IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO.

OF 2015

(under Rule 4(c) of the Bombay High Court Public Interest Litigation Rules, 2010)

In the matter of Article 226 of the

Constitution of India;
And
In the matter of provisions of Article 245
and 246 of the Constitution of India;
And
In the matter of Entry 34 and Entry 62 of
List II of Seventh Schedule of the
Constitution of India;
And
In the matter of Articles 196 and 200 and
of the Constitution of India;
And
In the matter of Sections 1(3), 7(1) and
18 of the Maharashtra Casinos (Control
and Tax) Act, 1976 (Maharashtra Act No.
XXXI of 1976);
And
In

the

matter

of

arbitrary

and

unreasonable delay on the part of

Respondent

in

not

notifying

the

Maharashtra Casinos (Control and Tax)

Act, 1976 (Maharashtra Act No. XXXI of
1976) and Rules thereunder.

IN THE MATTER OF:

JAY N. SAYTA

an individual of Mumbai,

aged 22 years, Indian Inhabitant,

Occupation: student, having his

address at [],

[]

[]

E-mail:- []

Mobile:- []

PETITIONER

VERSUS
STATE OF MAHARASHTRA

Mantralaya, Nariman Point

Mumbai

Through Government Pleader

Bombay High Court

RESPONDENT

TO
THE HONBLE CHIEF JUSTICE AND OTHER
PUISNE JUDGES OF THIS HONBLE COURT.
THE HUMBLE PETITION OF THE
PETITIONER ABOVENAMED:
MOST RESPECTFULLY SHEWETH:
1.

The Petitioner is a citizen of India. The Petitioner is currently a final year law
student at the WB National University of Juridical Sciences (NUJS), Kolkata
who is interested in gaming law, sports law, commercial law and public policy.
The Petitioner has researched extensively on gambling, betting and lottery
laws in India and published several articles in academic journals and
periodicals. The Petitioner has also been cited by various media houses and
2

journals as an expert. He has helped leading newspapers, including the Times

of India, Mint, Financial Times, etc. in their stories on gaming laws. In 2010 the
Petitioner started a website, http://glaws.in/, which is a first of its kind website
in India monitoring gambling law developments in India and urging for reforms
in the current gambling legislations. In the year 2014, the Petitioner was a
speaker in a panel discussion on the topic Games of skill in India: The poker
and rummy case in the ICE Totally Gaming conference in London, United
Kingdom. The event was supported by the Federation of Indian Chambers of
Commerce and Industry (FICCI) and attended by legal experts, bureaucrats
and industry experts. During his research, the Petitioner has inter alia taken
up the following issues in relation to gambling laws in India:a.

Published an article, titled Time Ripe for Gambling Law Reforms, on

the need to legalise sports betting and gambling in The Statesman, a
leading national daily.

b.

Published an article titled Legality of poker and other games of skill: A

critical analysis of Indias gaming laws in NUJS Law Review, a leading
academic journal.

c.

Published an article titled Lessons from the BCCI affair on the merits
of the National Sports Development Bill in national daily, The
Statesman.

d.

Published an article titled Legislative agenda for the new Sports

Minister on need for reforms in sports legislations in the leading
sports/news portal Sportskeeda and on Yahoo News.

e.

Quoted as an expert in article titled Sikkim state gaming license delay

ends in business journal, World Online Gambling Law Report.

f.

Research paper on legality of poker quoted in news report titled

Gambling goes poker faced in The Times of India.

g.

Quoted as an expert on Indias betting laws in the story India and

betting: if you cant stop it, legalise it? published in leading
International newspaper Financial Times.

2.

The Respondent is the State of Maharashtra, who has failed to notify the
Maharashtra Casinos (Control and Tax) Act, 1976 (Maharashtra Act No. XXXI
of 1976).

3.

The present Petition under Article 226 of the Constitution of India is being filed
by way of Public Interest Litigation and the Petitioner has no personal interest
in subject matter of the Petition.

4.

The Petition is filed in the interest of Public. The Petition has been verified by
the Petitioner. The Petitioner is filing the present Petition purely in public
interest, on his own and not at the instance of any other person or
organization. The litigation costs are to be borne by the Petitioner.

5.

The instant petition is filed in the public interest seeking a direction to notify
the Maharashtra Casinos (Control and Tax) Act, 1976 (Maharashtra Act No.
XXXI of 1976) and Rules thereunder, which was passed in 1976 by the
Maharashtra Legislative Assembly and also received the assent of the
Governor of Maharashtra. In the alternative, the Petitioner is seeking direction
to the Respondent to consider as to whether a notification should be issued to
bring into effect the said Act.

6.

