{"id":151805,"date":"2009-08-14T00:00:00","date_gmt":"2009-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-v-marketing-pvt-ltd-vs-state-of-maharashtra-others-on-14-august-2009-2"},"modified":"2018-11-23T09:32:19","modified_gmt":"2018-11-23T04:02:19","slug":"n-v-marketing-pvt-ltd-vs-state-of-maharashtra-others-on-14-august-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-v-marketing-pvt-ltd-vs-state-of-maharashtra-others-on-14-august-2009-2","title":{"rendered":"N.V.Marketing Pvt.Ltd vs State Of Maharashtra & Others on 14 August, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
N.V.Marketing Pvt.Ltd vs State Of Maharashtra & Others on 14 August, 2009<\/div>\n
Bench: D.K. Deshmukh, R.S. Mohite<\/div>\n
                               1\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n             ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                  \n                                          \n                  WRIT PETITION NO.432 OF 2007\n\n\n\n\n                                         \n    N.V.Marketing Pvt.Ltd.              ...Petitioner.\n\n            vs.\n\n    1.State of Maharashtra & others.    ...Respondents.\n\n\n\n\n                                   \n                        ig    AND\n                      \n                  WRIT PETITION NO.435 OF 2009\n\n\n    M\/s.Mumbailaxmi Enterprises.        ...Petitioner.\n          \n\n\n            vs.\n       \n\n\n\n    1.The Commissioner of Small Savings\n    & others.                         ...Respondents.\n\n\n\n\n\n                              AND\n\n\n                  WRIT PETITION NO.533 OF 2007\n\n\n\n\n\n    M\/s.Mahalaxmi Company.          ...Petitioner.\n\n            vs.\n\n    1.The Commissioner of Small\n    Savings & Lotteries & ors.      ...Respondents.\n\n\n\n\n                                          ::: Downloaded on - 09\/06\/2013 14:54:10 :::\n                                 2\n\n\n                               AND\n\n\n\n\n                                                                 \n                  WRIT PETITION NO.629 OF 2007\n\n\n\n\n                                         \n    Sugal & Damani Lottery Agency\n    Pvt.Ltd.                           ...Petitioner.\n\n\n\n\n                                        \n            vs.\n\n    1.The Commissioner of Small Savings\n    & Lotteries & others.             ...Respondents.\n\n\n\n\n                                    \n                         ig    AND\n                       \n                  WRIT PETITION NO.1111 OF 2007\n\n\n    M\/s.Sweta Enterprises.             ...Petitioner.\n          \n\n\n            vs.\n       \n\n\n\n    1.The Commissioner of Small Savings\n    & Lotteries & ors.                ...Respondents.\n\n\n\n\n\n                               AND\n\n\n                  WRIT PETITION NO.1126 OF 2007\n\n\n\n\n\n    M\/s.Kenlott Gaming Solutions\n    Pvt.Ltd.                           ...Petitioner.\n\n            vs.\n\n    1.The Commissioner of Small Savings\n    & Lotteries & others.             ...Respondents.\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 14:54:10 :::\n                                 3\n\n\n                               AND\n\n\n\n\n                                                                 \n                  WRIT PETITION NO.1127 OF 2007\n\n\n\n\n                                         \n    M\/s.Tashi Delek Gaming Solutions\n    Pvt.Ltd.                           ...Petitioner.\n\n\n\n\n                                        \n            vs.\n\n    1.The Commissioner of Small Savings\n    & Lotteries & others.             ...Respondents.\n\n\n\n\n                                    \n                         ig    AND\n                       \n                  WRIT PETITION NO.425 OF 2009\n\n\n    M\/s.Shree Enterprises              ...Petitioner.\n          \n\n\n            vs.\n       \n\n\n\n    1.The Commissioner of Small Savings\n    & Lotteries & ors.                ...Respondents.\n\n\n\n\n\n                               AND\n\n\n                  WRIT PETITION NO.436 OF 2009\n\n\n\n\n\n    Pradeep Lunkad.                    ...Petitioner.\n\n            vs.\n\n    1.The Commissioner of Small Savings\n    & Lotteries & ors.                ...Respondents.\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 14:54:10 :::\n                                  4\n\n                              AND\n\n\n\n\n                                                                 \n                  WRIT PETITION NO.444 OF 2009\n\n\n\n\n                                         \n    M\/s.Utsav Gaming Solutions\n    Pvt.Ltd.                          ...Petitioner.\n\n\n\n\n                                        \n            vs.\n\n    1.The Commissioner of Small Savings\n    & Lotteries & ors.                ...Respondents.\n\n\n\n\n                                    \n                        ig    ---\n                      \n    Dr.V.V.Tulzapurkar with R.D.Soni & V.R.Kasle i\/b. Ram\n    & Co., for Petitioners in WP Nos.413\/09, 533\/09,\n    1111\/07, 1126\/07, 436\/09, 425\/09, 1127\/07.\n          \n\n    Mr.R.D.Soni @ V.R.Kasle i\/b. Ram & Co., for\n    Petitioners in WP 435\/09.\n       \n\n\n\n    Mr.S.H.Doctor, Sr. Advocate i\/b. B.B.Parikh, for\n    Petitioners in WP 432\/07.\n\n\n\n\n\n    Mr.S.Bharucha i\/b. Thakore Jariwala & Associate, for\n    Petitioners in WP 629\/07.\n\n    Mr.Aspi Chinoy, Sr.Advocate with Ms.Gita Shastri, AGP\n    for Respondent-State in WP 435\/07 & 436\/09.\n\n\n\n\n\n    Mr.A.A.Kumbhakoni with Ms.Gita Shastri, AGP for\n    Respondent-State in WP 432\/07 & 533\/07, 629\/07,\n    1111\/07, 1126\/07, 1127\/09, 425\/09 & 444\/09.\n\n\n                              ---\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 14:54:10 :::\n                                      5\n\n                                         CORAM: D.K.DESHMUKH &\n                                                R.S.MOHITE, JJ.\n<\/pre>\n
                                         DATED: 14th August,2009.\n<\/p>\n
    JUDGMENT:       (PER D.K.DESHMUKH, J)\n\n\n\n\n                                                 \n    1.        In    all   theses   petitions    the      constitutional\n\n\n\n\n                                        \n<\/pre>\n
    validity of the Maharashtra Tax on Lotteries Act,2006<\/p>\n
    has been challenged and therefore, all these petitions<\/p>\n
    can be conveniently disposed of by common order.\n<\/p>\n
    2.        The    petitioners     are    the      distributors                 of<\/p>\n
    lottery tickets for sale in State of Maharashtra, of<\/p>\n
    various States organizing, conducting and promoting<\/p>\n
    their own lotteries in India.              The Respondent-State<\/p>\n
    Government      is    also     organizing,         conducting               and<\/p>\n
    promoting its own lotteries. It is submitted that the<\/p>\n
    State of Maharashtra firstly levied and imposed sales<\/p>\n
    tax on lottery tickets of the lotteries organized by<\/p>\n
    the other State Governments by treating the lottery<\/p>\n
