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H. ANRAJ AND OTHERS ETC.

V.· • STATE OF .. MAHAR'-sHTRA

•• January 23, 1984

[Q. CmN~A~PA REDDY •. E. S. VENKATAAA~IAH AND R. B. M1sRA, JJ] l

Constitution ?f India 1950

Articles. 73 alld 298-GOvern'!lent of State-Whether could organise. lotteries-.

Whether competent to. ban sale of ti'ck"ets of lotteries conducted by other Sta'te Govern ments. ·

Entry 40 List I VIII Sc/1edule, Emry 34 List II VIII Schedule & Articles 246(1) . • 't' and (3). ·

State LegiSlatµre-whether co1npeten.t 10 enact a law touching lotteries organised by the Govenunent of India or a State'Government. .•.

Lotteries Sale of_tickets of lotteries c_onducte; J _by oiler State Governments-State

Go1 1rn1nent---· Whether competent to iJaJt .wiJhin in _own State. ·

By a press release, the Government of Maharashtra declared that the sale of lottery tickets of Stales other than the State of Maharashtra was .unlawful an(l w"arped the public .that no lottery ticket o~ other States should be sold within the

State. ·

•The petitioner.s who were agents for the Sale of tickets for lotteries coll ducted .by various:State Governments other.thait the State'of Maharashtra contended in their writ-petitions, that the aforesaid ban that was soµght to be irriposed had no lega:l authority. Under the Constitlltion lotteries organiSed by the GoVernment of India or. the Government of a State was a subject which was within the exclusive legisiative comPeience of Paliaent and that it was not open ·.to the Governnient of any State pu_rporting to A.Ct in exercise of its executive power to in1pose such a . ban .. On behalf of the Sti.te aovernment-respondent it was•Contended . .that the_

Union Government's execut_ive power wa's co-extensive with the power to make laws, that the President in exercise Or his" power Under Article 258(1) ha_d ehtr-Usted to the State Government the executive power of the UniOn through a Presidential.

Order dated April 2, 1969 in respect of lotteries run by the State, and therefore it was competent for the St; i.te Gc;:>vernment to imp.ose. the ban.

Allowi;1g th~ writ Petitions. ..

HELD : 1. The Government of M.aharashtra cannot purport to ban the

H. ANRAJ v. MAHARASHTRA ..

.. 441 t# sale of lottC:ry tickets of other State by ,; irtue oJ the entrustment of power under Article 258(1) of the Constitution. [447 DJ

i. Entry 40 of Lfst I of the VIIIth SChcdule to the Constitution is. "Lotteries organised by the Governn1ent of India or the Government of a State". Entry 34 of List II of VIiS Schedule is, "Betting and ga:inbling".

Sinc.e the subject 'Lotteries organised by the Governni.ent of India or the Govcrnnient 'of a State' }J.as been taken out from-the legislatiV_e field comprised by the exprcssi&n "Betting and gamb 1illg" and .reserved t6 be dealt with by Parliament, wifhin its exclusive legislative competence it must follow, in vie\\' of Articld'-246(1) and (3) that no legislature of a State, can n1ake a law touching i9ttcries organisid by the Government of Tndia .Or the Government of a State. [444 P-El

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3. Articl, e 73 extends the executi"ve power of the UniOn to the matters with ( respect to which Parliament has po:wer to make. Ja:ws.

Buhe executiv~ p~\\'er ' .of the UQidn, I;>y the very opening words of Art. 73 is "subject to the proV:isions of .the Constitution". It thefefore follows that the .executive power of the Unjon with rCspect to 'lotteries organised by the GOvernment of a .State has necessarily to be exercised subject .to -the provisions of the Constitution, .including Art. 298, which expressly extends the execi.itive power of the State to the.carrying on of any trade -If or business subject Only to legislation Qy Parliament if the trade or "business is not one with respect to which the state Legislatur"en1ay make laws. [4470-H; 440A-B

Reading and c; on'sidering Articles 73 and 298 together, it is clear that the executive power of a State iii the n1atter of carr)ring on any trade on business. with respect tb_ which i.he State legislature may noi make la~NS is subject to lcgislatiop by Parlian1ef!.t but is not subject tb the executive power of the Union. The Goyernmnt of a State is qot required to obtain the Permission of the Union Government in order to organise its lotteries; in the absen~.of Parliaffientary legislatjon. Even assuming that such pe, nnission is .necessary, a condition inlposed by such permission that lottery tickets of one State may not be sold in another State cii:nnot'be enforced

~Y the other State. The other State J:tas no power to make any Jaws in regard to lotteries organised by the first State .. lts.ex.ecutive power, by virtue of Article 298, extends to logtteries oranised. b~· itsel_f but no.t to lotteries organiSed by the othe'r State. [448C-Ej .

