1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.432 OF 2007 [ENTITY] Petitioner. vs. [ENTITY] & others. Respondents. ig AND WRIT PETITION NO.435 OF 2009 M/s.[ENTITY]. Petitioner. vs. 1.The [ENTITY] & others. Respondents. AND WRIT PETITION NO.533 OF 2007 M/s.[ENTITY]. Petitioner. vs. 1.The [ENTITY] & ors. Respondents. Downloaded on - 09/06/2013 14:53:59 2 AND WRIT PETITION NO.629 OF 2007 [ENTITY] Petitioner. vs. 1.The [ENTITY] & others. Respondents. ig AND WRIT PETITION NO.1111 OF 2007 M/s.[ENTITY]. Petitioner. vs. 1.The [ENTITY] & ors. Respondents. AND WRIT PETITION NO.1126 OF 2007 M/s.[ENTITY] Petitioner. vs. 1.The [ENTITY] & others. Respondents. Downloaded on - 09/06/2013 14:53:59 3 AND WRIT PETITION NO.1127 OF 2007 M/s.[ENTITY] Petitioner. vs. 1.The [ENTITY] & others. Respondents. ig AND WRIT PETITION NO.425 OF 2009 M/s.[ENTITY] Petitioner. vs. 1.The [ENTITY] & ors. Respondents. AND WRIT PETITION NO.436 OF 2009 [ENTITY]. Petitioner. vs. 1.The [ENTITY] & ors. Respondents. Downloaded on - 09/06/2013 14:53:59 4 AND WRIT PETITION NO.444 OF 2009 M/s.[ENTITY] Petitioner. vs. 1.The [ENTITY] & ors. Respondents. ig Dr.[ENTITY] with [ENTITY] & [ENTITY] i/b. Ram & Co., for Petitioners in WP Nos.413/09, 533/09, 1111/07, 1126/07, 436/09, 425/09, 1127/07. Mr.[ENTITY] i/b. Ram & Co., for Petitioners in WP 435/09. Mr.[ENTITY], Sr. Advocate i/b. B.B.Parikh, for Petitioners in WP 432/07. Mr.[ENTITY] i/b. Thakore Jariwala & Associate, for Petitioners in WP 629/07. Mr.[ENTITY], Sr.Advocate with Ms.[ENTITY], AGP for Respondent-State in WP 435/07 & 436/09. Mr.[ENTITY] with Ms.[ENTITY], AGP for Respondent-State in WP 432/07 & 533/07, 629/07, 1111/07, 1126/07, 1127/09, 425/09 & 444/09. Downloaded on - 09/06/2013 14:53:59 5 CORAM: [ENTITY] & [ENTITY], JJ. DATED: 14th August,2009. JUDGMENT:
(PER [ENTITY], J)
1. In all theses petitions the constitutional validity of the [ACT] been challenged and therefore, all these petitions can be conveniently disposed of by common order.
2. The petitioners are the distributors of lottery tickets for sale in State of Maharashtra, of various States organizing, conducting and promoting their own lotteries in India. The Respondent-State Government is also organizing, conducting and promoting its own lotteries. It is submitted that the State of Maharashtra firstly levied and imposed sales tax on lottery tickets of the lotteries organized by the other State Governments by treating the lottery tickets as goods. However, when it was held that lottery tickets are not goods, the sales tax imposed on lottery tickets was withdrawn by the State Government and the [ACT] (hereinafter referred to as the [ACT] ) was enacted.
3. It is the contention of the petitioners that the legislature of State of Maharashtra has no legislative power to enact Laws relating to State Lotteries including ig Laws relating to taxation, and therefore, according to the petitioners, the [ACT] is beyond the legislative competence of the legislature of State of Maharashtra. The second submission is that the enactment of the [ACT] is colourable exercise of the legislative power inasmuch as it is another method of levying tax on lottery tickets. The third submission is that the [ACT] seeks to levy tax on lottery schemes, tax is collected in advance in respect of each draw in the lottery scheme at the rate specified in [SECTION] of the [ACT]. It is submitted that lottery scheme of all other State organizing and conducting lotteries save and except that of Maharashtra are formulated outside the State of Maharashtra and therefore, the Law has extra territorial application. The fourth submission is that the [ACT] levies tax on lottery schemes but the term lottery scheme is not defined anywhere and therefore, it is violative of guarantee under [SECTION] of the [ACT]. It was also contended that the [ACT] has been enacted to impose tax on sale of lottery tickets conducted by other States in State of Maharashtra so as to make selling of lottery tickets by the other States uneconomical, unviable and thereby creating monopoly in the lottery tickets of the lotteries conducted by the State of Maharashtra.