    tickets   as    goods.   However,    when     it    was       held        that<\/p>\n
    lottery tickets are not goods, the sales tax imposed<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                          6<\/span><\/p>\n
    on     lottery   tickets       was       withdrawn       by       the        State<\/p>\n
    Government and the Maharashtra Tax on Lotteries Act,<\/p>\n
    2006 (hereinafter referred to as                  the State Act ) was<\/p>\n
    enacted.\n<\/p>\n
    3.         It is the contention of the petitioners that<\/p>\n
    the     legislature      of    State       of   Maharashtra             has        no<\/p>\n
    legislative      power    to   enact       Laws   relating           to      State<\/p>\n
    Lotteries    including
\n                              ig  Laws   relating       to     taxation,             and<\/p>\n
    therefore, according to the petitioners, the State Act<\/p>\n
    is     beyond    the      legislative           competence             of        the<\/p>\n
    legislature      of    State    of       Maharashtra.            The       second<\/p>\n
    submission is that the enactment of the State Act is<\/p>\n
    colourable exercise of the legislative power inasmuch<\/p>\n
    as it is another method of levying tax on lottery<\/p>\n
    tickets.     The third submission is that the State Act<\/p>\n
    seeks to levy tax on lottery schemes, tax is collected<\/p>\n
    in advance in respect of each draw in the lottery<\/p>\n
    scheme at the rate specified in Section 3 of the State<\/p>\n
    Act.    It is submitted that lottery scheme of all other<\/p>\n
    State    organizing      and   conducting         lotteries          save        and<\/p>\n
    except that of Maharashtra are formulated outside the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                               7<\/span><\/p>\n
    State of Maharashtra and therefore, the Law has extra<\/p>\n
    territorial application. The fourth submission is that<\/p>\n
    the State Act levies tax on lottery schemes but the<\/p>\n
    term        lottery     scheme       is       not    defined         anywhere            and<\/p>\n
    therefore, it is violative of guarantee under Article<\/p>\n
    14     of    the    Constitution          of        India.          It       was       also<\/p>\n
    contended       that     the    State         Act    has     been        enacted           to<\/p>\n
    impose tax on sale of lottery tickets conducted by<\/p>\n
    other States in State of Maharashtra so as                                      to make<\/p>\n
    selling       of   lottery       tickets             by    the       other         States<\/p>\n
    uneconomical, unviable and thereby creating monopoly<\/p>\n
    in the lottery tickets of the lotteries conducted by<\/p>\n
    the State of Maharashtra.\n<\/p>\n
    4.           Elaborating the first submission, the learned<\/p>\n
    Counsel appearing for petitioners submitted that the<\/p>\n
    legislature of State of Maharashtra has no legislative<\/p>\n
    competence         to   enact       the       impugned       Act.                By      the<\/p>\n
    impugned       Act,     tax    is    sought         to    be     levied          on      the<\/p>\n
    lottery schemes.           The subject              Lotteries organised by<\/p>\n
    the Government of India or the Government of a State<\/p>\n
    comes in Entry 40 of List-I in the Seventh Schedule of<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                           8<\/span><\/p>\n
    the   Constitution        of        India,       and      therefore,                only<\/p>\n
    Parliament    is    empowered         to       enact      Law       relating            to<\/p>\n
    lotteries    governed      by       Government          of      India         or      the<\/p>\n
    Government of a State or any law relating to such tax<\/p>\n
    on the lotteries.           It is submitted that the State<\/p>\n
    legislature does not have competence to levy tax on<\/p>\n
    the lotteries under Entry 62 of List II of the Seventh<\/p>\n
    Schedule of the Constitution of India.                               The learned<\/p>\n
    Counsel relied on the judgments of the Supreme Court<\/p>\n
    in    the   cases        H.Anraj          &     others        Vs.        State          of<\/p>\n
    Maharashtra,       AIR    1984(2)             Supreme     Court          781          and<\/p>\n
     H.Anraj & others Vs. Government of Tamilnadu, AIR<\/p>\n
    1986 Supreme Court 63           and it was submitted that the<\/p>\n
    lotteries    organized         by     the       State      are        necessarily<\/p>\n
    excluded    from     betting         and       gambling           mentioned             in<\/p>\n
    Entry 62 of List II of the Seventh schedule, and then<\/p>\n
    it was contended that the State of Maharashtra has not<\/p>\n
    shown any other source of power except Entry 62 of<\/p>\n
    List II of the Seventh Schedule and therefore, the<\/p>\n
    State Act is beyond its legislative competence.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                       9<\/span><\/p>\n
    5.        Elaborating       the   second     submission,             it      was<\/p>\n
    submitted     that    prior       to   the     decision             of       the<\/p>\n
    Constitution Bench of the Supreme Court in the case<\/p>\n
     M\/s.Sunrise Associates Vs. Govt. of NCT of Delhi &<\/p>\n
    Ors.,   AIR   2006    Supreme     Court    1908 ,      the       State         of<\/p>\n
    Maharashtra has been         collecting tax on State lottery<\/p>\n
    tickets treating lottery tickets as             goods .            However,<\/p>\n
    once it was held to be unconstitutional as lottery<\/p>\n
    tickets were held not to be the goods, now again tax<\/p>\n
    is being collected on sale of lottery tickets under<\/p>\n
    the provisions of the State Act.\n<\/p>\n
    6.        Elaborating       the   third      submission,             it      was<\/p>\n
    contended that the State Act seeks to levy and collect<\/p>\n
    tax on lottery schemes. It was submitted that the<\/p>\n
    lottery     schemes    of    other     States       organizing               and<\/p>\n
    conducting lotteries save and except that of State of<\/p>\n
    Maharashtra     are      formulated          outside          State            of<\/p>\n
    Maharashtra and in the respective State organizing and<\/p>\n
    conducting lotteries and the draws in respect of the<\/p>\n
    said schemes are also held in the said States itself<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                      10<\/span><\/p>\n
    and the results are also declared in the said States<\/p>\n
    and published in the official Gazettes of the said<\/p>\n
    States.   Thus, by seeking to charge and collect tax on<\/p>\n
    lottery schemes, the State Act seeks to tax events<\/p>\n
