IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 W.P.(C).No.6552 of 2011(S) --------------------------------------- PETITIONER:- --------------------- V.D.SATHEESAN, MLA, ADVOCATE, NORTH PARAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM SRI.SUJITH MATHEW JOSE RESPONDENTS:- ------------------------- 1. UNION OF INDIA, REPRESENTED BY THE CABINET SECRETARY, CENTRAL SECRETARIAT, NEW DELHI - 110 001. 2. THE SECRETARY, DEPARTMENT OF PERSONNEL AND PUBLIC ADMINISTRATION, UNION OF INDIA CENTRAL SECRETARIAT, NEW DELHI - 110 001. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRTARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 4. THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, NEW DELHI - 110 001. W.P.(C).NO.6552 OF 2011-S - 2 - ADDITIONAL RESPONDENT NO.5: ------------------------------------------------- ADDL.R5. STATE OF SIKKIM, REPRESENTED BY DIRECTOR OF LOTTERIES, SIKKIM STATE LOTTERIES, GOVERNMENT OF SIKKIM. (ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 8.3.2011 ON I.A.NO.4021 OF 2011). R1 & R2 BY SOLICITOR GENERAL OF INDIA SHRI.GOPAL SUBRAMANIAM & A.C.G.S.C. SHRI.C.S.AJITH PRAKASH. R3 BY SENIOR ADVOCATE SHRI.NIDEESH GUPTHA & GOVERNMENT PLEADER SHRI.K.P.PRADEEP. R4 BY STANDING COUNSEL SHRI.P.CHANDRASEKHARA PILLAI. R5 BY SENIOR ADVOCATE SHRI.GANESH & ADVOCATE SHRI.JOSE JOSEPH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, ALONG WITH W.P.(C).NO.7251 OF 2011-S, THE COURT ON 24/05/2011 DELIVERED THE FOLLOWING:- W.P.(C).NO.6552 OF 2011-S APPENDIX PETITIONER'S EXHIBITS:- -------------------------------------- EXT.P1 - TRUE COPY OF THE VIGILANCE REPORT DATED 16.10.2006. EXT.P2 - TRUE COPY OF THE LETTER NO.D.O.NO.698/VIP/CM/2010 DATED 29.11.2010. EXT.P3 - TRUE COPY OF THE NOTIFICATION NO.58682/M3/2006/HOME DATED 12.2.2008. EXT.P4 - TRUE COPY OF THE G.O.(Ms).NO.5/2010/HOME DATED 7.1.2010. EXT.P5 - TRUE COPY OF THE G.O.(Ms).NO.55/2010/HOME DATED 1.3.2010. RESPONDENTS' EXHIBITS/ANNEXURES:- ------------------------------------------------------------ ANNEXURE R3(a) - TRUE COPY OF THE LETTER NO.E.IV/204/1/1999 DATED 27.10.2010. ANNEXURE R3(b) - TRUE COPY OF THE LETTER D.O.NO.747.VIP/CM/2010 DATED 23.12.2010. ANNEXURE R3(c) - TRUE COPY OF THE COMMUNICATION DATED 29.12.2010. ANNEXURE R3(d) - TRUE COPY OF THE LETTER D.O.NO.130/VIP/CM/2011 DATED 2.3.2011. ANNEXURE R3(e) - TRUE COPY OF THE ORDER DATED 19.12.2003 IN I.A. NO.2821/03 IN W.A.NO.2044/2003. ANNEXURE R3(f) - TRUE COPY OF THE ORDER DATED 15.9.2004 OF THE HON'BLE SUPREME COURT. ANNEXURE R3(g) - TRUE COPY OF THE ORDER DATED 24.01.2005. ANNEXURE R3(h) - TRUE COPY OF THE COMMUNICATION NO.35022/H1/2004/TD DATED 2.2.2005 FROM THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT. ANNEXURE R3(i) - TRUE COPY OF THE AFFIDAVIT FILED IN CONTEMPT PETITION (C).NO.593-97 OF 2004. W.P.(C).NO.6552 OF 2011-S - 2 - ANNEXURE R3(j) - TRUE COPY OF THE ORDER DATED 21.2.2005 IN CONTEMPT PETITION. ANNEXURE R3(k) - TRUE COPY OF THE NOTICE DATED 27.10.2006 ISSUED TO THE PROMOTER OF THE ROYAL GOVERNMENT OF BHUTAN. ANNEXURE R3(l) - TRUE COPY OF A NOTICE DATED 27.10.2006 ISSUED TO THE PROMOTER OF THE GOVERNMENT OF SIKKIM. ANNEXURE R3(m) - TRUE COPY OF THE JUDGMENT DATED 30.3.2007 IN W.A.NO.88/2007. ANNEXURE R3(n) - TRUE COPY OF THE JUDGMENT DATED 30.3.2007 IN W.A.NOS.101 AND 256 OF 2007. ANNEXURE R3(o) - TRUE COPY OF THE D.O.NO.15055/H1/06/TD. DATED 10.11.2006. ANNEXURE R3(p) - TRUE COPY OF THE LETTER NO.15055/H1/06/TD DATED 12.01.2007. ANNEXURE R3(q) - TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE UNION MINISTER FOR HOME DATED 22/23.1.2007. ANNEXURE R3(r) - TRUE COPY OF THE ACKNOWLEDGMENT LETTER DATED 23.1.2007. ANNEXURE R3(s) - TRUE COPY OF THE LETTER DATED 12.06.2007 OF THE UNION MINISTER FOR HOME AFFAIRS. ANNEXURE R3(t) - TRUE COPY OF THE LETTER D.O.NO.11559/H1/2008/TD DATED 1.1.2009. ANNEXURE R3(u) - TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 4.11.2009. ANNEXURE R3(v) - TRUE COPY OF THE ORDER DATED 11.3.2010 IN CIVIL APPEAL NO.3088/2004. ANNEXURE R3(w) - TRUE COPY OF THE LETTER DATED 3.3.2011 OF THE HOME MINISTER OF INDIA. ANNEXURE R3(x) - TRUE COPY OF THE LETTER NO.805/21/C/23/2010-Pol.4461 DATED 24.1.2011. W.P.