECRETARY TO GOVERNMENT,** **TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE DIRECTOR OF STATE LOTTERIES,** **DIRECTORATE OF STATE LOTTERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **BY SPL. GOVT. PLEADER SMT.GIRIJA GOPAL.** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 4 & 5:** **------------------------------------------------------------------------------------** **1. MRS.LEENA AUGUSTINE, W/O.AUGUSTINE KURIAKOSE, PUTHUMANA HOUSE, CHUNGAM, KOLANI P.O., THODUPUZHA, IDUKKI DISTRICT.** **2. DEVDHAN LOTTERY SERVICES (DLS), 39/76, D1, 3RD FLOOR, BHARATHI BUILDING, MAHAKAVI G ROAD, ERNAKULAM-682 011.** **3. SRI.BIJU PRABHAKARAN, THE DIRECTOR OF STATE LOTTERIES, DIRECTORATE OF STATE LOTTERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **R1 BY ADVS. SRI.SANTHOSH MATHEW, SRI.SATHISH NINAN,** **SRI.ARUN THOMAS.** **R2 BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE. ADVS. SRI.GILBERT GEORGE CORREYA, SRI.P.K.VIJAYAMOHANAN.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **WA.No. 1764 of 2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A COPY OF THE ADVERTISEMENT IN THE MATHRUBHUMI DAILY DATED 14/11/2010.** **ANNEXURE B COPY OF THE ADVERTISEMENT DATED 19/11/2010 IN THE KERALA KOUMUDI DAILY.** **ANNEXURE C COPY OF THE PRINT OUT OF THE ALLOTMENT OF TICKET NUMBERS TAKEN BY THE DEPARTMENT FROM THE WEBSITE OF 'JYOTHIS' (www.jyothisproject.com).** **ANNEXURE D COPY OF THE LETTER DATED 22/02/2011 ISSUED BY THE SECRETARY, TAXES DEPARTMENT.** **ANNEXURE E COPY OF THE PROCEEDINGS DATED 25/01/2011.** ## **RESPONDENT'S ANNEXURES:-** - **EXT.R1(1) COPY OF THE PRINT OUT TAKEN FROM THE WEBSITE OF THE LOTTERY DEPARTMENT.** - **EXT.R2A COPY OF THE COMMUNICATION NO.S1/2416/07/DSL DATED 13/02/2007 ISSUED BY THE 3RD RESPONDENT.** - **EXT.R2B TRUE ENGLISH TRANSLATION OF EXT.R2A.** - **EXT.R2C COPY OF THE ORDER NO.32960/CAMP/07/EC DATED 19/10/2009 OF THE COMMISSIONER OF POLICE, KOCHI CITY.** - **EXT.R2D COPY OF THE RETURN SUBMITTED BY THE 2ND RESPONDENT TO THE ASSISTANT COMMISSIONER OF POLICE FOR THE MONTH OF JULY, 2010.** - **EXT.R2E COPY OF THE MONTHLY STATEMENT OF THE MEMBER COLLECTION SUBMITTED BY THE 2ND RESPONDENT FOR THE MONTH OF NOVEMBER 2010.** - **ANNEXURE I COPY OF THE LETTER NO.B1-6002/FSL/2013 DATED 27/08/2013 OF THE DIRECTOR OF FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM.** **ANNEXURE-I (IN IA. NO.1060/2014): COPY OF THE CYBER FORENSIC ANALYSIS REPORT.** - **ANNEXURE A COPY OF THE RESULT OF EXAMINATION OF HARD DISK RECEIVED FROM THE FSL, THIRUVANANTHAPURAM ON 12/12/2013.** **ANNEXURE R1(1) COPY OF THE REPORT SUBMITTED BY SHRI R.NARAYANAN PILLAI, DETECTIVE OFFICER, CBCID EOW-II, ERNAKULAM SUB UNIT TO THE DIRECTOR, KERALA STATE LOTTERIES, THIRUVANANTHAPURAM.** **WA.No. 1764 of 2011** **ANNEXURE R1(2) TRUE ENGLISH TRANSLATION OF ANNEXURE R1(1). ANNEXURE R2A COPY OF THE COMMUNICATION NO.L1/LTRY/DLS/07 DATED 09/02/2007 OF THE 2ND RESPONDENT ADDRESSED TO THE 3RD APPELLANT. ANNEXURE R2B COPY OF THE COMMUNICATION NO.S1.2416/07/DSL DATED 13/02/2007 FROM THE 3RD APPELLANT. ANNEXURE R2C TRUE ENGLISH TRANSLATION OF ANNEXURE R2(B) COMMUNICATION DATED 13/02/2007. ANNEXURE R2D COPY OF THE AGENTS IDENTITY FOLDER ISSUED TO THE PARTNER OF THE 2ND RESPONDENT ON 12/11/2009 WHICH WAS RENEWED UPTO 31/12/2010. ANNEXURE R2E COPY OF THE APPLICATION FORM FOR MEMBERSHIP IN THE JYOTHIS PROJECT CONTAINING THE TERMS AND CONDITIONS OF THE SCHEME. ANNEXURE R2F COPY OF THE PROCEEDINGS NO.32960/CAMP/07/EC DATED 19/10/2009 OF THE COMMISSIONER OF POLICE, KOCHI CITY ON THE PETITION SUBMITTED BY THE 2ND RESPONDENT.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** Ashok Bhushan, Ag. C.J & A.M. Shaffique, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.A. No. 1764 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 25[th] day of November, 2014. ## J U D G M E N T ## Shaffique, J. This appeal is filed by the State and its officers challenging the judgment dated 18.8.2011 in W.P(C) No. 29095/2011. By the impugned judgment, the learned Single Judge had directed the appellants to disburse the amount covered by the lottery ticket purchased by the petitioner of which the draw was held on 10.11.2010. 