    which have occurred outside the State              and hence, the<\/p>\n
    State Act is dealing with the subject which is not<\/p>\n
    within its territorial jurisdiction.\n<\/p>\n
    7.        Elaborating     the    fourth   submission,             it      was<\/p>\n
    contended that though tax is imposed in relation to<\/p>\n
    the schemes, the term       Scheme     is not defined in the<\/p>\n
    Act.   Thus, the tax is being levied with reference to<\/p>\n
    the concept which is extremely vague and therefore,<\/p>\n
    levying   of   tax   in   such    a   situation       violates            the<\/p>\n
    guarantee of Article 14 of the Constitution.                       It was<\/p>\n
    also submitted that extremely large amount has been<\/p>\n
    collected as tax under the Act with a view to make it<\/p>\n
    uneconomical to sell tickets of lotteries conducted by<\/p>\n
    other States in the State of Maharashtra with a view<\/p>\n
    to create monopoly in relation to the lottery tickets<\/p>\n
    of the lotteries conducted by State of Maharashtra.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                     11<\/span><\/p>\n
    Thus, according to the petitioners, it is colourable<\/p>\n
    exercise of legislative power.\n<\/p>\n
    8.         On     behalf   of    the   Respondent-State                   of<\/p>\n
    Maharashtra, on the other hand, it was contended that<\/p>\n
    the State Act has been enacted under Entry 62 of List<\/p>\n
    II of the Seventh Schedule of the Constitution of<\/p>\n
    India relying on the Judgment of the Supreme Court in<\/p>\n
    the Case<\/p>\n
                    State of W.B. Vs. Kesoram Industries Ltd.\n<\/p>\n
    And others, (2004)10 Supreme Court Cases 201 .                    It was<\/p>\n
    contended that considering the constitutional scheme,<\/p>\n
    it cannot be said that the State legislature does not<\/p>\n
    have competence to enact the State Act. The learned<\/p>\n
    Counsel took us through the provisions of the Act to<\/p>\n
    show that by reading the definition of term                   lottery<\/p>\n
    it becomes clear that what is the meaning of term<\/p>\n
     scheme    used in Section 3 of the State Act.                   It was<\/p>\n
    pointed out that it cannot be said that there is any<\/p>\n
    vagueness in this matter. It was then submitted that<\/p>\n
    the tax is not being collected on sale of lottery<\/p>\n
    tickets but the       tax is collected in relation to the<\/p>\n
    lottery schemes once tickets are imported in the State<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                     12<\/span><\/p>\n
    of Maharashtra.        It was submitted that there is no<\/p>\n
    material placed by the petitioners on record as to<\/p>\n
    how, because of the tax imposed, the business of sale<\/p>\n
    of lottery tickets of the lotteries conducted by the<\/p>\n
    other    States   in   the   State        of    Maharashtra             becomes<\/p>\n
    unviable, and therefore, the contention raised on that<\/p>\n
    basis cannot be considered.\n<\/p>\n
    9.        Now,    in\n                           \n                            order        to        consider         the         first\n\n<\/pre>\n
    submission in relation to the legislative competence<\/p>\n
    of the legislature of State of Maharashtra to enact<\/p>\n
    the State Act, in our opinion, it becomes necessary to<\/p>\n
    first refer to the Scheme of the State Act. Section 3<\/p>\n
    of the State Act is the charging section which reads<\/p>\n
    as under:-\n<\/p>\n
         3. (1) There shall be levied and collected a tax on<\/p>\n
         the lottery schemes specified in column (2) of the<\/p>\n
         Table hereunder, at the rates specified against them<\/p>\n
         in column (3) of the said Table:-\n<\/p><\/blockquote>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                         13<\/span><\/p>\n
                                        TABLE
\n         No.                      Lottery Schemes                       Rate of Tax<\/p>\n
         1                               2                                           3<\/span>
\n               1      Weekly lottery scheme                                       50,000<\/p>\n
               2      Fortnightly lottery scheme or any                       1,00,000
\n                      lottery scheme between week and
\n                      fortnight<\/p>\n
               3      Monthly lottery scheme or any                           2,00,000
\n                      lottery scheme of any duration
\n                      exceeding fortnight<\/p>\n
               4      Bumper lottery scheme                                 10,00,000<\/p>\n
               (2) The tax levied under sub-section (1) shall be
\n         paid by the Promoter.\n<\/p><\/blockquote>\n
    Perusal of the above quoted Section 3 shows that tax<\/p>\n
    is     levied     and    collected       on     the      lottery            schemes<\/p>\n
    specified in Column 2 of the Table. Perusal of Column<\/p>\n
    2 of the table shows that the Act contemplates four<\/p>\n
    kinds      of    lottery    schemes      viz.    (i)        Weekly          lottery<\/p>\n
    scheme, (ii) fortnightly lottery scheme, (iii) monthly<\/p>\n
    lottery scheme and (iv) bumper lottery scheme.                                Though<\/p>\n
    the term        scheme     has not been defined in the Act, the<\/p>\n
    term     lottery     has been defined by Section 2(d) of the<\/p>\n
    Act which reads as under:-\n<\/p>\n
                    2. In this Act, unless the context otherwise<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                         14<\/span><\/p>\n
              requires-\n<\/p><\/blockquote>\n
              (d)     lottery       means      a   scheme,            in      whatever<\/p>\n
              form     and     by    whatever         name           called,            for
\n              distribution of prizes by lot or chances to<\/p>\n
              those persons participating in the chances of
\n              a prize, by purchasing tickets, conducted as<\/p>\n
              per      the      provisions           of        the          Lotteries
\n              (Regulation) Act,1998.\n<\/p><\/blockquote>\n
    Perusal of the above definition shows that Lottery<\/p>\n
    means a scheme for distribution of prizes by lot or by<\/p>\n
    chance.    It is, thus, clear that lottery is nothing<\/p>\n
    but a scheme for distribution of prizes by lot or<\/p>\n
    chance.   It is clear from the provision of sub-section<\/p>\n
    (2) of Section 3 of the Act that the tax levied under<\/p>\n
    sub-section (1) of Section 3 of the Act has to be paid<\/p>\n
    by the Promoter.         The term        Promoter        is defined under<\/p>\n
    sub-section (f) of Section 2 of the Act, which reads<\/p>\n
    as under:-\n<\/p>\n
               2(f)          Promoter        means    the         Government              of