(C).NO.6552 OF 2011-S - 3 - ANNEXURE R3(y) - TRUE COPY OF THE LETTER NO.805/21/C/23/2010-Pol.7959 DATED 28.2.2011. ANNEXURE R3(z) - TRUE COPY OF THE LETTER NO.805/21/C/23/2010-Po. DATED 2.3.2011 EXT.R3(aa) - TRUE COPY OF THE LETTER DATED 5.3.2011 FROM THE HONOURABLE CHIEF MINISTER TO THE HONOURABLE PRIME MINISTER OF INDIA. EXT.R3(ab) - TRUE COPY OF THE COMMUNICATION DATED 7.3.2011 FROM THE GOVERNMENT OF INDIA. EXT.R3(ac) - TRUE COPY OF THE LETTER DATED 19.03.2011. (EXHIBITS PRODUCED BY RESPONDENT NO.5 ALONG WITH I.A.NO. 4021/ 2011) EXT.R5(A) - TRUE COPY OF THE JUDGMENT IN W.A.NO.88 OF 2007 DATED 30.3.2007. EXT.R5(B) - TRUE COPY OF THE APPLICATION FILED BEFORE THE HON'BLE SUPREME COURT BY STATE OF KERALA ON 3.12.2008 IN C.A.NO.3088 OF 2004. EXT.R5(C) - TRUE COPY OF THE ORDER DATED 4.11.2009 IN C.A.NO.3088 OF 2004 OF THE H0ON'BLE SUPREME COURT. (EXHIBITS PRODUCED BY RESPONDENT NO.5 ALONG WITH COUNTER AFFIDAVIT) EXT.R5(a) - TRUE COPY OF WRIT APPEAL NO.101 OF 2007. EXT.R5(b) - TRUE COPY OF WRIT APPEAL NO.256 OF 2007. EXT.R5(c) - TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO.101 AND 256 OF 2007 DATED 30.03.2007. EXT.R5(d) - TRUE COPY OF SLP.NO.15222 OF 2007 FILED BY THE STATE OF KERALA (WITHOUT ANNEXURES). EXT.R5(e) - TRUE COPY OF THE NOTICE DATED 29.12.2006 ISSUED BY THE CENTRAL GOVERNMENT. W.P.(C).NO.6552 OF 2011-S - 4 - EXT.R5(f) - TRUE COPY OF THE ADDITIONAL DOCUMENT FILED BY THE STATE OF SIKKIM IN W.A.NO.256 OF 2007. EXT.R5(g) - TRUE COPY OF THE AFFIDAVIT FILED BY UNION OF INDIA IN SLP.NO.16136 OF 2010 EXT.R5(h) - TRUE COPY OF THE JUDGMENT IN W.A.NO.1464 OF 2010 DATED 14.10.2010. EXT.R5(i) - TRUE COPY OF THE NOTICE OF THE ASST. COMMISSIONER, PALAKKAD DATED 27.10.2006. EXT.R5(j) - TRUE COPY OF REPLY FROM MEGHA DISTRIBUTOR DATED 6.11.2006. EXT.R5(k) - TRUE COPY OF LETTER DATED 16.9.2006 OF THE STATE OF SIKKIM TO THE PRINTER. EXT.R5(l) - TRUE COPY OF THE REPLY DATED 20.09.2006 OF THE PRINTER TO THE STATE OF SIKKIM. EXT.R5(m) - TRUE COPY OF THE AGREEMENT DATED 26.7.99. - TRUE COPY - J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ---------------------------------------------------------- W.P.(C) Nos.6552 of 2011-S & 7251 of 2011-S --------------------------------------------------------- Dated this the 24th day of May, 2011 JUDGMENT J.Chelameswar, C.J. These two writ petitions revolve around a common issue. In substance, these two writ petitioners pray that this Court direct an investigation by the Central Bureau of Investigation into certain allegations. It is difficult to spell out precisely the nature of the allegations and it can only be indicated by quoting from the relevant portion of the appropriate pleadings in these two writ petitions. 2. In W.P.(C).No.6552 of 2011, it is stated that a vigilance enquiry was ordered by the State of Kerala. A report of the Vigilance Enquiry is annexed as Exhibit P1, which indicates as follows: “The enquiry report is concluded with the recommendation to take immediate steps to prohibit the sale of Bhutan lottery as well as Sikkim lottery within the State, as the same is being conducted in gross violation of the provisions of Section 4 of the Lotteries (Regulation) Act, 1998. There are other recommendations as well. Copy of the said report is produced herewith and marked as Exhibit P1”. WP.(C).Nos.6552/2011 & 7251/2011. - 2 - The petitioner complains that in spite of such a report and in spite of repeated representations before the Government of India from various quarters and also request by the State of Kerala, no action is taken to rectify the various infractions of law allegedly indicated in the above mentioned vigilance report. The petitioner, therefore, believes and stated in the writ petition as follows: “The petitioner understand that in response to a letter given by the Chief Minister of the State, the Union Minister for Home Affairs had replied to the State Government pointing out the procedure to be followed, the course to be resorted, etc. for invoking the powers under the Lottery (Regulations) Act 1998 so also under the Delhi Special Police Establishment Act. Even then the investigation sought or required to be conducted in protecting the interest of the gullible public has not yet commenced and those who are consciously violating the law are enabled to enjoy the fruits of the violations because of the lack of commitment shown by the State in punishing the guilty. There is no justification in continuing the said stalemate and enabling the culprits in continuing the commission of offence without answering the mandate of the law by those who have violated the same”. In substance, the petitioner believes that such a state of affairs exist because of the “lack of commitment” by the State Government in punishing the guilty. WP.