2. The facts involved in the writ petition would disclose that the petitioner joined a scheme known as Jyothis Project organized by the 5[th] respondent. As per the scheme, she used to give advance amounts to the 5[th] respondent for purchasing lotteries of Kerala State. She will be intimated about the ticket particulars well in advance and before the draw. With reference to 73[rd] draw of Win Win lottery, the petitioner was allotted the ticket number. She was the winner of the said draw. As per the ticket, she was entitled to first prize of Rs. 40 lakhs and 50 sovereigns. Though the petitioner submitted the lottery ticket along with other particulars before the Lottery Department, payment was not made and accordingly the petitioner approached this Court by filing the above writ petition. W.A. No. 1764 of 2011 -: 2 :- 3. Counter affidavit was filed inter alia stating that though the genuineness of the ticket was not disputed, the prize claim was withheld for verifying the genuineness of the prize winner and her nexus with the promoters of Jyothis Project, which was under investigation. 4. Having heard the matter in detail, the learned Single Judge observed that the petitioner's lottery ticket has won first prize and the genuineness of the same being not disputed, the Department is liable to pay the prize covered by the lottery ticket. As far as the investigation in respect of Jyothis Project is concerned, the learned Single Judge observed that the said investigation was irrelevant for the purpose of giving the prize on the lottery to the petitioner. It is impugning the aforesaid judgment that this appeal has been filed. 5. In the appeal, the appellants have indicated that investigation is being conducted by the police against the promoters of Jyothis Project and only after investigation of such enquiry that the amount can be disbursed. That apart, it is contended that the date of issue of allotment of the lottery ticket in favour of the petitioner was also relevant as doubt had been expressed indicating that the tickets were allotted after W.A. No. 1764 of 2011 -: 3 :- the date of draw. 6. On the other hand, it is argued by the learned counsel for the writ petitioner that the Lottery Department cannot desist from paying the amount covered by the lottery ticket raising such disputes. Once the lottery ticket produced by the petitioner is genuine, no further enquiry is possible and the prize winner of the lottery ticket is liable to be paid the prize amount. 7. The learned counsel for the writ petitioner also argued that since there was delay on the part of the Department in paying the amount covered by the prize, the petitioner should be paid interest on the said amount as well. It is inter alia contended that until an order was passed by this Court on 1[st] October, 2013 directing the prize amount to be deposited in fixed deposit, the petitioner had lost interest from the date of the judgment for which the Department is liable to pay interest from the date when the amount was due. 8. We have heard the learned Special Government Pleader Smt. Girija Gopal and Sri. Santhosh Mathew, the learned counsel appearing for the 1[st] respondent. 9. The main contention urged by the appellants is with reference to pending enquiry by the police in W.A. No. 1764 of 2011 -: 4 :- regard to the Jyothis scheme and its promoters. First of all, we are not satisfied with the contention that a winner of a lottery has to wait till an investigation is being completed against the promoters of the scheme. As far as the petitioner is concerned, she had purchased a lottery ticket which she had produced before the Director of Lotteries. In a report filed on behalf of the respondents, it is also indicated that from the materials available by an investigation through the C-DAC, Thiruvananthapuram, it is noticed that as per the computer statement available, the allotment date of the lottery was on 4.11.2010 whereas the draw was on 10.11.2010. Therefore, apparently, this is a clear case in which the petitioner has purchased the ticket as per the scheme on 4.11.2010. Under such circumstances, there is no reason for any doubt regarding the genuineness of the ticket and the genuineness of the transaction under which the petitioner had purchased the ticket. 10. It is pointed out by the learned Government Pleader that the licence for conducting the scheme has already been cancelled as far as the agent is concerned. They have a case that such schemes are not permissible as per the provisions of the Act and Rules. W.A. No. 1764 of 2011 -: 5 :- 11. We are not expressing any opinion regarding the validity of the said scheme in this proceedings. Therefore, we are of the view that the learned Single Judge was justified in directing payment of prize amount to the petitioner. 