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SUPREME COURT OF INDIA
O. CHINNAPPA REDDY, E.S. VENKATARAMIAH AND R.B. MISRA, JJ.
H. Anraj and others etc., Petitioners
Versus
State of Maharashtra, Respondent.
Civil Writ Petns. Nos. 2333 to 2336 of 1983 with W. Ps. Nos. 3537, 5195, 5213, 5262, 5847, 9505-10, 10724-25, 10770, 12537, 12545 and 12580 of 1983
Decided on 23-1-1984.
Advocates appeared for the Petitioners: -
Dr. L. M. Singhvi, Sr. Advocate; Mr. A. M. Singhvi; Mr. Vimal Dave & Mr. Krishna Kumar, Advocates with him, Mr. T. S. Krishnamurthy Iyer, Sr. Advocate, Mr. Naresh Kumar Sharma and Mr. Vineet Kumar, Advocates with him, Dy. Y. S. Chitale, Sr. Advocate (Not Present), Mrs. Sadhana Ramachandran & Mr. Raju Ramachandran, Advocates, Mr. Herjinder Singh (Not Present).
Advocates appeared for the Respondents: -
Mr. A. V. Rangam and Mrs. Sarla Chandra, Advocates for the State of Tamil Nadu; Mr. N. H. Gurusahani, Sr. Advocate, Mr. Ashwani Kumar, Mr. N. N. Keshwani & Mr. M. N. Shroff, Advocates with him, Mr. A. S. Nambiar, Advocates - Not Present.
Constitution of India,1950 - Article 258 (i), 246(1) and (3) and 298 – Indian Penal Code,1860 - Section 294-A - Bombay Lotteries (Control and Tax) and Prize Competitions (Tax) Act, 1958 - Section 32 – Keeping lottery office - Sale of tickets for the lotteries - Government of India, in giving permission for conducting State lotteries had made a condition that lottery tickets should not be sold in another State, without express consent of that State - No such permision has been given in Maharashtra for sale of outside State lottery tickets - Despite warning given by Minister, unauthorised sales of lottery tickets of outside States continues, and Government is therefore taking steps to stop these obviously unlawful practices by seizing all stocks of tickets of other States lotteries - Petitioners is that there is no legal authority for imposition of ban - It is argued that under Constitution Lotteries organised by Government of India or Government of a State is a subject which is within exclusive legislative competence of Parliament and that it is not open to Government of any State purporting to act in exercise of its executive power to impose such a ban as that sought to be imposed - On other hand, it is sought to be argued on behalf of Government of Maharashtra that Union Governments executive power is co-extensive with power of Parliament to make laws that President in exercise of his power – Held, Court have explained that there is no justification for first reading word lawfully into Entry 40 of List I and then proceedings to interpret expression "Lottery lawfully organised" as meaning lottery organised pursuant to entrustment of executive power of Union - It was observed "legislative power cannot be fed into Entry 34, by feeding word lawful into Entry 40 of List I and thus artificially restricting scope of Entry 40" - It was pointed out that if Government of a State organised a lottery without entrustment of executive power as contemplated by Article 258 or in disregard or defiance of any condition that may have been imposed while entrusting executive power under Article 258 it would never be a matter for legislature of one State to take upon itself power to declare unlawful lottery run by Government of another State and even less so could Government of a State declare unlawful a lottery run by Govt. of another State and thereafter ban sale of tickets of lotteries organized by that State. - Court cannot subscribe to this view - That would really amount to entrustment of vital legislative powers to State Government which would be constitutionally impermissible – Court do not think it necessary to refer in any further detail to decisions of Gujarat, Andhra Pradesh, Bombay and Madras decisions except to say that Court generally agree with reasoning in Gujarat and Andhra Pradesh decisions and disagree with reasoning in Bombay and Madras decisions - Petitions allowed.
JUDGMENT
CHINNAPPA REDDY, J.— The several petitioners in these writ petitions are agents for the sale of tickets for the lotteries conducted by the Governments of various States other than Maharashtra. They question the ban sought to be imposed by the Government of Maharashtra on the sale within the State of Maharashtra of tickets of lotteries conducted by the Government of other States. They, generally, seek a writ in the nature of a Mandamus directing the State of Maharashtra to forbear from interfering with the sale or distribution of lotteries tickets in respect of the lotteries organised by the Government of States other than Maharashtra.
2. There is no express notification or order of the Government of Maharashtra imposing a ban on the sale of lottery tickets of other States in the State of Maharashtra. The ban is sought to be spelt out from a press release of the Director of Publicity, Sachivalaya, Bombay dated September 24, 1969 and a communication dated August 24, 1981 addressed by the Government of Maharastra, Finance Department, to some of the petitioners individually. The Press release is as follows:
"SALE OF LOTTERY TICKETS OF OTHER STATES UNLAWFUL
Warning to Public
On September 16, the Minister for Finance in a Press Conference, followed by a press note, made it clear to agents who are selling lottery tickets that the sale of lottery tickets of other States in this State is unlawful. The Government of India, in giving permission for conducting State lotteries had made a condition that the lottery tickets should not be sold in another State, without the express consent of that State. No such permision has been given in Maharashtra for the sale of outside State lottery tickets. Despite the warning given by the Minister, unauthorised sales of lottery tickets of outside States continues, and the Government is therefore taking steps to stop these obviously unlawful practices by seizing all stocks of tickets of other States lotteries. The public are warned that no tickets other than the Maharashtra State lottery tickets can be sold within the Maharashtra State".
3. The communications addressed to the petitioners are in the following terms :
Sir,
I am directed to refer to your letter No. DA/PL/81/622, dated 22-6-1981 on the abovementioned subject and to state that there is ban on the sale of other State lottery tickets in State of Maharashtra. It is, therefore, regretted that your request to permit you to sell your State lottery tickets in this State cannot be accepted.
Yours faithfully,
Sd/-
State Lottery Officer,
Finance Department.
The basic submission on behalf of the petitioners is that there is no legal authority for the imposition of the ban. It is argued that under the Constitution Lotteries organised by the Government of India or the Government of a State is a subject which is within the exclusive legislative competence of Parliament and that it is not open to the Government of any State purporting to act in exercise of its executive power to impose such a ban as that sought to be imposed by the Government of Maharashtra. On the other hand, it is sought to be argued on behalf of the Government of Maharashtra that the Union Governments executive power is co-extensive with the power of Parliament to make laws that the President in exercise of his power under Article 258 (i) has entrusted to the Government of Maharashtra the executive power of the Union in respect of lotteries run by the State and therefore, it was competent for the Government of Maharashtra to impose the ban.
4. Entry 40 of List I of the VIIth Schedule to the Constitution is "Lotteries organised by the Government of India or the Government of a State". Entry 34 of List II of VIIth Schedule is "Betting and gambling". There is no dispute before us that the expression "Betting and gambling" included and has always been understood to have included the conduct of lotteries. Quite obviously the subject Lotteries organised by the Government of India or the Governm
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