The facts of the case in brief are:

6.1

The Petitioner, during his research on gambling laws in India, came

across an Act titled The Maharashtra Casinos (Control and Tax) Act,
1976 (Maharashtra Act No. XXXI of 1976) which appeared to legalize
casinos, betting and wagering in the State of Maharashtra. Hereto
annexed and marked as Exhibit A is a copy of the Act as published
by the Government of Maharashtra, Law and Judiciary Department,
which was first published in the Maharashtra Government Gazette on
22 July 1976.
4

6.2

As part of the Petitioners research on The Maharashtra Casinos

(Control and Tax) Act, 1976 (Maharashtra Act No. XXXI of 1976), the
Petitioner became interested to know the reasons as to why it had not
been implemented by the Respondent. Therefore, the Petitioner on 6
May 2013 made an application under the Right to Information Act,
2005 to the State Public Information Officer, Law and Judiciary
Department, Government of Maharashtra to obtain information
regarding the Maharashtra Casinos (Control and Tax) Act, 1976. By
letter dated 21 May 2013 the Law and Judiciary Department directed
the Petitioner to take inspection and take certified copies of records on
the Bill file available in the department office.

6.3

On 27 May 2013 the Petitioner took inspection of the documents

available with the department including (i) statement of objects and
reasons, (ii) legislative procedure, (iii) legislative proceedings, (iv)
correspondence

between

the

legislative

departments

and

the

Governor. From the responses received from the department and his
inspection of the documents, it came to the Petitioners notice that the
Maharashtra Legislative Assembly had already passed the Act and the
same was assented to by the Governor on 22 July 1976. Hereto
annexed and marked as Exhibit B is a copy of the RTI application
dated 6 May 2013 together with correspondence exchanged between
the Law and Judiciary department and the Petitioner. Thereafter, on 29
January 2015 the Petitioner has filed a fresh application under the
Right to Information Act, 2005 seeking similar and more information
pertaining to the Maharashtra Casinos (Control and Tax) Act, 1976.
Hereto annexed and marked as Exhibit C is a copy of the RTI
application dated 29 January 2015, receipt of which is duly
acknowledged by the department.
6.4

On 29 November 2014, the Petitioner wrote an article titled Law Left in

Limbo published in national daily The Statesman, on the fact that the
Act had been kept in abeyance and had not been notified till date by
5

the Respondent. The Petitioner argued that no executive government

can allow a legislation to remain on statute books for a long period of
time without applying its mind as to the need to notify it, and that the
Respondent is morally and legally responsible to holistically decide the
issue of gambling law reforms in a transparent, dispassionate and
time-bound manner. Hereto annexed and marked as Exhibit D is a
copy of the article dated 29 November 2014.
6.5

On 5 December 2014, the Petitioner addressed a letter to Mr.

Devendra Fadnavis, the Honble Chief Minister of Maharashtra, setting
forth the above facts and requesting the Honble Chief Minister to look
into the matter and consider immediately implementing the Act. Hereto
annexed and marked as Exhibit E is a copy of the letter dated 5
December 2014. The Petitioner has not received any reply to the letter
dated 5 December 2014, from the Chief Ministers Office or any other
government department till date.

6.6

CONSTITUTIONAL FRAMEWORK FOR STATE LEGISLATION ON

THE SUBJECT: BETTING AND GAMBLING:

6.6.1

Part XI of the Constitution of India provides for relations

between the Union and the State. Article 245 provides that the
Union Government will have power to make laws for the whole
part of India or any part thereof and the State Government will
have power to make laws for the whole state or any part
thereof.

6.6.2

Article 246 of the Constitution of India provides for distribution

of power. It empowers the Central Government to make laws in
respect of subject falling in List I to the Seventh schedule. The
Article further empowers the State Government to make laws
with respect to subjects in List II to the Seventh schedule. The
Constitution distributes the powers to legislate on various
6

subjects between the Union and State legislatures by way of

lists under its Seventh Schedule.
6.6.3

Betting and gambling appear as a State subject in Entry 34 of

List II, i.e. the State List in Seventh Schedule. Further, Taxes
on luxuries, including taxes on entertainments, amusements,
betting and gambling appears as a State subject in Entry 62 of
List II. Consequently, only the State legislature is empowered to
legislate on the subject of betting and gambling and all powers
of legislation vest with the States to the exclusion of
Parliament.

6.6.4

The State of Maharashtra has, in exercise of its exclusive

powers to legislate on betting and gambling, legislated an Act,
namely, the Maharashtra Casinos (Control and Tax) Act, 1976
(Maharashtra Act No. XXXI of 1976).