\n              any     State    or    an      Union        Territory             or      any
\n              country organizing, conducting or promoting a
\n              lottery and includes any person appointed as<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:54:10 :::<\/span>
\n                                         15<\/span><\/p>\n
            first importer for marketing lottery tickets
\n            in the State of Maharashtra on behalf of such<\/p>\n
            Government or country where such Government
\n            or     country        is    not   directly        marketing              or<\/p>\n
            conducting lottery schemes in the State.\n<\/p><\/blockquote>\n
    From the definition of the term             Promoter           it is clear<\/p>\n
    that the promoter can be either the Government of any<\/p>\n
    State or an Union Territory or any country which is<\/p>\n
    organizing a lottery and it can also be a person who<\/p>\n
    has been appointed as first importer for marketing<\/p>\n
    lottery tickets in the State of Maharashtra by such<\/p>\n
    Government,     Union     territory         or     country.                    The<\/p>\n
    petitioners,    in   this          petition,     claim        to      be       the<\/p>\n
    promoters. The Respondent-State is relying on Entry 62<\/p>\n
    in List II of the Seventh Schedule of the Constitution<\/p>\n
    which reads as under:-\n<\/p>\n
             62. Taxes       on    luxuries,       including           taxes         on
\n            entertainments,              amusements,          betting              and
\n            gambling.\n<\/p><\/blockquote>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                            16<\/span><\/p>\n
    Petitioners          do   not    dispute       that      the       lottery            is<\/p>\n
    betting. According to them, under Entry 62 in List II<\/p>\n
    of the Seventh Schedule, the State legislature does<\/p>\n
    not have power to impose tax on lottery because of<\/p>\n
    Entry 40 in List I of the Seventh Schedule. Entry 40<\/p>\n
    in List I of the Seventh Schedule reads as under:-\n<\/p>\n
                   40.        Lotteries organised by the Government<\/p>\n
               of India or the Government of a State.\n<\/p>\n
    According to the petitioners, because the power to<\/p>\n
    legislate in relation to lotteries organised by the<\/p>\n
    Government of India or the Government of State is<\/p>\n
    vested    in    Parliament,       the       State    legislature              cannot<\/p>\n
    impose tax in exercise of its legislative power under<\/p>\n
    Entry     62    in    relation     to       the     lotteries.                It      is<\/p>\n
    submitted that Entry 34 of List II of the Seventh<\/p>\n
    Schedule       of     the   Constitution          empowers           the        State<\/p>\n
    Government to legislate in relation to betting and<\/p>\n
    gambling, but because of Entry 40 in List I of the<\/p>\n
    Seventh     Schedule        of   the        Constitution,           lottery           is<\/p>\n
    excluded from the ambit of the term                    betting            in Entry<\/p>\n
    34 of List II of the Seventh Schedule and it also<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                     17<\/span><\/p>\n
    stands excluded from the ambit of the term                      betting<\/p>\n
    in Entry 62 of List II of the Seventh Schedule.                             In<\/p>\n
    our opinion, the entire argument is misconceived and<\/p>\n
    against the settled law. In nutshell, the argument of<\/p>\n
    petitioners is that because of Entry 40 in List I of<\/p>\n
    the   Seventh    Schedule,    the    Parliament     has       power         to<\/p>\n
    regulate lotteries run by the State Government, and<\/p>\n
    therefore, it excludes State lotteries from the ambit<\/p>\n
    of the term Betting not only from Entry 34 in List II<\/p>\n
    of the Seventh Schedule but also from Entry 62 of List<\/p>\n
    II of the Seventh Schedule.          The scheme underlying the<\/p>\n
    Seventh   Schedule     of     the     Constitution           has        been<\/p>\n
    considered in a judgment by the Constitutional Bench<\/p>\n
    of the Hon ble Supreme Court in the case                       State of<\/p>\n
    W.B. Vs. Kesoram Industries Ltd. And others, (2004)10<\/p>\n
    Supreme Court Cases 201 .            The observations of the<\/p>\n
    Hon ble Supreme Court in paragraphs 74, 75 and 76 are<\/p>\n
    relevant, they read as under:-\n<\/p>\n
               74.      It is necessary to examine the scheme
\n              underlying    the     Seventh     Schedule             of       the
\n              Constitution.       We are relieved of the need of
\n              embarking    upon    any    maiden    voyage          in      this<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                18<\/span><\/p>\n
     direction in view of the availability of a
\n     Constitution              Bench            decision                     in<\/p>\n
     M.P.V.Sundararamier & Co. Vs. State of A.P.,
\n     Venkatarama     Aiyar,          J.,    speaking            for        the<\/p>\n
     Constitution       Bench,       traced       the      history           of
\n     legislations        preceding          the       Constitution,<\/p>\n
     analysed the scheme underlying the division
\n     of legislative powers between the Centre and
\n     the States and then succinctly summed up the<\/p>\n
     quintessence of the analysis.                      It was held,
\n     inter alia:ig\n<\/p><\/blockquote>\n
       1.In List I Entries 1 to 81 mention the<\/p>\n
         several matters over which Parliament has
\n         authority to legislate. Entries 82 to 92<\/p>\n
         enumerate           the    taxes       which         could          be
\n         imposed        by    a     law    of     Parliament.                An<\/p>\n
         examination           of    these       two        groups           of
\n         entries shows that while the main subject<\/p>\n
         of   legislation            figures       in       the        first
\n         group,     a    tax        in    relation        thereto            is
\n         separately mentioned in the second.\n<\/p>\n
       2.In list II Entries 1 to 44 form one group
\n         mentioning          the    subjects        on      which          the
\n         States could legislate. Entries 45 to 63
\n         in that list form another group, and they
\n         deal with taxes. (AIR p.493, para 51)<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                           19<\/span><\/p>\n
     3.Taxation is not intended to be comprised
\n       in the main subject in which it might on<\/p>\n
       an extended construction be regarded as
\n       included, but is treated as a distinct<\/p>\n
       matter      for       purposes       of        legislative