5. If.a State acts in breach of the condition in1posed by the President while en"trusting power under Article 258 it i, s op.en to the President to revoke the.· per~ . mission o.r to tke such further or other aCtio"n.as may be consitutionally permissible but it cannot possibly enable the Government of the other State to do anything

bot it except to con1plain perhaPs to the Union Government. [448 E-F] .

In the instant case the source of power fo"r the ban is claimed to be the entrust~ mei1t of poWer by the President under Act 258(1). through. the Pridential Order nated April z', 1969. But the terms of the entrus1ment do not justify the claim The entrustffient of power is Only 'ill respect of lottrics organise'd by th<:i~ Govern-· nient' .. The l.xpression 'that Government' in.the conrext of the entrustment of power to the Governinent of Mahara$htra can , only _ffiean the- Oovernment of Maharashtra and no other. [447 B.-C]

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L.B. Paradise Lottery Centre v. State, ATR 1975 AP 50 Shri T11drci11ada11 Cha1"iln

 H La/"Thacker v. Staie of Gujarat, S.C.A. 1309/70 approved: ,

 Kamal Agency v. State, AIR 1971 Bonibay 332 and H.G. Jain v. State af Ta1ni'ln"du, ArR 1973 Madras 402; ovcr; ruled.

ORIGINAL JuRISDICTION : Writ Petition. Nos. 9333 or 2J36 of 1983:

. (Under Arti~Ie 32 of the Constitution of India). , .. . . . .

AdvOates for the rctitione.s ; '.

L.M. Sin.hvi, A .. M. Singh vi, Vimal Dave,. and Krishan Kumar.: A

" T.S. Krishnamurth)• Iyer, Naresh Kumar Sl1arma and Vineet Kumar.· ...,-y "' . . . . '.

Dr. Y.S. Chitale,. (Not present) Mrs: Sadhano Ramhandran and Raju Ramchandran and.Ha1jinder Singh (Not present) ·•

Advocates for .the Responents :

A.V. Rangamand Mrs. Sm la Chandt~ for the State of Tamilnadu. . .

_ N.H. Gurusahani, A.shwani Kumar, N. N. Keshwani and M. N.

Shroff a1id A..S. Namhiar Not Present.

The Judgment of the Court was delivered by

. CHJNNAPPA REDDY, J.

The seve.ral petitioners in these writ petitions are agents for the sale of tickets. for the lotteries conducted by n1e Governments of various States other than Maharashtra. They question the ba11 sought to be imposed by the Government.of Maha~ rashtra on the sale within the State of Maharashtra of ticket~ of lotteries conduc.ted by the Government o(otherStates. They, generally, seek a writ in the . nature of it Mandamus directing'.the State or Maharashtra.to forbear from interferring with the sale or distribution of lottery tickts inrespect of the lotteries organise'd by the Governments bf States. other than Maharashtra.

There is no express notification or order of the Government of Maharashtra imposing a ban on the sale of lottery tickets of o.ther .States in .the State of Maharashira. The ban is sought to be spelt 'out from a Press relcase of the Director of Publicity, Sachivalaya, Bombay dated Septeniber 24, 1969 and a •communication dated August 24, 19ill addressed by the. Government of Maharashtra,.

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H. ANRAJ 'v. MAHARASHTRA (Chinndppa f!rddy'. J.). 443

Finance Department, to some of the petitioners individually. The .Press release is as follows :

SALE OF LOTTERY TICKETS

OF OTHER STATES UNLAWFUL

Warning to' Pul:ilic . ..

On September 16, the Minister for Finance in a Press conference, followed by q''press note, made it dear to agets who arc selling lOJJery tickels that the sale pf lottery tickets of other States in this State is .unlawful. The Government

. of India, in giving permission for conducting State lotteries C had made a condition: that the lottery tickets should not be sold in another_ State, without the express consent of that State, No such permission has been given in Maharashtra · for the sale of outside State. !ottecy tickets. Despite the . warning given .by the Minister, nnautl!orised sales of lottery tickets of outside States continues, and the Government D is therefore .taking steps to stop these obviously unlawful practices by seizing all stocks of tickets of other. States' lotteries. T.he public are warned ihat no tickets other that the Maharashtra State Lottery tickets can' be sold within : the Maharashtra State".

The communications addressed to the petitioners are m the following terms :

Sir,

I am directed io refer to your letter No. DA/PL/81/6~, dated.22.6.1981 on the above mentioned 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 Slate Lottery tickets in this State cannot be. accepted. .

