Bombay High Court High Court

N.V.Marketing Pvt.Ltd vs State Of Maharashtra & Others on 14 August, 2009

Bombay High Court
N.V.Marketing Pvt.Ltd vs State Of Maharashtra & Others on 14 August, 2009
Bench: D.K. Deshmukh, R.S. Mohite
                               1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

             ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                  
                                          
                  WRIT PETITION NO.432 OF 2007




                                         
    N.V.Marketing Pvt.Ltd.              ...Petitioner.

            vs.

    1.State of Maharashtra & others.    ...Respondents.




                                   
                        ig    AND
                      
                  WRIT PETITION NO.435 OF 2009


    M/s.Mumbailaxmi Enterprises.        ...Petitioner.
          


            vs.
       



    1.The Commissioner of Small Savings
    & others.                         ...Respondents.





                              AND


                  WRIT PETITION NO.533 OF 2007





    M/s.Mahalaxmi Company.          ...Petitioner.

            vs.

    1.The Commissioner of Small
    Savings & Lotteries & ors.      ...Respondents.




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                               AND




                                                                 
                  WRIT PETITION NO.629 OF 2007




                                         
    Sugal & Damani Lottery Agency
    Pvt.Ltd.                           ...Petitioner.




                                        
            vs.

    1.The Commissioner of Small Savings
    & Lotteries & others.             ...Respondents.




                                    
                         ig    AND
                       
                  WRIT PETITION NO.1111 OF 2007


    M/s.Sweta Enterprises.             ...Petitioner.
          


            vs.
       



    1.The Commissioner of Small Savings
    & Lotteries & ors.                ...Respondents.





                               AND


                  WRIT PETITION NO.1126 OF 2007





    M/s.Kenlott Gaming Solutions
    Pvt.Ltd.                           ...Petitioner.

            vs.

    1.The Commissioner of Small Savings
    & Lotteries & others.             ...Respondents.




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                               AND




                                                                 
                  WRIT PETITION NO.1127 OF 2007




                                         
    M/s.Tashi Delek Gaming Solutions
    Pvt.Ltd.                           ...Petitioner.




                                        
            vs.

    1.The Commissioner of Small Savings
    & Lotteries & others.             ...Respondents.




                                    
                         ig    AND
                       
                  WRIT PETITION NO.425 OF 2009


    M/s.Shree Enterprises              ...Petitioner.
          


            vs.
       



    1.The Commissioner of Small Savings
    & Lotteries & ors.                ...Respondents.





                               AND


                  WRIT PETITION NO.436 OF 2009





    Pradeep Lunkad.                    ...Petitioner.

            vs.

    1.The Commissioner of Small Savings
    & Lotteries & ors.                ...Respondents.




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                              AND




                                                                 
                  WRIT PETITION NO.444 OF 2009




                                         
    M/s.Utsav Gaming Solutions
    Pvt.Ltd.                          ...Petitioner.




                                        
            vs.

    1.The Commissioner of Small Savings
    & Lotteries & ors.                ...Respondents.




                                    
                        ig    ---
                      
    Dr.V.V.Tulzapurkar with R.D.Soni & V.R.Kasle i/b. Ram
    & Co., for Petitioners in WP Nos.413/09, 533/09,
    1111/07, 1126/07, 436/09, 425/09, 1127/07.
          

    Mr.R.D.Soni @ V.R.Kasle i/b. Ram & Co., for
    Petitioners in WP 435/09.
       



    Mr.S.H.Doctor, Sr. Advocate i/b. B.B.Parikh, for
    Petitioners in WP 432/07.





    Mr.S.Bharucha i/b. Thakore Jariwala & Associate, for
    Petitioners in WP 629/07.

    Mr.Aspi Chinoy, Sr.Advocate with Ms.Gita Shastri, AGP
    for Respondent-State in WP 435/07 & 436/09.





    Mr.A.A.Kumbhakoni with Ms.Gita Shastri, AGP for
    Respondent-State in WP 432/07 & 533/07, 629/07,
    1111/07, 1126/07, 1127/09, 425/09 & 444/09.


