TMI Blog1984 (1) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... andamus directing the State of Maharashtra to forbear from interfering with the sale or distribution of lottery tickets in respect of the lotteries organised' by the Governments of 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 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 Maharashtra, 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organised by the Government of India or the Government of a State' has been taken out from the legislative field comprised by the expression Betting and gambling and is reserved to be dealt with by Parliament. Since the subject 'Lotteries organised by the Government of India or the Government of a State' has been made a subject within the exclusive legislative competence of Parliament, it must follow, in view of Act. 246(1) and (3), that no legislature of a State can make a law touching lotteries organised by the Government of India of the Government of a State. This much is beyond 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 Act 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 Government . This, as we said, is but a recognition of the prevailing situation under the Constitution. The Constitutional position cannot be altered by an act of the State legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt plans'. However, it was added : At the same time, it is also felt that suitable steps should be taken to safeguard the interests of such State Governments, who, as a matter of policy, do not desire to start State Lotteries or permit sale of tickets of lotteries organised in other States, within their jurisdiction. In order to avoid objections from such States, it has been decided that the Central Governments permission for conducting State Lotteries is available on the condition that tickets to such a lottery will 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 IPC is being undertaken to make sale of tickets, without the consent of the State Government concerned, a penal offence . We may mention here that the proposal to amend Section 294-A IPC to achieve the object of preventing the sale of lottery tickets of one State being sold in States which are opposed to the conduct of lotteries as a matter of policy has remained a static proposal and no such amendment has so far been attempted to be made. The communication dated July 1, 1968 from the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the permission granted to each State to conduct its lotteries is expressly subject to-the condition that the tickets of the lottery shall not be sold in another State without the permission of the Government of that State. We have already pointed out that Article 298 of the Constitution extends the executive 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 stipulation that such executive power of the State shall be subject to Parliamentary legislation. It is true that in view of Entry 40 of List I 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 executive power of the union to the matters with respect to 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 or the Government of a State . But the executive power of the union, by the very openin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government concerned, a penal offence . The proposed amendment is yet to see the light of day. A submission which appears to have found favour with the High Court of Bombay in Kamal Agency v. State and the High Court of Madras in H.G. Jain v. State of Tamil Nadu was that in Entry 40 of List I and the respective local Acts, a lottery organised by a State must be construed to refer to a lottery lawfully 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, the State Government could take executive action in respect of lotteries organised by another State if they were unlawful. The Gujarat and Andhra Pradesh High Courts have dissented from this view. In Special Civil Application No. 1309 of 1970 Bhagwati, C.J. presiding over a Division Bench of the Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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