\n       competence. And this distinction is also<\/p>\n
       manifest in the language of Article 248
\n       clauses (1) and (2) and of Entry 97 in
\n       List    I   of    the   Constitution.            Under         the<\/p>\n
       Scheme      of    the    entries      in      the        lists,
\n       taxation is regarded as a distinct matter<\/p>\n
       and    is   separately      set      out.        (AIR        494,
\n       paras 51 & 55)<\/p>\n
     4.The entries in the legislative lists must<\/p>\n
       be construed broadly and not narrowly or
\n       in a pedantic manner.(AIR p.494, para 56)<\/p>\n
     5.The entries in the two lists                          Lists I<\/p>\n
       and II         must be construed, if possible,
\n       so as to avoid conflict.                   Faced with a
\n       suggested        conflict    between          entries            in
\n       List I and List II, what has first to be<\/p>\n
       decided is whether there is any conflict.\n<\/p>\n
       If     there     is     none,    the        question             of
\n       application of the non obstante clause
\n        subject to           does not arise.                 And, if
\n       there be conflict, the correct approach
\n       to the question is to see whether it was<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                               20<\/span><\/p>\n
       possible          to        effect        a      reconciliation
\n       between the two entries so a s to avoid a<\/p>\n
       conflict and overlapping.\n<\/p>\n
                              Illustration<\/p>\n
             If it is possible to construe Entry
\n       42 in List I as not including tax on
\n       inter-State            sales         it        should            be       so<\/p>\n
       construed and the power to levy such tax
\n       must be held to be included in Entry 54<\/p>\n
       in List II (entries as they existed per-
\n       Forty-second            Amendment,              1976).                (See<\/p>\n
       Governor General in Council V. Province
\n       of Madras and Province of Madras V. Boddu<\/p>\n
       Paidanna & Sons. (AIR<\/a> p.495, paras 56-57)<\/p>\n
     6. In   the    event          of   a   dispute            arising           it
\n       should       be    determined              by      applying             the<\/p>\n
       doctrine of pith and substance to find
\n       out whether between two entries assigned
\n       to     two        different           legislatures                      the
\n       particular         subject           of       the       legislation<\/p>\n
       falls within the ambit of the one or the
\n       other.        Where           there        is       a     clear         and
\n       irreconcilable conflict of jurisdiction
\n       between       the       Centre        and          a      Provincial
\n       Legislature it is the law of the Centre
\n       that must prevail.\n<\/p>\n
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\n                                          21<\/span><\/p>\n
              75.    Referring to M.P.V.Sundararamier & Co.\n<\/p>\n
              Sabyasachi Mukharji, J. (as His Lordship then
\n              was) speaking for six out of the seven Judges<\/p>\n
              constituting         the        Bench    in       Synthetics               and
\n              Chemicals Ltd. V. State of U.P.<\/a> held that<\/p>\n
              under the constitutional scheme of division
\n              of powers in the Seventh Schedule, there are
\n              separate entries pertaining to taxation and<\/p>\n
              other laws.        A tax cannot be levied under a
\n              general entry.\n<\/p>\n
              76.         The abovesaid principles continue to<\/p>\n
              hold   the     field       and    have       been        followed            in
\n              cases after cases.\n<\/p>\n
              General      Power      of       regulation            and       control
\n              does not include power of taxation.\n<\/p>\n
    Applying the principles laid down by the Supreme Court<\/p>\n
    in the above said paragraphs to the present case, it<\/p>\n
    can safely be said that because of Entry 40 of List I<\/p>\n
    of the Seventh Schedule, the State legislature does<\/p>\n
    not   have    power     to   legislate            in    relation             to      the<\/p>\n
    lotteries    organized       by   the       Government           of      India         or<\/p>\n
    Government of State under Entry 34 of List II of the<\/p>\n
    Seventh     Schedule,    but      because         of      that         the        State<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                         22<\/span><\/p>\n
    legislature will not lose its power under Entry 62 of<\/p>\n
    List    II   of    the    Seventh   Schedule    to     impose         tax       in<\/p>\n
    relation to the lotteries organized by the Government<\/p>\n
    of India or other State under Entry 62 of List II<\/p>\n
    treating it as betting.             There is no debate before us<\/p>\n
    on the question that lottery amounts to betting and it<\/p>\n
    was the admitted position.\n<\/p>\n
    10.<\/p>\n
                 It was then contended before us that though<\/p>\n
    there    is        specific    power     vested      in       the          State<\/p>\n
    legislature under Entry 62 of List II of the Seventh<\/p>\n
    Schedule, because of Entry 40 in List I of the Seventh<\/p>\n
    Schedule of the Constitution of India, the Parliament<\/p>\n
    will have legislative competence to levy tax under<\/p>\n
    Article 248 and Entry 97 in List I of the Seventh<\/p>\n
    Schedule      of    the    Constitution    of     India.              In      our<\/p>\n
    opinion, this submission has also no force, because<\/p>\n
    power to tax is not an incidental power and under the<\/p>\n
    residuary power the Parliament will be entitled to<\/p>\n
    impose tax only if that power is not specifically<\/p>\n
    vested in the State legislature by any entry in List<\/p>\n
    II of the Seventh Schedule.              We can draw support for<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                       23<\/span><\/p>\n
    this conclusion reached by us, by what is observed by<\/p>\n
    the Supreme Court in paragraphs 100 to 107 of its<\/p>\n
    judgment in the case of            State of W.B. Vs. Kesoram<\/p>\n
    Industries Ltd. And others              referred to above, they<\/p>\n
    read as under:-\n<\/p>\n
             100.      Article 265 mandates                      no tax shall<\/p>\n
            be levied or collected except by authority of
\n            law.      The igscheme         of    the     Seventh           Schedule
\n            reveals      an      exhaustive              enumeration                   of
\n            legislative       subjects,          considerably              enlarged<\/p>\n
            over the predecessor Government of India Act.