                              ---




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                                         CORAM: D.K.DESHMUKH &
                                                R.S.MOHITE, JJ.

DATED: 14th August,2009.

    JUDGMENT:       (PER D.K.DESHMUKH, J)




                                                 
    1.        In    all   theses   petitions    the      constitutional




                                        

validity of the Maharashtra Tax on Lotteries Act,2006

has 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

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on lottery tickets was withdrawn by the State

Government and the Maharashtra Tax on Lotteries Act,

2006 (hereinafter referred to as the State 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 State Act

is beyond the legislative competence of the

legislature of State of Maharashtra. The second

submission is that the enactment of the State 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 State 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 3 of the State

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

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State of Maharashtra and therefore, the Law has extra

territorial application. The fourth submission is that

the State Act levies tax on lottery schemes but the

term lottery scheme is not defined anywhere and

therefore, it is violative of guarantee under Article

14 of the Constitution of India. It was also

contended that the State 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 Entry 40 of List-I in the Seventh Schedule of

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the Constitution of India, 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 Entry 62 of List II of the Seventh

Schedule of the Constitution of India. The learned

Counsel relied on the judgments of the Supreme Court

in the cases H.Anraj & others Vs. State of

Maharashtra, AIR 1984(2) Supreme Court 781 and

H.Anraj & others Vs. Government of Tamilnadu, AIR

1986 Supreme Court 63 and it was submitted that the

lotteries organized by the State are necessarily

excluded from betting and gambling mentioned in

Entry 62 of List II of the Seventh schedule, and then

it was contended that the State of Maharashtra has not

shown any other source of power except Entry 62 of

List II of the Seventh Schedule and therefore, the

State Act is beyond its legislative competence.

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5. Elaborating the second submission, it was

submitted that prior to the decision of the

Constitution Bench of the Supreme Court in the case

M/s.Sunrise Associates Vs. Govt. of NCT of Delhi &

Ors., AIR 2006 Supreme Court 1908 , 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 State Act.

6. Elaborating the third submission, it was

contended that the State 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

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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 State Act seeks to tax events

which have occurred outside the State and hence, the

State 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 Article 14 of the Constitution. 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.

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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 State Act has been enacted under Entry 62 of List

II of the Seventh Schedule of the Constitution of

India relying on the Judgment of the Supreme Court in

the Case

State of W.B. Vs. Kesoram Industries Ltd.

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 State 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 3 of the State 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

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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 State Act, in our opinion, it becomes necessary to

first refer to the Scheme of the State Act. Section 3

of the State 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:-

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TABLE
No. Lottery Schemes Rate of Tax

1 2 3
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 3 shows that tax

is levied and collected on the lottery schemes

specified in Column 2 of the Table. Perusal of Column

2 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 2(d) of the

Act which reads as under:-

2. In this Act, unless the context otherwise

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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 Lotteries
(Regulation) Act,1998.

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 sub-section

(2) of Section 3 of the Act that the tax levied under

sub-section (1) of Section 3 of the Act has to be paid

by the Promoter. The term Promoter is defined under

sub-section (f) of Section 2 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

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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 Entry 62

in List II of the Seventh Schedule of the Constitution

which reads as under:-

62. Taxes on luxuries, including taxes on
entertainments, amusements, betting and
gambling.

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Petitioners do not dispute that the lottery is

betting. According to them, under Entry 62 in List II

of the Seventh Schedule, the State legislature does

not have power to impose tax on lottery because of

Entry 40 in List I of the Seventh Schedule. Entry 40

in List I of the Seventh Schedule 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