• Yours .faithfully, .

Sd/- State. Lottery Officer, Finance Department.

 The basic subrnissfon on behalf of the petitioners is that there.

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• 444

A is no legal 'authority for the imposition of the ban. It is argued that under the Constitution, .'Lotteri.es organised by the. Government of India or the Government of a State' is a subject which is within the exclusive legislative competence ofParliament and that it is not 0pen 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 beargued on behalf of.the Govern1ftent of Maharasht.ra 'that the Union Government's executive power is co-extensive with the power of

Parliament to make laws, that the President in exercise of his power _1 under Art. 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 Maha rashtra to impose the ban.

Entry 40 of List I of the V!Ith Schedule to the Constitution is "Lotteries .organised by the Go.v.ernment of India or tk Government of a State". Enirv 34 of List II of Vllth Schedule is, "Betting and gambling". There is no dispute before us that the expressin "Betting and gambling" includes and has alwys been understood to have included the conduct of lotteries. Quite obviously, the subject 'Lotteries organised by the Governmerrt of India or the Governmen.t of a State' has been taken outfrom the legislative field comprised by the expression "Betting and gambling" and is reserved to be dealt E with by Parliament. Siilce tii.e subject 'Lotteries organised by the Government of India or the Governmnt of a State' has been made a subject within the .exch!sive legislative competence of Parliament, it must follow, in view of Aci. 246(1) arid (3), that no legislature of~ j State can make a law wuching lotteries organised by the Government of lnd'a or the Government of a State. This. much is be; ond controversy and the Maharashtra legislature has acknowledged the position, as indeed it must, in Sec. 32 of the Bombay Lotteries (Control and Tax) and Prize Competitions (Tax) Act,· 1958. It is an .ct to control and tax lotteries and to tax prize competitions in the State of Maharashtra. Section 32(b) expressly provides that nothing in the Act shall apply to "a lottery organised_ by the Central Government or a State G; overnment". This, as we said, is but' a recognition of the. prevailing situation i!nder the Constitution. The Constitutional postion cannot be. alterd by an ct of the State legislature.

It appears that the Government of Maharashtra and various . 0ther State Governments requested the :Union Government to • authorise them to conduct lotteries for the purpose of 'finding funds

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Ii. ANRAJ v. MAHARASHTRA (Chinnajlpa Reddy, J.) 445.

for J'inancing their development plants'. Such authorisation was, of course, strictly, not necessary in the absence of a law made by Parliament pursuant to Entry 40 of List I ofthe VIIth Schedule to the Constitution ... Article 298 of the Constitution extends the executive power of the Union and ach State to the carrying .on of any trade or business and to the acquisition, holding and disposal.of property . and the making of contracts for any purpose; with the stipulation that if the trade, business or purpose is not one with respect to which Parliament may make laws, the said executive power of Parliament shall be subject in each State to legislaticJn by .the State and if the trade, business or purpose is not one with respect to which the State legislature may make laws, the said executive power of the State shall be subject te. Jegislation by Parliament. Thus, while the Government of a State is free. to earry on any trade or bsiness in respect of which it may not have. the power to make laws the power to carry on such trade or business shall be subjectto legislation by Parliament. Therefore, the Government of a State has the rig ht to conduct lotteries subject to legislation by Parliament. Since there is at present no legislation by Parliament on the subject of lotteries organised by the Government of India or the Government of a St; i.te, the Government of every State has the unrestrictect' right to organise lotteries of. its own.

We will consider the effect of the impact of Art. 73, Art. 258(1) and . Entry 40 of List I read with Art. 246 on this right a little later. • • • To continue the expose of facts, in response to the request <if . the several State Governments, the Minisiry of Home Affairs, Government of India, addressed a communication dated July 1, 1968 to the Chief Secretaries to the Government of all States. It was stated in the letter that though the Central Government was opposed to the idea of lotteries being cond1Jcted by Governments, they had decided . to authorise the State Governments to conduct lotteries in view of the representations of some of the State. Governments that it w<; mld help theni 'to mobilise savings and to find funds. for financing their development plans'. However, it was added : - . "At the same time, it is also felt that suitable steps should be taken to safeguard the interests of s11ch State Governments, who, as a matter of policy, do not desire to start State Lotieries or permit sale of tickets of lotteries organised in other States, within their jurisdiction. In order to avoid objections frbm .such States, it has been decided that the . Central Government's permission for conducting State Lotteries is available on the condition that tickeis to such a iottery will

A not be sold in another State without the express consent of the State Government concerned. I am. to add that in order to achieve this object an amendment of Section 294-A. tPC is being undertaken to make sitle of tickets, .without . ~·.

the consent. of the State Government concerned, .a penal . offence" ..