12. In regard to the claim of the petitioner for interest, learned counsel for the respondent relied upon the judgment of this Court in **V. Alias v. Abraham** , 2004 KHC 714. Specific reference is made in paragraph 10 of the judgment, which reads as under: “10. The doctrine of actus curiae neminem gravabit is a maxim founded upon justice and good sense and affords a safe and certain guide for the administration of the law. Apex Court had occasion to consider the above maxim in Karnataka Rare Earth v. Senior Geologist, Dept. of Mines & Geology, 2004 (2) SCC 783. Apex Court placing reliance on the earlier decision of the Apex Court in South Eastern Coal Fields Ltd. v. State of M.P., 2003 (8) SCC 648 held as follows: “The doctrine of actus curiae neminem gravabit is not confined in its application only to such acts of the court which are erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the court to pass an order which at the end is held as not sustainable has resulted in one party gaining an advantage which it would not have otherwise earned or the other party has suffered an impoverishment -: 6 :- W.A. No. 1764 of 2011 which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost.” The principle laid down by the Apex Court in South Eastern Coal Field's case and Karnataka Rare Earth's case, in our view, would be squarely applicable to the facts of this case and applicable to final judgments rendered by courts. Respondents 1 and 2 without making the appellants parties to the Writ Petition got an advantage which they would not have got on the basis of Ext. P4 order. Ext. P4 order specifically says that the funds could be utilized only after getting majority decision of the parties. Admittedly, such a decision has not been taken by the majority of the partners. But for this court's judgment, respondents 1 and 2 could not have utilized the amount without a decision of the majority of the partners. Bank was informed of Ext. P4 order by the appellants. Bank also understood without majority decision the amount could not be utilized. Bank would not have released the amount, but for the judgment of this Court in W.P (C) No. 39626/03 which was rendered by this Court without appellants in the array of parties. We are of the view the doctrine of actus curiae neminem gravabit would squarely apply to the facts of this case since this Court would not have so acted had it been correctly appraised of the facts by the respondents 1 and 2. Under such circumstances, the parties should be placed in the same situation that we got before the passing of the judgment by this Court on 16[th] December, 2003.” On this basis, it is argued that since this Court had W.A. No. 1764 of 2011 -: 7 :- issued interim order of stay on the grounds mentioned in the memorandum of appeal, which is now found to be incorrect, the petitioner is entitled for interest at least from the date of the judgment of the learned Single Judge. 13. We do not think that the principle stated in paragraph 10 of the above said judgment can be made applicable to the facts and circumstances of the case. 14. By an interim order dated 8.12.2011, this Court observed has directed as under: “Admit. Stay granted as sought for. However, we direct the Government Pleader to inform the Court, what is the stage of the investigation initiated against the agents concerned and when it is likely to be completed. This information has to reach the Court within a week.” This order was modified by order dated 1.10.2013 in I.A. No. 706/2012, directing the amount to be kept in fixed deposit. 15. Having regard to the fact that this Court had considered the claim of the respondent as well and interim orders had been passed on 8.12.2011 based on investigation initiated against the agent, we do not think that the judgment aforesaid has any application to the facts of the above case. 16. In the result, we decline to grant interest as W.A. No. 1764 of 2011 -: 8 :- claimed by the petitioner. The appeal is dismissed without any order as to costs. The appellant shall make necessary arrangements to pay the prize and release the amount under fixed deposit with accrued interest within one month from the date of receipt of a copy of this judgment. Ashok Bhushan, Ag. Chief Justice A.M. Shaffique, Judge. Tds/