COURT NO.1
HIGH COURT OF SIKKIM : GANGTOK
Record of Proceedings
WA No. 02/2022
SERENITY TRADES PVT. LTD. & ANR. APPELLANT (S)
VERSUS
UNION OF INDIA & ORS. RESPONDENT (S)
For Appellant : Mr. Zangpo Sherpa, Advocate.
Ms. Rachhitta Rai, Advocate.
For Respondent No.1 : Ms. Sangita Pradhan, Asst. Solicitor General.
For Respondents No. : Mr. Hissey Gyaltsen, Asst. Govt. Advocate.
2 and 3
Date: 10/03/2022
CORAM:
HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
...
JUDGMENT : (per the Hon'ble, the Chief Justice)
This appeal arises out of a judgment and order dated 07th December,
2021, passed by a learned Single Judge of this Court in WP(C) No.08 of 2019
(Serenity Trades Pvt. Ltd. & Anr. vs. Union Of India & Ors.).
By the impugned judgment and order, the learned Single Judge proceeded
to dismiss the writ petition with liberty to the writ petitioners to approach the
Civil Court for appropriate remedy, if they so desire.
The instant appeal has been preferred by the writ petitioners.
A plain reading of the impugned judgment and order reveals that the
learned Single Judge embarked on an in-depth exercise in order to appreciate
the issues sought to be raised before the Court. The Court came to a view that it
would not be correct to decide the issues raised in writ jurisdiction. Neither the
Organising States nor the distributor/selling agents were made parties. The
claim for refund was being made by the sole stockist of the distributor/selling
agents. The sole stockist of the distributor/selling agents would have, under
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the scheme of the Act and Rules, no hand in the pricing structure of the cost of
the lottery tickets. The learned Court was also of the view that refund of this
nature cannot be granted if the burden of the draw charges had been passed on
to a third party or the ultimate consumer. That apart, the learned Single Judge
also proceeded to observe, inter alia, that in order to determine whether or not
the burden of draw charges paid by the petitioners on behalf of the Organising
States had been passed on to the ultimate consumer, it was necessary to
examine the complex issue of pricing of the lottery tickets, which may not be
possible in writ jurisdiction.
For convenience, the two penultimate paragraphs of the impugned
judgment and order are quoted hereinbelow:
"28. In the present writ petition, neither the Organising States nor the distributor/selling agents have been made parties. The claim for refund is being made by the sole stockist of the distributor/selling agent. The sole stockist of the distributor/selling agent would have, under the scheme of the Act and the Rules, no hand in the pricing structure of the cost of the lottery tickets. It is settled that refund of this nature cannot be granted if the burden of the draw charges had been passed on to a third party or the ultimate consumer. Although the petitioners have filed affidavits stating that they had not passed on the burden, when it is for the Organising State to structure the pricing of the lottery tickets, it may not be possible to determine this lis without the Organising States and the distributor/selling agent. Further, the petitioner has sought to rely upon the agreements entered between the Organising States and the distributor/selling agent on the one hand and the agreement between the distributor/selling agent and the petitioner on the other without the parties to the agreement being brought before the Court. The agreements relied upon by the petitioner has been perused for a prima facie view only. It appears that to determine whether or not the burden of draw charges paid by the petitioner on behalf of the Organising States had been passed on to the ultimate consumer it is necessary to examine the complex issue of pricing of the lottery tickets which may not be possible in a writ jurisdiction. Furthermore, the issue involved here also requires an interpretation of these agreements between parties not before this Court. The only thing certain is that the petitioner had paid the draw charges. The State respondents have also raised the issue of limitation and seriously contested it.
29. In the circumstances, this Court is of the view that it would not be correct to decide the issues raised in writ jurisdiction. The writ petition, is therefore, dismissed. However, it is left open to the petitioner to approach the civil court for appropriate remedy if they so desire. In the event, the petitioner approaches the civil court, needless to say, the parties may plead and raise all necessary issues
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before the civil court. The observations made herein shall not come on the way of the civil court to decide the issues independently. The parties shall bear their
respective costs."
In an intra-Court Mandamus appeal, interference is usually warranted only
when palpable infirmities or perversities are noticed on a plain reading of the
impugned judgment and order. In the facts of the instant case, on a plain
reading of the impugned judgment and order, this Court does not notice any
such palpable infirmity or perversity. That apart and in any event, the impugned
judgment and order is supported with cogent and justifiable reasons. While
dismissing the writ petition, the learned Single Judge has left it open to the writ
petitioners (being the appellants herein) to approach the Civil Court for
appropriate remedy, if they so desire.
In such circumstances, we do not find any merit in the instant appeal,
which liable to be dismissed and stands accordingly dismissed.
(Meenakshi Madan Rai) (Biswanath Somadder)
Judge Chief Justice
jk/ds/ami
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