(C).Nos.6552/2011 & 7251/2011. - 3 - 3. It may be mentioned here that the petitioner was a member of the Kerala Legislative Assembly when the writ petition was filed and belonged to a political group which was in opposition on the date of filing of the writ petition. 4. W.P.(C).7251 of 2011 is filed with various prayers, including a prayer to direct the C.B.I. to investigate into the various allegations pertaining to the conduct of lottery business in the State of Kerala. The petitioner claims to be a vendor of the lottery tickets and a member of the Kerala Lottery Agents and Sellers Welfare Fund. The substance of the grievance in this petition is that there are number of illegalities committed in the conduct of lotteries, the tickets of which are sold in the State of Kerala resulting into a great financial loss to the exchequer as well as various people including the vendors of the lottery tickets. The petitioner also relies upon the same vigilance report which was relied upon by the petitioner in the other writ petition. The petitioner claims to have made various representations to various authorities, including the Prime Minister of India, in this regard and laments that no action has so far been initiated. Certain allegations of mala fides are made against the 5th respondent which, according to the petitioner, are the reason for WP.(C).Nos.6552/2011 & 7251/2011. - 4 - the inaction of the Union of India and its agencies. 5. The conduct and sale of lottery tickets has been a major issue in the State of Kerala for a few years. It has wide ranging socio, economic and political ramifications, generating enormous litigations. The economic implications are mammoth. All the political parties functioning in the State of Kerala complain that there is something rotten about the conduct of lotteries and sale of lottery tickets in the State of Kerala - but the system goes on. 6. The timing of the filing of the two writ petitions is also a relevant factor to be placed on record. While W.P.(C). No.6552 of 2011 was presented on 1.3.2011, W.P.(C). No.7251 of 2011 was filed on 7.3.2011, just around the time when the process for the general election to the Legislative Assembly of Kerala commenced. 7. Though we have reason to believe that both the writ petitions have political overtones and motivated at least to some extent by considerations of either gaining some advantage at the hustings or preempting adverse propaganda during the course of electioneering, we are also of the opinion that the issue raised does have some element of public interest involved. Therefore, notices were ordered. WP.(C).Nos.6552/2011 & 7251/2011. - 5 - 8. Counter affidavits have been filed on behalf of the Union of India and its agencies and also some of the contesting respondents (organizers of the lottery). In the counter affidavit filed in W.P.(C).No.7251 of 2011 on behalf of respondents 1 and 5 by one Neeraj Kansal, Director, Ministry of Home Affairs, Government of India, though the Government of India joined issue of various factual allegations made in either of the above mentioned two writ petitions, it is specifically stated regarding the question of enquiry by C.B.I. at para 17 as follows:- “I state that as regards the prayer (i) in the writ petition concerning an enquiry by the CBI, it is submitted that the CBI falls under the administrative control of the Department of Personnel & Training (Ministry of Personnel, Public Grievances and Pensions). Upon receiving the letter of the Chief Minister, Kerala, the Home Minister vide his letter dated 29.12.2010 explained to the former the procedure for a case to be entrusted to the CBI. This position has been reiterated by the Department of Personnel & Training to the Government of Kerala. The answering respondent submits that, most recently, on 25.3.2011, the Department of Personnel wrote to the Government of Kerala expressing its willingness to request the CBI to take over the investigation of the lottery related cases as soon as the Government of Kerala makes the necessary notification under Section 6 of the DSPE Act and furnishes the information regarding the cases (FIR No., police station etc.) in the prescribed proforma. WP.