Full Judgment Text
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PETITIONER:
J. K. BHARATI
Vs.
RESPONDENT:
STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT23/07/1984
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1984 AIR 1542 1985 SCR (1) 201
1984 SCC (3) 704 1984 SCALE (2)53
ACT:
Constitution of India 1950, Article 14, Entry 40 of
List 1 of Schedule VII and Entry 34 of List 11 of Schedule
VII and The Bombay Lotteries (Control and Tax) and Prize
Competition (Tax) Act 1958, Section 32 (c).
Lotteries-’lotteries authorised but not organised by
the government of other states-Ban on sale of such lottery
tickets-Whether competent-Whether any discrimination
involved.
HEADNOTE:
The petitioner in their writ petitions to this Court
contested the ban on sale within the State of Maharashtra,
of tickets of lottories organised by the Indian Red-Cross
Society, Dadra and Nagar Haveli branch and authorised by the
administration of Dadra and Nagar Haveli.
Dismissing the writ petitions,
^
HELD: (1) (i) The Bombay Lotteries (Control and tax)
and Prize Competition (Tax) Act, 1958 is an Act to control
and tax lotteries and prize competition in the State of
Maharashtra. The Act contains detailed provisions for the
licensing, regulation and control of lottery within the
State of Maharashtra. Section 32(c), provides that nothing
in the Act shall apply to "a lottery specially authorised by
the State Government." [203G-H]
(ii) In the case of lotteries authorised by the
Government of Maharashtra, the Government of Maharashtra may
retain to itself all necessary powers for the regulation and
control and the prevention of misuse of fund and
exploitation of guileless members of the public. In the case
of lotteries authorised by the Government of other States it
may be difficult and even impossible for the Government of
Maharashtra to take adequate regulatory steps to prevent
abuse of the authority given by Governments of other States
to non-Governmental agencies to organize lotteries. It may
be equally difficult for the Governments of other States to
take
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adequate measures for prevention of abuse of such authority
within the State of Maharashtra. [204C-D]
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2. No hostile discrimination whatever is involved in
not extending the exemption from the applicability of the
Bombay Lotteries (Control and Tax) and Prize Competition
(Tax) Act, 1958 ’to lotteries authorised but not organized
by the Government of other States’. [204D]
3. Lotteries organised by the Government of India or
the Government of the State have been taken out from Entry
34 of List II of Schedule VII by Entry 40 of List 1. There
is, therefore no question about the competence of the
Legislature of Maharashtra to legislate in respect of the
sale or distribution, in the State of Maharashtra, of
tickets of all lotteries organized by any agency whatsoever
other than the Government of India or the Government of a
State. [203E-F]
H. Anraj and others v. State of Maharashtra, explained.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) Nos.
12820, 12592,12714, 12736, 12747,12821,13035 and 13022 of
1984.
(Under Article 32 of the Constitution of India).
Dr. Y. S. Chitale, Vimal Dave, Randhir Singh O. Swamy,
Vineet Kumar, N. K. Sharma, Ms. Deepika Saxena. S. M. Ashri
and M. Veerappa for the Petitioners.
N. H. Gursahani and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. This order is virtually a
postscript to our judgment in H. Anraj and Ors. v. State of
Maharashtra What was in question in H. Anraj and Ors. v.
State of Maharashtra was the ban imposed by the Government
of Maharashtra on the sale of tickets of lotteries conducted
by the Government of other States in the State of
Maharashtra. What is presently in question in the writ
petitions before us is the ban on the sale of tickets of
lotteries authorised but not organized by the Governments of
other States. Specifically, we are concerned with the ban on
sale, within the State of Maharashtra, of tickets of
lotteries organised by the Indian Red Cross Society, Dadra
and Nagar Haveli branch and authorised by the administration
of Dadra and Nagar Haveli. In Anraj and Ors. v. State of
Maharashtra we held that the subject"
203
"Lotteries organised by the Government of India or the
Government of a State" had been taken out from the
legislative field, comprised by the expression "Betting and
Gambling" in Entry 34 of List II of Schedule VII and was
reserved to be dealt with by Parliament under Entry 40 of
List I of Schedule VII. Even so, we held, Art. 298 of the
Constitution left the Government of a State free to carry on
any trade or business in respect of which it may not have
the power to make laws, but that the power to carry on such
trade or business shall be subject to legislation by
Parliament. Therefore, we said, in the absence of
Parliamentary legislation, the Government of every State had
the unrestricted right to organise lotteries and this right
was not subject to the executive power of the Government of
India or the executive and legislative powers of other
States. Consequently, we held that the Government of
Maharashtra did not have the right to impose a ban on the
sale and distribution of tickets of lotteries organised by
other States in the State of Maharashtra. In the instant
cases, we are concerned not with the ban on lotteries
organised by the Governments of other States but with the
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ban on lotteries authorised by such Governments and
organised by institutions and persons other than the
Governments. The source of power is not in question. It is
to be found in Entry 34 of List II of Schedule VII which
empowers the State legislature to make laws in respect of
"Betting and Gambling", which expression has always been
held to include the conduct of lotteries. While lotteries
organised by the Government of India or the Government of a
State have been taken out of Entry 34 of List II of Schedule
VII by Entry 40 of List I, there is no question about the
competence of the Legislature of Maharashtra to legislate in
respect of the sale or distribution, in the State of
Maharashtra, of tickets of all lotteries organised by any
agency whatsoever other than the Government of India or the
Government of a State.
The Bombay Lotteries (Control and Tax) and Prize
Competition (Tax) Act, 1958 is an Act to control and tax
lotteries and prize competition in the State of Maharashtra.
Section 3 of the Act declares: "Save as provided by the Act,
all lotteries are unlawful." The Act contains detailed
provisions for the licensing, regulation and control of
lotteries within State of Maharashtra. By Sec. 32 (c), it is
provided that nothing in the Act shall apply to "a lottery
specially authorised by the State Government." The
submission of Dr. Chitale, learned counsel for the
petitioners, was that the exemption from the applicability
of the Act granted to lotteries "especially authorised by
the State Government", that is, by the
204
Government of Maharashtra, was discriminatory; the exemption
should be extended to all lotteries authorised by the
Government of any State whatsoever. Article 14 of the
Constitution is invoked in aid of the submission; the reason
for exempting lotteries authorised by the Government of
Maharashtra from the applicability of the Act and not
lotteries authorised by the Governments of other States is
patent. In the case of lotteries authorised by the
Government of Maharashtra, the Government of Maharashtra may
retain to itself all necessary powers for the regulation and
control and the prevention of misuse of funds and
exploitation of guileless members of the public. In the case
of lotteries authorised by the Governments of other States
it may be difficult and even impossible for the Government
of Maharashtra to take adequate regulatory steps to prevent
abuse of the authority given by Governments of other States
to non-Governmental agencies to organise lotteries. It may
be equally difficult for the Governments of other States to
take adequate measures for prevention of abuse of such
authority within the State of Maharashtra. We are,
therefore, satisfied that no hostile discrimination whatever
is involved in not extending the exemption from the
applicability of the Act to lotteries authorised but not
organised by the Governments of other States. The Writ
Petitions are accordingly, dismissed with costs.
N.V.K. Petition dismissed.
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