Entry 62 in relation to the lotteries. It is

submitted that Entry 34 of List II of the Seventh

Schedule of the Constitution empowers the State

Government to legislate in relation to betting and

gambling, but because of Entry 40 in List I of the

Seventh Schedule of the Constitution, lottery is

excluded from the ambit of the term betting in Entry

34 of List II of the Seventh Schedule and it also

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stands excluded from the ambit of the term betting

in Entry 62 of List II of the Seventh Schedule. In

our opinion, the entire argument is misconceived and

against the settled law. In nutshell, the argument of

petitioners is that because of Entry 40 in List I of

the Seventh Schedule, 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 Entry 34 in List II

of the Seventh Schedule but also from Entry 62 of List

II of the Seventh Schedule. The scheme underlying the

Seventh Schedule of the Constitution has been

considered in a judgment by the Constitutional Bench

of the Hon ble Supreme Court in the case State of

W.B. Vs. Kesoram Industries Ltd. And others, (2004)10

Supreme Court Cases 201 . 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 Seventh Schedule of the
Constitution. We are relieved of the need of
embarking upon any maiden voyage in this

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direction in view of the availability of a
Constitution Bench decision in

M.P.V.Sundararamier & Co. Vs. State of A.P.,
Venkatarama Aiyar, J., speaking for the

Constitution Bench, traced the history of
legislations preceding the Constitution,

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 List I 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)

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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 Article 248
clauses (1) and (2) and of Entry 97 in
List I of the Constitution. 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
List I and List II, 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

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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 Entry
42 in List I 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 Entry 54

in List II (entries as they existed per-
Forty-second Amendment, 1976). (See

Governor General in Council V. Province
of Madras and Province of Madras V. Boddu

Paidanna & Sons. (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.

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75. Referring to M.P.V.Sundararamier & Co.

Sabyasachi Mukharji, 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 Seventh Schedule, 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 Entry 40 of List I

of the Seventh Schedule, 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 Entry 34 of List II of the

Seventh Schedule, but because of that the State

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legislature will not lose its power under Entry 62 of

List II of the Seventh Schedule to impose tax in

relation to the lotteries organized by the Government

of India or other State under Entry 62 of List II

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 Entry 62 of List II of the Seventh

Schedule, because of Entry 40 in List I of the Seventh

Schedule of the Constitution of India, the Parliament

will have legislative competence to levy tax under

Article 248 and Entry 97 in List I of the Seventh

Schedule of the Constitution of India. 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 List

II of the Seventh Schedule. We can draw support for

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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 State of W.B. Vs. Kesoram

Industries Ltd. And others referred to above, they

read as under:-

100. Article 265 mandates no tax shall

be levied or collected except by authority of
law. The igscheme of the Seventh Schedule
reveals an exhaustive enumeration of
legislative subjects, considerably enlarged

over the predecessor Government of India Act.
Entry 97 in List I confers residuary powers

on Parliament. Article 248 of the
Constitution 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 List II, the same
would not be available to be exercised by
Parliament based on the assumption of
residuary power. The seven-Judge Bench in

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Union of India V. Harbhajan Singh Dhillon
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
Seervai (Constitutional Law of India,

4th/Silver Jubilee Edn. Vol.3, para22.191):

             22.191.          Although        in          Dhillon             case




                                     
     conflicting        view       were     expressed             about         the

nature of the residuary power, the nature of

that power was stated authoritatively in
Kesavananda case. Earlier, in Golak Nath

case, Subba Rao, C.J. (for himself, Shah,
Sikri, Shelat and Vaidyalingam, JJ.) had held

that Article 368 only provided the procedure
for the amendment of the Constitution, but

that the power to amend the Constitution was
to be found in the residuary power conferred

on Parliament by Articles 245 and 246(1) read
with Entry 97 List I and by Article 248.
Seven out of the nine Judges who overruled
Golak Nath case held, inter alia, that the

power to amend the Constitution could not be
located in the residuary powers of
Parliament. Hegde and Mukherjea, JJ. held
that —

It is obvious that these lists have

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been very carefully prepared. They are by and
large exhaustive. Entry 97 in List I was

included to meet some unexpected and
unforeseen contingencies. It is difficult to

believe that our Constitution-makers who were
keenly conscious of the importance of the

provision relating to the amendment of the
Constitution and debated that question for
several days, would have left the important

power hidden in Entry 97 of List I 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 Articles 245, 246 and 248
and Entry 97 of List I 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 Seervai:
“The law laid down in Kesavananda’s Case is
that if a subject of legislation was

prominently present to the minds of the
framer of our Constitution, 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