4. Elaborating the first submission, the learned Counsel appearing for petitioners submitted that the legislature of State of Maharashtra has no legislative competence to enact the impugned Act. By the impugned Act, tax is sought to be levied on the lottery schemes. The subject Lotteries organised by the Government of India or the Government of a State comes in [SECTION] in the [SECTION] of the [ACT], and therefore, only Parliament is empowered to enact Law relating to lotteries governed by Government of India or the Government of a State or any law relating to such tax on the lotteries. It is submitted that the State legislature does not have competence to levy tax on the lotteries under [SECTION] of the [ACT]. The learned Counsel relied on the judgments of the Supreme Court in the cases [PRECEDENT] and [PRECEDENT] and it was submitted that the lotteries organized by the State are necessarily excluded from betting and gambling mentioned in [SECTION], and then it was contended that the State of Maharashtra has not shown any other source of power except [SECTION] and therefore, the [ACT] is beyond its legislative competence.
5. Elaborating the second submission, it was submitted that prior to the decision of the [ACT] Bench of the Supreme Court in the case [PRECEDENT] , the State of Maharashtra has been collecting tax on State lottery tickets treating lottery tickets as goods . However, once it was held to be unconstitutional as lottery tickets were held not to be the goods, now again tax is being collected on sale of lottery tickets under the provisions of the [ACT].
6. Elaborating the third submission, it was contended that the [ACT] seeks to levy and collect tax on lottery schemes. It was submitted that the lottery schemes of other States organizing and conducting lotteries save and except that of State of Maharashtra are formulated outside State of Maharashtra and in the respective State organizing and conducting lotteries and the draws in respect of the said schemes are also held in the said States itself and the results are also declared in the said States and published in the official Gazettes of the said States. Thus, by seeking to charge and collect tax on lottery schemes, the [ACT] seeks to tax events which have occurred outside the State and hence, the [ACT] is dealing with the subject which is not within its territorial jurisdiction.
7. Elaborating the fourth submission, it was contended that though tax is imposed in relation to the schemes, the term Scheme is not defined in the Act. Thus, the tax is being levied with reference to the concept which is extremely vague and therefore, levying of tax in such a situation violates the guarantee of [SECTION] of the [ACT]. It was also submitted that extremely large amount has been collected as tax under the Act with a view to make it uneconomical to sell tickets of lotteries conducted by other States in the State of Maharashtra with a view to create monopoly in relation to the lottery tickets of the lotteries conducted by State of Maharashtra.
Thus, according to the petitioners, it is colourable exercise of legislative power.
8. On behalf of the Respondent-State of Maharashtra, on the other hand, it was contended that the [ACT] has been enacted under [SECTION] of the [ACT] relying on the Judgment of the Supreme Court in the Case [PRECEDENT]
And others, (2004)10 Supreme Court Cases 201 . It was contended that considering the constitutional scheme, it cannot be said that the State legislature does not have competence to enact the [ACT]. The learned Counsel took us through the provisions of the Act to show that by reading the definition of term lottery it becomes clear that what is the meaning of term scheme used in [SECTION] of the [ACT]. It was pointed out that it cannot be said that there is any vagueness in this matter. It was then submitted that the tax is not being collected on sale of lottery tickets but the tax is collected in relation to the lottery schemes once tickets are imported in the State of Maharashtra. It was submitted that there is no material placed by the petitioners on record as to how, because of the tax imposed, the business of sale of lottery tickets of the lotteries conducted by the other States in the State of Maharashtra becomes unviable, and therefore, the contention raised on that basis cannot be considered.