\n            Entry 97 in List I confers residuary powers<\/p>\n
            on      Parliament.            Article          248           of         the
\n            Constitution which speaks of residuary powers<\/p>\n
            of   legislation      confers          exclusive             power         on
\n            Parliament to make any law with respect to<\/p>\n
            any matter not enumerated in the Concurrent
\n            List or the State List.               At the same time, it
\n            provides     that    such           residuary         power          shall
\n            include the power of making any law imposing<\/p>\n
            a tax not mentioned in either of those lists.<\/p><\/blockquote>\n
            It is, thus, clear that if any power to tax
\n            is clearly mentioned in List II, the same
\n            would not be available to be exercised by
\n            Parliament        based        on     the        assumption                of
\n            residuary power.               The seven-Judge Bench in<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                 24<\/span><\/p>\n
     Union    of    India      V.     Harbhajan           Singh         Dhillon<\/a>
\n     ruled, by a majority of 4:3, that the power<\/p>\n
     to legislate in respect of a matter does not
\n     carry with it a power to impose a tax under<\/p>\n
     our     constitutional            scheme.            According               to
\n     Seervai       (Constitutional                 Law         of         India,<\/p>\n
     4th\/Silver Jubilee Edn. Vol.3, para22.191):\n<\/p>\n
             22.191.          Although        in          Dhillon             case\n\n\n\n\n                                     \n     conflicting        view       were     expressed             about         the\n<\/pre>\n
     nature of the residuary power, the nature of<\/p>\n
     that    power      was     stated       authoritatively                      in
\n     Kesavananda        case.          Earlier,         in      Golak         Nath<\/p>\n
     case,    Subba      Rao,        C.J.   (for        himself,            Shah,
\n     Sikri, Shelat and Vaidyalingam, JJ.) had held<\/p>\n
     that Article 368 only provided the procedure
\n     for the amendment of the Constitution, but<\/p>\n
     that the power to amend the Constitution was
\n     to be found in the residuary power conferred<\/p>\n
     on Parliament by Articles 245 and 246(1) read
\n     with    Entry      97   List      I    and     by      Article           248.
\n     Seven out of the nine Judges who overruled
\n     Golak Nath case held, inter alia, that the<\/p>\n
     power to amend the Constitution could not be
\n     located       in        the       residuary               powers             of
\n     Parliament.        Hegde        and    Mukherjea,              JJ.       held
\n     that —\n<\/p>\n
                   It is obvious that these lists have<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                 25<\/span><\/p>\n
     been very carefully prepared. They are by and
\n     large    exhaustive.            Entry       97    in     List        I     was<\/p>\n
     included        to     meet        some          unexpected                and
\n     unforeseen contingencies. It is difficult to<\/p>\n
     believe that our Constitution-makers who were
\n     keenly       conscious      of    the       importance             of      the<\/p>\n
     provision relating to the amendment of the
\n     Constitution         and   debated          that       question            for
\n     several days, would have left the important<\/p>\n
     power hidden in Entry 97 of List I leaving it
\n     to the off chance of the courts locating that<\/p>\n
     power in that entry. We are unable to agree
\n     with those learned Judges when they sought to<\/p>\n
     place reliance on Articles 245, 246 and 248
\n     and Entry 97 of List I for the purpose of<\/p>\n
     locating       the     power       of       amendment             in       the
\n     residuary       power      conferred             on     the        Union.\n<\/p>\n
     (emphasis in original)<\/p>\n
     101.                Similar views were expressed by
\n     five other Judges.              According to Seervai:
\n     “The law laid down in Kesavananda’s Case is
\n     that     if     a     subject          of        legislation               was<\/p>\n
     prominently          present      to     the          minds        of      the
\n     framer of our Constitution, they would not
\n     have left it to be found by courts in the
\n     residuary       power.      It    is     submitted              that           a
\n     fortiori, if a subject of legislative power
\n     was    not    only    present       to       the      minds        of      the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                 26<\/span><\/p>\n
     framers        but        was      expressly              denied             to
\n     Parliament,         it     cannot       be      located            in      the<\/p>\n
     residuary power of Parliament.”\n<\/p>\n
     102.          Vide para 22.194 the eminent jurist
\n     poses a question:\n<\/p>\n
      22.194.           Does Article 248 add anything to
\n     the exclusive residuary power of Parliament<\/p>\n
     under Article 246 (1) read with Entry 97 List
\n     I,    to   make ig  laws     in    respect          of     “any         other
\n     matter” not mentioned in List II and List
\n     III, including any tax not mentioned in those<\/p>\n
     Lists?”\n<\/p>\n
     and    answers       by    saying       __       “The        answer          is<\/p>\n
     ‘No’.”\n<\/p>\n
     103.          As   to     the      riddle       arising            in      the
\n     context       of     mines      and     mineral            development<\/p>\n
     legislation by reference to the Entries in
\n     List I and List II, Seervai states:\n<\/p>\n
            “The    regulation          of     mines          and       mineral<\/p>\n
     development is a subject of exclusive State
\n     legislation,         but     for    the      limitation              placed
\n     upon that power by making it subject to the
\n     provisions         in    that      behalf        in      List        I.      If
\n     Parliament does not exercise its power under
\n     Entry 54, List I, the States’ power under<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                             27<\/span><\/p>\n
     Entry 23, List II would remain intact. If
\n     Parliament   exercised        its     power       under         Entry<\/p>\n
     54,List I, only on a part of the field, as
\n     for    example,   major       minerals,          the        States’<\/p>\n
     legislative power over minor minerals would
\n     remain intact.” (para 22.195 at p.2433)<\/p>\n
     Power to tax must be express, else no power
\n     to tax<\/p>\n
     104.      There
\n                   ig  is        nothing       like      an      implied
\n     power to tax. The source of power which does
\n     not specifically speak of taxation cannot be<\/p>\n
     so interpreted by expanding its width as to
\n     include     therein         the     power        to       tax         by<\/p>\n
     implication or by necessary inference. States
\n     Cooley in Taxation (Vol.1, 4th Edn):\n<\/p>\n
            “There is no such thing as taxation by<\/p>\n
     implication. The burden is always upon the
\n     taxing    authority     to        point    to     the       act       of