.We may mention )1ere lhat the proposal to :imend Section 294-A IPc to achieve the object. of preventing the sale of lottery tickets of . on~ State being old in States which are opposed to the conduct of lotteries .as a matter of policy has rema'ined a static proposal and no" 1_ uch amendment ha.s so far been attempted to be made. . •

'The communication dated July' l', 1968 from. the Government '..·~ of India was followed by Presidential Order under Art. 258(1) of the Constitution. .The' Presidential Order relating to the State of Maha-, rashtra w; th which we are concerned, is as follows :-'

No. 29/29/63-P.IV . Governmeii.t of India . Ministry of Home Affairs New Delhi, the 2nd Aptil, 1969.

ORDER

 Wheas the Government of Maharashtra propose to organise a State lottery;

' And whereas the Central Government has no .objection to it ; ·

. Now, therefore, the President is pleas.ed to permit the.

Government of Maharashtra to conduct a State . lottery, subject to the .condition. that the ti.ckets of the lottery shall not be sold in another State without the permissiOn. of the Government of-that State. ·

The President is further pleased to entrust to. the . Government of Maharashtra under clause(!) of Article 258 of \he Constitution the .executi:ve power of the Union in : respect of lotteries. organised by that Government. .

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. , Sd/-

(D.D. JOSHI) Deputy Secretary to the Government of India.

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H. ANRAJ v. MAf!ARASHTRA (Chinnappa Reddy, !.). 447

It was after this entrustmeni of executive power of the Union A to the Government of Maharashtra 'i)l respect oflotteries organised by that Government' .that the Government of Maharashtra proceeded to. issue the Press release and thereafter the individual communications, earlier referred. to, making it known that the sie of lottery tickets .of other States was banned in the State of Maharashtra.

The source of powerfor the ban is claimed to be the entrustmenf of power by the President under Art. 258(1) of the Constitution. But . the terms of the entnistment.do not justify the claim; 'The entrust-· . men.t of power, as is seen, is only 'iii respect of lotteries organised by that Goveru.ment'. The expression 'thatGorermrient' in the context

of the entrustment of power to the Government of Maharashtra . C cajl only mean the Government of Maharashtra and no other. Nor can it ever be that such executive power as the Union Government may possess -in respect of the trading,. bu.siness or, for tha.t matter, .. any other activity of the Government of one State may be entrusted to the Government' of another State. That would be destructive of the very scheme and structme of our Cnstitution. The Govern- D ment of Maharashtra cannot therefore purport to ban the sale. of lottery tickets of other States by virtue of the entruslinent of power . under Article 258(1) of the Constitution. ·

It is. then said that the permission granted to each State to conduct its lotteries is expressly subject to the condition that the tickets of the

 E lottery shall not be sold in another State without 'the permission of the Government of .that State. We have already pointed out that 'Ai:ticle 298 of the Constitution extends the executiv.e power of every,. ·

State to the carrying on of any trade or business even if such trade or business is one with respect of which Parliament alone has. the exclusive power to make laws, "Subject to the tipulation. that such F . executive "power of the State shall be subject to Pariiamentary legisla- ·

tion. It is true that in view of Entry 40 of List r of the VIIth Schedule to the Constitution Parliament has exclusive power to make laws .with• respect to "Lotteries organised by the Government of India or the · Government of a State", that Article '73 of the Constitution extends the eltecullve power of of the union .to .the matter~ with respect to G which Parliament bas power to make laws and, therefore, the executive power of the Union must extends to the subject "Lotteries organised by the Government of India of the Government of a Slate". But tlie executive power of the unioii, b; the very opening wbrds of Article 73, is "subject to the provisions of this Constitution". It follci)VS that the executive power of the UniQn with respect to lotteries

A organised by the Govrnment of a State has necessarily to be exercised

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subject to the provisions of the Constitution, including Article 298, which expressly extends the executive power of the State to the carro/ing on 'of any trade or business subject only to legislation by Parliament if the trade or business is not one with

respect to which. the . State legislature may. make laws.

It is to B.. be .noted. that Article 298 does not open with the words 'subject to the. provisions of Che Constitution', .as does Article 7,3.