9. Now, in order to consider the first submission in relation to the legislative competence of the legislature of State of Maharashtra to enact the [ACT], in our opinion, it becomes necessary to first refer to the Scheme of the [ACT]. [SECTION] of the [ACT] is the charging section which reads as under:-
3. (1) There shall be levied and collected a tax on the lottery schemes specified in column (2) of the Table hereunder, at the rates specified against them in column (3) of the said Table:-
TABLE No. Lottery Schemes Rate of Tax 1 Weekly lottery scheme 50,000 2 Fortnightly lottery scheme or any 1,00,000 lottery scheme between week and fortnight 3 Monthly lottery scheme or any 2,00,000 lottery scheme of any duration exceeding fortnight 4 Bumper lottery scheme 10,00,000 (2) The tax levied under sub-section (1) shall be paid by the Promoter.
Perusal of the above quoted [SECTION] shows that tax is levied and collected on the lottery schemes specified in [SECTION] of the Table. Perusal of [SECTION] of the table shows that the Act contemplates four kinds of lottery schemes viz. (i) Weekly lottery scheme, (ii) fortnightly lottery scheme, (iii) monthly lottery scheme and (iv) bumper lottery scheme. Though the term scheme has not been defined in the Act, the term lottery has been defined by [SECTION] of the Act which reads as under:-
2. In this Act, unless the context otherwise requires-
(d) lottery means a scheme, in whatever form and by whatever name called, for distribution of prizes by lot or chances to those persons participating in the chances of a prize, by purchasing tickets, conducted as per the provisions of the [ACT]
Perusal of the above definition shows that Lottery means a scheme for distribution of prizes by lot or by chance. It is, thus, clear that lottery is nothing but a scheme for distribution of prizes by lot or chance. It is clear from the provision of [SECTION] of the Act that the tax levied under [SECTION] of the Act has to be paid by the Promoter. The term Promoter is defined under [SECTION] of the Act, which reads as under:-
2(f) Promoter means the Government of any State or an Union Territory or any country organizing, conducting or promoting a lottery and includes any person appointed as first importer for marketing lottery tickets in the State of Maharashtra on behalf of such Government or country where such Government or country is not directly marketing or conducting lottery schemes in the State.
From the definition of the term Promoter it is clear that the promoter can be either the Government of any State or an Union Territory or any country which is organizing a lottery and it can also be a person who has been appointed as first importer for marketing lottery tickets in the State of Maharashtra by such Government, Union territory or country. The petitioners, in this petition, claim to be the promoters. The Respondent-State is relying on [SECTION] of the [ACT] which reads as under:-
62. Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling.
Petitioners do not dispute that the lottery is betting. According to them, under [SECTION], the State legislature does not have power to impose tax on lottery because of [SECTION]. [SECTION] reads as under:-
40. Lotteries organised by the Government of India or the Government of a State.
According to the petitioners, because the power to legislate in relation to lotteries organised by the Government of India or the Government of State is vested in Parliament, the State legislature cannot impose tax in exercise of its legislative power under [SECTION] in relation to the lotteries. It is submitted that [SECTION] of the [ACT] empowers the State Government to legislate in relation to betting and gambling, but because of [SECTION] of the [ACT], lottery is excluded from the ambit of the term betting in [SECTION] and it also stands excluded from the ambit of the term betting in [SECTION]. In our opinion, the entire argument is misconceived and against the settled law. In nutshell, the argument of petitioners is that because of [SECTION], the Parliament has power to regulate lotteries run by the State Government, and therefore, it excludes State lotteries from the ambit of the term Betting not only from [SECTION] but also from [SECTION]. The scheme underlying the [SECTION] of the [ACT] has been considered in a judgment by the [ACT]al Bench of the Hon ble Supreme Court in the case [PRECEDENT] . The observations of the Hon ble Supreme Court in paragraphs 74, 75 and 76 are relevant, they read as under:-
74. It is necessary to examine the scheme underlying the [SECTION] of the [ACT]. We are relieved of the need of embarking upon any maiden voyage in this direction in view of the availability of a [ACT] Bench decision in [PRECEDENT], [ENTITY], J., speaking for the [ACT] Bench, traced the history of legislations preceding the [ACT], analysed the scheme underlying the division of legislative powers between the Centre and the States and then succinctly summed up the quintessence of the analysis. It was held, inter alia:ig
1.In [SECTION] Entries 1 to 81 mention the several matters over which Parliament has authority to legislate. Entries 82 to 92 enumerate the taxes which could be imposed by a law of Parliament. An examination of these two groups of entries shows that while the main subject of legislation figures in the first group, a tax in relation thereto is separately mentioned in the second.
