BHARATI H. DANGRE, J.

1. Rule. Rule returnable forthwith.

2. The petitioner, proprietor of Sri Mangal Murti Marketing and carrying on business as a Sub-Distributor of State organized lottery of Government of Arunachal Pradesh and Nagaland has approached this Court seeking a declaration to the effect that Maharashtra Tax on Lotteries Act, 2006 be declared as void, being ultra vires to the provisions of Constitution. A direction is also sought to the Respondent State to restrain itself from levying and/or collecting tax on sale of lottery tickets in State of Maharashtra. The said Writ Petition came to be admitted on 27th June 2007 and an interim direction was issued to the effect that the State shall not levy or collect any taxes from the petitioner and it shall not obstruct the petitioner as long as it is carrying on lawful business.

The Division Bench of this Court was pleased to dispose of the Writ Petition by an order dated 29th November 2016 in view of the fact that the challenge in the writ petition was already covered by a judgment delivered by the Division Bench (D.K. Deshmukh and R.S. Mohite, JJ) in group of petitions in case of N.V. Marketing Pvt. Ltd Vs. State of Maharashtra and ors decided on 14th August 2009.

The petitioner, however, filed a Review Petition (Civil) No.10 of 2017 along with an application for condonation of delay. This Court, on 23rd March 2017, condoned the delay and was also pleased to restore the Writ Petition to its file. This order came to be passed when it was noted that a Division Bench in the High Court of Karnataka at Bangalore had delivered a judgment in WA No.2251 of 2007 and connected matters filed in the High Court of Karnataka at Bangalore and one of the learned Judge (Hon'ble Chief Justice Dr. Manjula Chellur, J) was a party to the said judgment. The said Division Bench of the High Court of Karnataka had taken a view divergent to the decision delivered by the High Court of Judicature at Bombay in case of N.V. Marketing Pvt. Ltd Vs. State of Maharashtra. In view of the contrary opinion expressed by the two Division Benches and since one of the Hon'ble Judge was a party to the decision, the Writ Petition was restored.

This is how the matter was listed before us for final hearing.

3. We have heard the learned Senior counsel, Shri P.S. Raman i/b B.B. Parekh for the petitioner and Advocate General Shri Ashutosh Kumbhakoni with Ms. Geeta Shastri for the State. We have perused the Writ Petition which poses a challenge to the Maharashtra Act No.53 of 2006 i.e. Maharashtra Tax on Lotteries Act, 2006. The precise ground on which the said Act has been assailed is an allegation that the said Enactment is passed with an object of doing indirectly what cannot be done directly i.e. restriction/prohibition of sale of lottery tickets in the State of Maharashtra of the lotteries organized by other State. The learned Senior counsel invited our attention to the backdrop of the events which culminated into enacting the said legislation. The case of the petitioner is that in respect of the sale of lottery tickets by the petitioner in the State prior to the said enactment when the Bombay Sales Tax Act was in force, the petitioner was paying tax in respect of sale of such lottery tickets in State of Maharashtra in accordance with the law laid down by the Hon'ble Apex Court in case of B.R. Enterprises Vs. State of Uttar Pradesh., AIR 1999 SC 1867 However, subsequent to the abolition of the Sales Tax by the Maharashtra Value Added Tax Act 2002, there was no tax payable in respect of sale of said lottery tickets. It is the specific case of the petitioner, as set out in the petition that the first respondent always attempted to restrict/prohibit sale of lottery tickets in the State of Maharashtra, in respect of sale of the sale of lottery tickets on the lotteries organized by other States by amending the