Reading and considering .Articles 73 an1 298 togetiier, .as thev should indeed be read and considered, it is clear that the executive power .of a' State in the matter of carrying on any trade or bus.iness with respect to which the State legislature may not make laws iS subject to legishtion by Parliament but is not subject to the executive' power of the union. That is why we mentioned earlier that tl:)e. Government. of a .State is not . required .to obtain the permission of the Union Government in order to orgai1is; its lotteries, in the absence of Parliamentary legislation.· Even assuming that such permission is necessary, D we dci not see how a condition imposed by such. permission tht lottery . tickets of oe State may not be sold in another State m•Y be enforced . by the other State. The other State has no power to make law~. in . . regard to the lotteries .by the first State. Its executive power, by virtue of Article 298,. extends io lotteries organised by itself but not .to lotteries.organised by the other State. If a State acts in breach of E.

Arthet_co 1 ndition imposed.by the President while e.ntrustthing po"'.er_underr ·.

Jc e 258, it is open to the President to revoke e perm1sswn o. to take such further or other action as may be constitutionally per-

• missible but it cannot possibly enable the Government of the other.

State. to do a thing about it except to complain, perhaps, t~ the Umon Government. The Government of India is quite obvwusly ahve to the position that there is no way of enforcing the.stipulation that lottery tickets of one Stateshall not be sold in another except by . . Parliament mahing a law in that behalf.· The awareness is reveal;:d

by the last sentence in the letter dated July 1, 1968 which says,

"I am to add that in order to achieve this object an amendment of 'Section 294-A IPC is being undertaken to make sale of tickets, without .the consent of the State

. ed • penal offence" ..

Government concern ' .

. the light of dav. . ent is vet to see 7.'he rfrf'lnno;:; if :imenc\m ..

found favour with the appears to have • A submission which '

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H .. ANRAJ v. MAHARASHTRA (Chinnappa,_ Reddy, J.) 449

High Court of Bombay in Kamal Agency v. State"> and the High_ A Court of Madras in H.G. Jain v. State of Tamil Nadu( 2> was that in Entry 40 of List I and the respective loca.l Acts, a lotter1 organised by a State must be colistrued to refer to a lottery Jawfully organised by a State and that if a lottery is not lawfully organised by a State it would not fall within Entry 40 of List I but. would fall under the head 'gambling' under Entry 34 of List II and the State -legislature would then be empowered to legislate in respect of the same. Where the State Legislature could thus legislate, it was said, th' State Gover.nment cou'd take execuUve action in . respect of lotteries organised

bf another State if they were unlawfl11. The Gujarat and Andhra .

Pradesh High Col'rts have dissented fwm this view.

Jn Special .

Civil Application No. 1309 of 1970 Bhagwat;;. C.J. presiding over a Didsi0n Bench of the Gujarat High Court. and in L.B. Paradise Lottery Centn v. State(3> cine of us sitting singly in the Andhia Pradesh High Court have explained !hit there is no justification for first reading.

the word 'lawfully' into Entry 40 of :List I and the1i proceeding to interpret the expression !Lottery lawfully organised' as meaning a lottery rganised persuant to the entr.ustment of executive power of the Union under Article 258 of the Constitution. It was observed "legislative power cannot be fed into Entry 34, by feeding the word 'lawful' into Entry 40 oi List I and thus artifici11ly. restricting the scope of Entry 40':. It was pointed out that if the Go; ernment of a State otgenised a lottery without the entrustnient of executi\ie power . as contemplated b; ,(\rtide 2 58 o_r in disregard or defiance of any

condition that ma/ have been imposed while entrusting executive power under Arti& 258 it would IJever be a matter for the legislature of one State to take upon itseif the power to declre unlawful the lottery run by the Government o.f another State; anci even less so could the Government of a State declare unlawful a Jottecy run by the Government of another State and thereafter bari the sale of the tickets of the lotteries otganised by that State. In the .Madras case it was also obsered that the entrustmcnt order carried with it all powers which the State Government might take to realise the maximum collection.

We ca1111ot subscribe to this view .. That would really amount to the entrustment of vital legislatiye powers to the St.ate Government which would be conslitutionaH; impermissilile. We do.not think it necessary to refer in any further detail to the decisions . of the Gujarat, Andhra Pradesh, . Bombay and Madras decisions

(1) AIR 1971, 332.

(2) AIR 1973 Madras 402.

(3) AIR 1975 A . . P 50.

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A except to say that we generally agree with the reasoning in the Gujarat .

and Andhra Pradesh ded.sions and disagree with ihe reasoning in the . Bmbay .and. Madras decisions.· Jn the t:esJ.Ilt we allow the Write .

petitions and direct the :;>tate of Maharashtra , to forbear from giving .effect to the ban on the sa.Je or distribution of tickets of lotteries organised by other States. There is no order regarding to costs. ·

RV.K.· ·,

Appeal allowed:

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