2.In list II Entries 1 to 44 form one group mentioning the subjects on which the States could legislate. Entries 45 to 63 in that list form another group, and they deal with taxes. (AIR p.493, para 51)
3.Taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of [SECTION] in [SECTION] of the [ACT]. Under the Scheme of the entries in the lists, taxation is regarded as a distinct matter and is separately set out. (AIR 494, paras 51 & 55)
4.The entries in the legislative lists must be construed broadly and not narrowly or in a pedantic manner.(AIR p.494, para 56)
5.The entries in the two lists Lists I and II must be construed, if possible, so as to avoid conflict. Faced with a suggested conflict between entries in [SECTION], what has first to be decided is whether there is any conflict.
If there is none, the question of application of the non obstante clause subject to does not arise. And, if there be conflict, the correct approach to the question is to see whether it was possible to effect a reconciliation between the two entries so a s to avoid a conflict and overlapping.
Illustration If it is possible to construe [SECTION] as not including tax on inter-State sales it should be so construed and the power to levy such tax must be held to be included in [SECTION] in [SECTION] (entries as they existed per- Forty-second Amendment, 1976). (See Governor General in [PRECEDENT] and [PRECEDENT]. (AIR p.495, paras 56-57)
6. In the event of a dispute arising it should be determined by applying the doctrine of pith and substance to find out whether between two entries assigned to two different legislatures the particular subject of the legislation falls within the ambit of the one or the other. Where there is a clear and irreconcilable conflict of jurisdiction between the Centre and a Provincial Legislature it is the law of the Centre that must prevail.
75. Referring to M.P.V.Sundararamier & Co.
[ENTITY], J. (as His Lordship then was) speaking for six out of the seven Judges constituting the Bench in Synthetics and Chemicals Ltd. V. State of U.P. held that under the constitutional scheme of division of powers in the [SECTION], there are separate entries pertaining to taxation and other laws. A tax cannot be levied under a general entry.
76. The abovesaid principles continue to hold the field and have been followed in cases after cases.
General Power of regulation and control does not include power of taxation.
Applying the principles laid down by the Supreme Court in the above said paragraphs to the present case, it can safely be said that because of [SECTION], the State legislature does not have power to legislate in relation to the lotteries organized by the Government of India or Government of State under [SECTION], but because of that the State legislature will not lose its power under [SECTION] to impose tax in relation to the lotteries organized by the Government of India or other State under [SECTION] treating it as betting. There is no debate before us on the question that lottery amounts to betting and it was the admitted position.
10. It was then contended before us that though there is specific power vested in the State legislature under [SECTION], because of [SECTION] of the [ACT], the Parliament will have legislative competence to levy tax under [SECTION] and [SECTION] in [SECTION] of the [ACT]. In our opinion, this submission has also no force, because power to tax is not an incidental power and under the residuary power the Parliament will be entitled to impose tax only if that power is not specifically vested in the State legislature by any entry in [SECTION]. We can draw support for this conclusion reached by us, by what is observed by the Supreme Court in paragraphs 100 to 107 of its judgment in the case of [PRECEDENT] And others referred to above, they read as under:-
100. [SECTION] mandates no tax shall be levied or collected except by authority of law. The igscheme of the [SECTION] reveals an exhaustive enumeration of legislative subjects, considerably enlarged over the predecessor [ACT].
[SECTION] in [SECTION] confers residuary powers on Parliament. [SECTION] of the [ACT] which speaks of residuary powers of legislation confers exclusive power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or the State List. At the same time, it provides that such residuary power shall include the power of making any law imposing a tax not mentioned in either of those lists. It is, thus, clear that if any power to tax is clearly mentioned in [SECTION], the same would not be available to be exercised by Parliament based on the assumption of residuary power. The seven-Judge Bench in Union of India V. Harbhajan Singh [ENTITY] ruled, by a majority of 4:3, that the power to legislate in respect of a matter does not carry with it a power to impose a tax under our constitutional scheme. According to [ENTITY] ([ACT]al Law of India, 4th/Silver Jubilee Edn. Vol.3, para22.191):
22.191. Although in [ENTITY] case conflicting view were expressed about the nature of the residuary power, the nature of that power was stated authoritatively in [ENTITY] case. Earlier, in [ENTITY] case, [ENTITY], C.J. (for himself, [ENTITY], [ENTITY], [ENTITY] and [ENTITY], JJ.) had held that [SECTION] only provided the procedure for the amendment of the [ACT], but that the power to amend the [ACT] was to be found in the residuary power conferred on Parliament by [SECTION] and [SECTION] read with [SECTION] and by [SECTION].