\n     assembly which authorizes the imposition of
\n     the tax claimed.” (para 122 at p.278).\n<\/p>\n
     105.      Justice G.P. Singh in Principles of
\n     Statutory    Interpretation               (Eighth         Edition,
\n     2001) while dealing with general principles
\n     of strict construction of taxation statutes<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                   28<\/span><\/p>\n
     states :__<\/p>\n
          “A       taxing    statute              is      to      be       strictly
\n     construed. The well established rule in the<\/p>\n
     familiar         words            of         Lord            Wensleydale,
\n     reaffirmed by Lord Halsbury and Lord Simonds,<\/p>\n
     means     :    “The    subject          is        not       to      be      taxed
\n     without       clear     words          for    that          purpose;            and
\n     also that every Act of Parliament must be<\/p>\n
     read according to the natural construction of
\n     its words”. In a classic passage Lord Cairns<\/p>\n
     stated the principle thus : “If the person
\n     sought to be taxed comes within the letter of<\/p>\n
     the law he must be taxed, however great the
\n     hardship may appear to the judicial mind to<\/p>\n
     be. On the other hand, if the Crown seeking
\n     to recover the tax, cannot bring the subject<\/p>\n
     within the letter of the law, the subject is
\n     free, however apparently within the spirit of<\/p>\n
     law the case might otherwise appear to be. In
\n     other words, if there be admissible in any
\n     statute,        what         is        called             an        equitable
\n     construction, certainly, such a construction<\/p>\n
     is not admissible in a taxing statute where
\n     you can simply adhere to the words of the
\n     statute. Viscount Simon quoted with approval
\n     a   passage      from    Rowlatt,             J.        expressing              the
\n     principle       in     the        following            words         :    “In       a
\n     taxing Act one has to look merely at what is<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                29<\/span><\/p>\n
     clearly       said.      There    is       no     room         for       any
\n     intendment. There is no equity about a tax.\n<\/p>\n
     There is no presumption as to tax. Nothing is
\n     to be read in, nothing is to be implied. One<\/p>\n
     can     only       look    fairly          at      the         language
\n     used.” (at p.635)<\/p>\n
     106.         The    judicial       opinion             of        binding
\n     authority flowing from several pronouncements<\/p>\n
     of this Court has settled these principles:\n<\/p>\n
     (i)     in\n                    \n                    interpreting            a     taxing            statute,\n<\/pre>\n
     equitable considerations are entirely out of<\/p>\n
     place. Taxing statutes cannot be interpreted
\n     on any presumption or assumption. A taxing<\/p>\n
     statute has to be interpreted in the light of
\n     what is clearly expressed; it cannot imply<\/p>\n
     anything which is not expressed; it cannot
\n     import provisions in the statute so                                 as to<\/p>\n
     supply any deficiency; (ii) before taxing any
\n     person it must be shown that he falls within
\n     the ambit of the charging section by clear
\n     words used in the Section; and (iii) if the<\/p>\n
     words        are    ambiguous          and       open          to        two
\n     interpretations,                 the             benefit                   of
\n     interpretation is given to the subject. There
\n     is nothing unjust in the tax-payer escaping
\n     if the letter of the law fails to catch him
\n     on     account      of     Legislature’s                failure            to<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                         30<\/span><\/p>\n
            express       itself    clearly.            (See,       Justice           G.P.
\n            Singh, ibid, pp.638-639).\n<\/p>\n
            107.      Power        to     tax      is    not     an      incidental<\/p>\n
            power.        According           to        Seervai,             although
\n            legislative power includes all incidental and<\/p>\n
            subsidiary power, the power to impose a tax
\n            is not such a power under our Constitution.
\n            It is for this reason that it was held that<\/p>\n
            the power to legislate in respect of inter-
\n            state trade and commerce (Entry 42, List I,<\/p>\n
            Schedule 7) did not carry with it the power
\n            to tax the sale of goods in inter-state trade<\/p>\n
            and commerce before the insertion of Entry
\n            92A in List I and such power belonged to the<\/p>\n
            States under Entry 54 in List                           II. Entry 97
\n            in     List     I      also       militated             against            the<\/p>\n
            contention       that       the     power          to     tax        is      an
\n            incidental power under our Constitution (See:\n<\/p>\n
            Seervai       H.M.:Constitutional                  Law      of       India,
\n            4th\/Silver       Jubilee         Edn,       Vol.3,       para        22.20)
\n            (emphasis supplied).\n<\/p>\n
    It is clear from the above quoted observations that if<\/p>\n
    the power to tax in relation to a subject is clearly<\/p>\n
    mentioned in List II of the Seventh Schedule of the<\/p>\n
    Constitution, the same would not be available to be<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                             31<\/span><\/p>\n
    exercised by the Parliament based on the assumption of<\/p>\n
    residuary power. Entry 62 of List II of the Seventh<\/p>\n
    Schedule     specifically empowers the State legislature<\/p>\n
    to impose tax in relation to the lotteries because<\/p>\n
    admittedly the lotteries are included within the ambit<\/p>\n
    of the meaning of the term                     betting . It cannot be<\/p>\n
    said that the Parliament gets legislative competence<\/p>\n
    to impose tax in relation to the lotteries because of<\/p>\n
    the   residuary<\/p>\n
                            Entry    97     in    List     I      of      the       Seventh<\/p>\n
    Schedule.        Entry 34 of List II of the Seventh Schedule<\/p>\n
    confers      legislative              competence            on         the          State<\/p>\n
    legislature        to     legislate           regulating             betting            and<\/p>\n
    gambling.    As        observed       above,        before        us      it      is      an<\/p>\n
    admitted position that the lottery is included within<\/p>\n
    the ambit of meaning of the term                     betting , therefore,<\/p>\n
    had there been no Entry 40 in List I of the Seventh<\/p>\n
    Schedule,        the    State     legislature              would         have         got,<\/p>\n
    because     of     Entry    34     in        List    II      of      the        Seventh<\/p>\n
    Schedule,     competence          to    legislate            in      relation             to<\/p>\n
    organisation and regulation of the lotteries organised<\/p>\n
    by the State Governments also. The State legislature<\/p>\n
    cannot make law under Entry 34 in List II of the<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                          32<\/span><\/p>\n