(C).Nos.6552/2011 & 7251/2011. - 6 - It is submitted that the Government of Kerala should take necessary action in order to enable the DoP&T to advise the CBI to take over the lottery-related cases”. We may also place on record that Shri.Gopal Subramaniam, Solicitor General of India, appeared on behalf of the Government of India and made a very categoric statement that it is not necessary to enquire into the various allegations of mala fides made against the 5th respondent herein in view of the fact that the basic allegation that the Government of India is reluctant to have an enquiry conducted by the C.B.I. into the various allegations because of the 5th respondent is itself without any basis and that the Government of India is ready and willing to have an enquiry conducted into the various allegations. Shri.Gopal Subramaniam emphatically submitted that necessary instructions have already been issued to the C.B.I. to forthwith initiate appropriate action into the various allegations, more particularly in view of the specific letters written by the then Chief Minister of Kerala Shri.V.S.Achuthanandan dated 23.12.2010 and 2.3.2011. It may be mentioned here, there was a clear request from the then Chief Minister in both his letters seeking an investigation by the C.B.I. WP.(C).Nos.6552/2011 & 7251/2011. - 7 - The relevant portion of the letter dated 23.12.2010 reads as follows: “For the reasons mentioned in the above-mentioned letter, I would be grateful if you could kindly intervene in the matter, personally, in order to expedite the initiation of a thorough and comprehensive investigation covering all aspects of the matter including the earlier evasion of Sales Tax due to the State of Kerala, by the individuals involved, through the Central Bureau of Investigation, under the provisions of the Delhi Special Police Establishment Act, 1946”. The relevant portion of the letter dated 2.3.2011 reads thus: “I regret to state that I have not received any reply to my request for the initiation of a CBI Enquiry. In the meantime, certain allegations have been raised to the effect that my son V.A.Arun Kumar is instrumental in scuttling the initiation of the said CBI Enquiry. In the circumstances, I request you to kindly - (1) take immediate action for commencing the CBI Enquiry without any further delay. (2) enhance the scope of the enquiry to look into the possibility of anyone, including my son V.A.Arun Kumar, attempting to influence, delay or sabotage the said CBI enquiry. WP.(C).Nos.6552/2011 & 7251/2011. - 8 - (3) issue appropriate directions to the Union Home Minister to expedite action for invoking the Union Government's powers under Sec.6 of the Lotteries (Regulation) Act, 1998, for prohibiting the sale of illegal lotteries in Kerala under the provisions of the Lotteries (Regulation) Act, as requested by the Government of Kerala”. 9. Though the counter affidavit filed on behalf of the Union of India and its agencies is a little qualified regarding the stand of the Union of India, in that it indicates that the enquiry by C.B.I. could be ordered subject to certain conditions which are already noted earlier, the learned Solicitor General made it categorically clear that the C.B.I. is already instructed to take up the investigation irrespective of any shortcomings in the procedure adopted by the State while requesting for such action. 10. Though the arguments in the matter were concluded on 5.4.2011, we took a conscious decision not to pronounce this order immediately in view of the fact that the general election was within a week thereafter and whatever is recorded by this Court is likely to be used or abused for gaining the political advantage by somebody or the other. WP.(C).Nos.6552/2011 & 7251/2011. - 9 - In view of the counter affidavit filed by the Government of India and the emphatic statement made by the learned Solicitor General of India, the learned counsel appearing for both the petitioners submitted that they do not seek any further adjudication of the various other questions raised in the writ petitions and the matters be disposed of recording the undertaking given by the learned Solicitor General on behalf of the Union of India. Accordingly, both the writ petitions are disposed of. Sd/- J.Chelameswar, Chief Justice Sd/- P.R.Ramachandra Menon, Judge vku/-