Seven out of the nine Judges who overruled [ENTITY] case held, inter alia, that the power to amend the [ACT] could not be located in the residuary powers of Parliament. [ENTITY] and [ENTITY], JJ. held that
It is obvious that these lists have been very carefully prepared. They are by and large exhaustive. [SECTION] in [SECTION] was included to meet some unexpected and unforeseen contingencies. It is difficult to believe that our [ACT]-makers who were keenly conscious of the importance of the provision relating to the amendment of the [ACT] and debated that question for several days, would have left the important power hidden in [SECTION] leaving it to the off chance of the courts locating that power in that entry. We are unable to agree with those learned Judges when they sought to place reliance on [SECTION], [SECTION] and [SECTION] and [SECTION] for the purpose of locating the power of amendment in the residuary power conferred on the Union.
(emphasis in original)
101. Similar views were expressed by five other Judges. According to [ENTITY]:
"The law laid down in [ENTITY]'s Case is that if a subject of legislation was prominently present to the minds of the framer of our [ACT], they would not have left it to be found by courts in the residuary power. It is submitted that a fortiori, if a subject of legislative power was not only present to the minds of the framers but was expressly denied to Parliament, it cannot be located in the residuary power of Parliament."
102. Vide para 22.194 the eminent jurist poses a question:
22.194. Does [SECTION] add anything to the exclusive residuary power of Parliament under [SECTION], to make ig laws in respect of "any other matter" not mentioned in [SECTION], including any tax not mentioned in those Lists?"
and answers by saying "The answer is 'No'."
103. As to the riddle arising in the context of mines and mineral development legislation by reference to the Entries in [SECTION], [ENTITY] states:
"The regulation of mines and mineral development is a subject of exclusive State legislation, but for the limitation placed upon that power by making it subject to the provisions in that behalf in [SECTION] If Parliament does not exercise its power under [SECTION], the States' power under Entry 23, [SECTION] would remain intact. If Parliament exercised its power under [SECTION], only on a part of the field, as for example, major minerals, the States' legislative power over minor minerals would remain intact." (para 22.195 at p.2433) Power to tax must be express, else no power to tax
104. There ig is nothing like an implied power to tax. The source of power which does not specifically speak of taxation cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. States Cooley in Taxation (Vol.1, 4th Edn):
"There is no such thing as taxation by implication. The burden is always upon the taxing authority to point to the act of assembly which authorizes the imposition of the tax claimed." (para 122 at p.278).
105. Justice [ENTITY] in Principles of Statutory Interpretation (Eighth Edition, 2001) while dealing with general principles of strict construction of taxation statutes states : "A taxing statute is to be strictly construed. The well established rule in the familiar words of Lord [ENTITY], reaffirmed by Lord [ENTITY] and Lord [ENTITY], means : "The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words". In a classic passage Lord [ENTITY] stated the principle thus : "If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of law the case might otherwise appear to be. In other words, if there be admissible in any statute, what is called an equitable construction, certainly, such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute. [ENTITY] quoted with approval a passage from [ENTITY], J. expressing the principle in the following words : "In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax.
There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." (at p.635)
106. The judicial opinion of binding authority flowing from several pronouncements of this Court has settled these principles:
(i) in interpreting a taxing statute,
equitable considerations are entirely out of place. Taxing statutes cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the Section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. There is nothing unjust in the tax-payer escaping if the letter of the law fails to catch him on account of Legislature's failure to express itself clearly. (See, Justice [ENTITY], ibid, pp.638-639).
107. Power to tax is not an incidental power. According to [ENTITY], although legislative power includes all incidental and subsidiary power, the power to impose a tax is not such a power under our [ACT]. It is for this reason that it was held that the power to legislate in respect of inter- state trade and commerce ([SECTION]) did not carry with it the power to tax the sale of goods in inter-state trade and commerce before the insertion of [SECTION] and such power belonged to the States under [SECTION] in [SECTION]. [SECTION] in [SECTION] also militated against the contention that the power to tax is an incidental power under our [ACT] (See:
[ENTITY] H.M.:[ACT]al Law of India, 4th/Silver Jubilee Edn, Vol.3, para 22.20) (emphasis supplied).