    Seventh       Schedule      in    relation      to    organisation                 and<\/p>\n
    regulation      of   lotteries       organised        by     Government              of<\/p>\n
    India and Government of State, because of Entry 40 in<\/p>\n
    List I of the Seventh Schedule of the Constitution by<\/p>\n
    that entry organisation and regulation of lotteries<\/p>\n
    organised by Government of India and Government of<\/p>\n
    State is excluded from the ambit of Entry 34 in List<\/p>\n
    II of the Seventh Schedule of the Constitution.                                      In<\/p>\n
    other words, so far as the term                 betting         appearing in<\/p>\n
    Entry    34    of    List    II    of     the   Seventh          Schedule            is<\/p>\n
    concerned,      it    gives      legislative         competence            to      the<\/p>\n
    State legislature to enact law regulating lotteries<\/p>\n
    which may not be organised by the Government of India<\/p>\n
    or Government of State.             Thus, from the ambit of the<\/p>\n
    term    betting      appearing in Entry 34 in List II of the<\/p>\n
    Seventh       Schedule      of     the     Constitution             of       India,<\/p>\n
    competence to legislate in relation to organisation<\/p>\n
    and    regulation     of     lotteries      organised          only        by      the<\/p>\n
    Government of India and the Government of State has<\/p>\n
    been excluded. Perusal of Entry 62 in List II of the<\/p>\n
    Seventh Schedule of the Constitution shows that it<\/p>\n
    confers legislative competence on State legislature to<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                      33<\/span><\/p>\n
    impose tax among other things on betting and gambling.\n<\/p>\n
    Thus, there is specific entry made in Entry 62 in List<\/p>\n
    II   of   the   Seventh     Schedule    of     the       Constitution<\/p>\n
    conferring power on the State legislation to legislate<\/p>\n
    imposing tax on betting and gambling.                     There is no<\/p>\n
    specific entry in List I of the Seventh Schedule like<\/p>\n
    Entry 40 in List I of the Seventh Schedule of the<\/p>\n
    Constitution conferring legislative competence on the<\/p>\n
    Parliament to impose tax on betting and gambling and<\/p>\n
    therefore, the lotteries organised by the Government<\/p>\n
    of India and State Government will not stand excluded<\/p>\n
    from the meaning of the term            betting          occurring in<\/p>\n
    Entry 62 in List II of the Seventh Schedule of the<\/p>\n
    Constitution.    Therefore,       we   find       that         there          is<\/p>\n
    specific entry in List II of the Seventh Schedule of<\/p>\n
    the Constitution conferring legislative competence on<\/p>\n
    the State legislature to impose tax in relation to the<\/p>\n
    lotteries.      In   view   of   the   law   laid        down       by      the<\/p>\n
    Supreme Court in its judgment in the case                        State of<\/p>\n
    W.B. Vs. Kesoram Industries Ltd. And others                       referred<\/p>\n
    to above the Parliament cannot be said to have power<\/p>\n
    to impose tax in relation to lotteries under residuary<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                        34<\/span><\/p>\n
    Entry 97 of List I of the Seventh Schedule of the<\/p>\n
    Constitution.      Thus, we find that there is absolutely<\/p>\n
    no    substance    in     the     contention      that        the        State<\/p>\n
    legislature did not have competence to legislate the<\/p>\n
    State Act under Entry 62 of List II of the Seventh<\/p>\n
    Schedule of the Constitution.\n<\/p>\n
    11.       Now so far as the submission that the State<\/p>\n
    Act in fact levies tax on sale of lottery tickets is<\/p>\n
    concerned, in our opinion, this submission also does<\/p>\n
    not have any substance.           Looking to the scheme of the<\/p>\n
    Act, it is clear that Draw is used only as a measure<\/p>\n
    of tax.     What is said to be taxed is betting and<\/p>\n
    gambling. From the preamble of the State Act it is<\/p>\n
    clear   that    levy    and     collection   of    tax       is      on      the<\/p>\n
    lotteries      (betting   and     gambling).         The         tax ,         as<\/p>\n
    defined under the State legislation, means the tax<\/p>\n
    levied and collected on lotteries.                The Act does not<\/p>\n
    levy tax on Draws or sale of tickets, the levy of tax<\/p>\n
    is on betting and gambling which is offered within the<\/p>\n
    State of Maharashtra by organising sale of tickets for<\/p>\n
    participation in the lottery.           The measure of levying<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                                            35<\/span><\/p>\n
    of    tax    depends       upon      as     to    whether          the        lottery<\/p>\n
    organised is relating to weekly draw, monthly draw or<\/p>\n
    bumper draw.           It is, thus, clear that levying of tax<\/p>\n
    is not on the draw which takes outside the State.                                     The<\/p>\n
    draw is only a measure of tax and the tax is not<\/p>\n
    imposed on the draw itself.\n<\/p>\n
    12.         We do not find any vagueness in the scheme of<\/p>\n
    the   Act.       Merely<\/p>\n
                               because        the    term       Scheme            is      not<\/p>\n
    defined, the provisions under Section 3 of the Act do<\/p>\n
    not become vague.\n<\/p>\n
    13.         So    far     as   the   submission         that         exercise           of<\/p>\n
    legislative power is colourable is concerned, in our<\/p>\n
    opinion, once we find that there is clear legislative<\/p>\n
    competence        in    the    State      legislature           to      legislate,<\/p>\n
    there is no exercise of power being colorable                                   merely<\/p>\n
    because      earlier a particular type of tax was levied<\/p>\n
    which was found to be not legal.                             So far as the<\/p>\n
    submission that the State Act has been enacted to make<\/p>\n
    the business of selling of lottery tickets of the<\/p>\n
    lotteries organised by the other States unviable is<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>
\n                              36<\/span><\/p>\n
    concerned, we find from the petition that there is no<\/p>\n
    material placed in support of this submission, and<\/p>\n
    therefore, it is not possible for us to examine this<\/p>\n
    submission.\n<\/p>\n
    14.     Taking overall view of the matter, therefore,<\/p>\n
    we do not find any substance in these petitions. They<\/p>\n
    are liable to be dismissed. They are, accordingly so,<\/p>\n
    ordered to be dismissed. Rule discharged. No order as<\/p>\n
    to costs.\n<\/p>\n
                                     (D.K.DESHMUKH, J.)<\/p>\n
                                     (R.S.MOHITE, J.)<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 14:54:11 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-151805","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nN.V.Marketing Pvt.Ltd vs State Of Maharashtra & Others on 14 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-v-marketing-pvt-ltd-vs-state-of-maharashtra-others-on-14-august-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.V.Marketing Pvt.Ltd vs State Of Maharashtra & Others on 14 August, 2009 - 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