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26

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 Article 248 add anything to
the exclusive residuary power of Parliament

under Article 246 (1) read with Entry 97 List
I, to make ig laws in respect of “any other
matter” not mentioned in List II and List
III, 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
List I and List II, Seervai 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 List I. If
Parliament does not exercise its power under
Entry 54, List I, the States’ power under

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Entry 23, List II would remain intact. If
Parliament exercised its power under Entry

54,List I, 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 G.P. Singh in Principles of
Statutory Interpretation (Eighth Edition,
2001) while dealing with general principles
of strict construction of taxation statutes

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states :__

“A taxing statute is to be strictly
construed. The well established rule in the

familiar words of Lord Wensleydale,
reaffirmed by Lord Halsbury and Lord Simonds,

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 Cairns

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. Viscount Simon quoted with approval
a passage from Rowlatt, J. expressing the
principle in the following words : “In a
taxing Act one has to look merely at what is

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29

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

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30

express itself clearly. (See, Justice G.P.
Singh, ibid, pp.638-639).

107. Power to tax is not an incidental

power. According to Seervai, although
legislative power includes all incidental and

subsidiary power, the power to impose a tax
is not such a power under our Constitution.
It is for this reason that it was held that

the power to legislate in respect of inter-
state trade and commerce (Entry 42, List I,

Schedule 7) did not carry with it the power
to tax the sale of goods in inter-state trade

and commerce before the insertion of Entry
92A in List I and such power belonged to the

States under Entry 54 in List II. Entry 97
in List I also militated against the

contention that the power to tax is an
incidental power under our Constitution (See:

Seervai H.M.:Constitutional 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 List II of the Seventh Schedule of the

Constitution, the same would not be available to be

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31

exercised by the Parliament based on the assumption of

residuary power. Entry 62 of List II of the Seventh

Schedule 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

Entry 97 in List I of the Seventh

Schedule. Entry 34 of List II of the Seventh Schedule

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 Entry 40 in List I of the Seventh

Schedule, the State legislature would have got,

because of Entry 34 in List II of the Seventh

Schedule, 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 Entry 34 in List II of the

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Seventh Schedule in relation to organisation and

regulation of lotteries organised by Government of

India and Government of State, because of Entry 40 in

List I of the Seventh Schedule of the Constitution by

that entry organisation and regulation of lotteries

organised by Government of India and Government of

State is excluded from the ambit of Entry 34 in List

II of the Seventh Schedule of the Constitution. In

other words, so far as the term betting appearing in

Entry 34 of List II of the Seventh Schedule 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 Entry 34 in List II of the

Seventh Schedule of the Constitution of India,

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 Entry 62 in List II of the

Seventh Schedule of the Constitution shows that it

confers legislative competence on State legislature to

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impose tax among other things on betting and gambling.

Thus, there is specific entry made in Entry 62 in List

II of the Seventh Schedule of the Constitution

conferring power on the State legislation to legislate

imposing tax on betting and gambling. There is no

specific entry in List I of the Seventh Schedule like

Entry 40 in List I of the Seventh Schedule of the

Constitution 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

Entry 62 in List II of the Seventh Schedule of the

Constitution. Therefore, we find that there is

specific entry in List II of the Seventh Schedule of

the Constitution 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 State of

W.B. Vs. Kesoram Industries Ltd. And others referred

to above the Parliament cannot be said to have power

to impose tax in relation to lotteries under residuary

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34

Entry 97 of List I of the Seventh Schedule of the

Constitution. Thus, we find that there is absolutely

no substance in the contention that the State

legislature did not have competence to legislate the

State Act under Entry 62 of List II of the Seventh

Schedule of the Constitution.

11. Now so far as the submission that the State

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 State 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

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35

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 3 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 State Act has been enacted to make

the business of selling of lottery tickets of the

lotteries organised by the other States unviable is

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36

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.

(D.K.DESHMUKH, J.)

(R.S.MOHITE, J.)

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