It is clear from the above quoted observations that if the power to tax in relation to a subject is clearly mentioned in [SECTION] of the [ACT], the same would not be available to be exercised by the Parliament based on the assumption of residuary power. [SECTION] specifically empowers the State legislature to impose tax in relation to the lotteries because admittedly the lotteries are included within the ambit of the meaning of the term betting . It cannot be said that the Parliament gets legislative competence to impose tax in relation to the lotteries because of the residuary [SECTION] in [SECTION]. [SECTION] confers legislative competence on the State legislature to legislate regulating betting and gambling. As observed above, before us it is an admitted position that the lottery is included within the ambit of meaning of the term betting , therefore, had there been no [SECTION], the State legislature would have got, because of [SECTION], competence to legislate in relation to organisation and regulation of the lotteries organised by the State Governments also. The State legislature cannot make law under [SECTION] in relation to organisation and regulation of lotteries organised by Government of India and Government of State, because of [SECTION] of the [ACT] by that entry organisation and regulation of lotteries organised by Government of India and Government of State is excluded from the ambit of [SECTION] of the [ACT]. In other words, so far as the term betting appearing in [SECTION] is concerned, it gives legislative competence to the State legislature to enact law regulating lotteries which may not be organised by the Government of India or Government of State. Thus, from the ambit of the term betting appearing in [SECTION] of the [ACT], competence to legislate in relation to organisation and regulation of lotteries organised only by the Government of India and the Government of State has been excluded. Perusal of [SECTION] of the [ACT] shows that it confers legislative competence on State legislature to impose tax among other things on betting and gambling.
Thus, there is specific entry made in [SECTION] of the [ACT] conferring power on the State legislation to legislate imposing tax on betting and gambling. There is no specific entry in [SECTION] like [SECTION] of the [ACT] conferring legislative competence on the Parliament to impose tax on betting and gambling and therefore, the lotteries organised by the Government of India and State Government will not stand excluded from the meaning of the term betting occurring in [SECTION] of the [ACT]. Therefore, we find that there is specific entry in [SECTION] of the [ACT] conferring legislative competence on the State legislature to impose tax in relation to the lotteries. In view of the law laid down by the Supreme Court in its judgment in the case [PRECEDENT] And others referred to above the Parliament cannot be said to have power to impose tax in relation to lotteries under residuary [SECTION] of [SECTION] of the [ACT]. Thus, we find that there is absolutely no substance in the contention that the State legislature did not have competence to legislate the [ACT] under [SECTION] of the [ACT].
11. Now so far as the submission that the [ACT] in fact levies tax on sale of lottery tickets is concerned, in our opinion, this submission also does not have any substance. Looking to the scheme of the Act, it is clear that Draw is used only as a measure of tax. What is said to be taxed is betting and gambling. From the preamble of the [ACT] it is clear that levy and collection of tax is on the lotteries (betting and gambling). The tax , as defined under the State legislation, means the tax levied and collected on lotteries. The Act does not levy tax on Draws or sale of tickets, the levy of tax is on betting and gambling which is offered within the State of Maharashtra by organising sale of tickets for participation in the lottery. The measure of levying of tax depends upon as to whether the lottery organised is relating to weekly draw, monthly draw or bumper draw. It is, thus, clear that levying of tax is not on the draw which takes outside the State. The draw is only a measure of tax and the tax is not imposed on the draw itself.
12. We do not find any vagueness in the scheme of the Act. Merely because the term Scheme is not defined, the provisions under [SECTION] of the Act do not become vague.
13. So far as the submission that exercise of legislative power is colourable is concerned, in our opinion, once we find that there is clear legislative competence in the State legislature to legislate, there is no exercise of power being colorable merely because earlier a particular type of tax was levied which was found to be not legal. So far as the submission that the [ACT] has been enacted to make the business of selling of lottery tickets of the lotteries organised by the other States unviable is concerned, we find from the petition that there is no material placed in support of this submission, and therefore, it is not possible for us to examine this submission.
14. Taking overall view of the matter, therefore, we do not find any substance in these petitions. They are liable to be dismissed. They are, accordingly so, ordered to be dismissed. Rule discharged. No order as to costs.
([ENTITY], J.) ([ENTITY], J.)