6.7

OVERVIEW OF INDIAN GAMBLING LAWS:

6.7.1

Prior to independence, the Public Gambling Act, 1867

governed betting and gambling in India. The Act is a central law
that prohibits running or being in charge of a public gaming
house. Post-independence, most States have enacted State
laws governing gambling and betting that are based on the
central legislation i.e. Public Gambling Act, 1867. Some of the
State laws that are enacted pertaining to gambling and betting
activities are West Bengal Gambling and Prize Competition Act,
1957, Punjab Public Gambling Act, 1961, Kerala Gambling Act,
1960, Goa, Daman and Diu Public Gambling Act, 1976, Sikkim
Regulation

of

Gambling

(Amendment)

Act,

2005

etc. Consequently even Maharashtra enacted the Bombay

Prevention of Gambling Act, 1887, (now known as the
Maharashtra Prevention of Gambling Act, 1887,) which is
based on the central legislation.
7

6.7.2

The Central Lotteries (Regulation) Act, 1998 permits states to

hold lotteries, subject to a maximum of one draw per week.
Various state governments including, significantly, the state of
Maharashtra hold several lottery draws under various schemes.

6.7.3

In the year 2008, the Sikkim State Legislative Assembly also

passed the Sikkim Online Gaming (Regulation) Act, 2008 which
came into force from July 2009. The Act provides for regulating
online gaming in Sikkim, which was originally limited to poker
and casino games, such as, Black Jack, Pontoon, Bingo,
Poker, Baccarat etc. The Act was subsequently amended in
August 2009 to make online sports betting in Sikkim legal,
subject to the operator holding a license granted by the
Government of Sikkim. Thus, Sikkim is the only state in India
that explicitly permits online betting in sports through websites
whose servers are based in Sikkim.

6.7.4

The Public Gambling Act, 1867 stipulates that the provisions of

the Act shall not be applied to any games of skill. The Hon'ble
Supreme Court in the case of Dr. K.R Lakshmanan v. State of
Tamil Nadu [AIR 1996 SC 1153] regarded horse racing as a
game of skill and observed as follows: "Betting on horse racing
or athletic contests involves the assessment of a contestant's
physical capacity and the use of other evaluative skills [W]e
hold that the horse-racing is a game where the winning
depends substantially and preponderantly on skill." Various
states such as Maharashtra, Delhi, Tamil Nadu, Karnataka,
West Bengal, Assam have exempted horse racing activity from
the ambit of gambling activity. Similarly in Andhra Pradesh vs.
K. Satyanarayana, [AIR 1968 SC 825] the Hon'ble Supreme
Court held that, the card game Rummy is mainly and
preponderantly a game of skill.
8

6.8

STATES WHICH HAVE PERMITTED CASINOS IN INDIA

6.8.1

Most of the States have passed enactments as described

above prohibiting gambling and betting (other than exceptions
like horse racing, some card games etc.) but two states i.e.
Goa (along with Daman and Diu) and Sikkim have legalized
many forms of gambling and betting. Goa and Sikkim are the
only two states which permit the setting up of casinos.

6.8.2

The Goa, Daman and Diu Public Gambling Act, 1976,

authorizes, with prior permission of the State Government, any
game of electronic amusement/ slot machines in five star hotels
and such table games and gaming on board in offshore
vessels, as may be notified, subject to such conditions
including the payment of recurring and non-recurring fees.

6.8.3

The Sikkim Casino Games (Control and Tax Rules), 2002

authorizes the Sikkim Government to grant licenses to
individuals and businesses that are interested in operating a
casino within the State. Also, the Sikkim Regulation of
Gambling

(Amendment)

Act,

2005

gives

the

Sikkim

Government the authority to authorize gambling on certain

days and to make certain gambling houses legal at their own
discretion by way of grant of license.
6.8.4

In FY 2013-14, State of Goa earned revenue of over INR 135

crores from tax on the gambling industry. Goa accounts for 95
percent of all legal gambling in the country.

6.9

ARGUMENTS IN FAVOUR OF LEGALIZING GAMBLING IN INDIA

6.9.1

It has been argued that the benefits of legalizing betting and

gambling are wide-ranging. A 2010 report by KPMG titled
Online Gaming: A Gamble or a Sure Bet has estimated that
the Indian gambling market was then worth US$60 billion.
9

Based on the above figures FICCI in its report titled Regulating

Sports Betting in India- A vice to be tamed? has estimated
possible revenue to the government of between INR 12,000
crores to INR 19,000 crores per year. Several experts and
commentators have also on various occasions emphasized that
gambling should be legalized and efforts should be made to
earn revenues.
6.9.2

In October 2013, pursuant to a conference organized by FICCI

and the Commonwealth Lawyers Association (CLA) on
Regulating Sports Betting and Sports Law, FICCI released an
extensive research paper titled Regulating Sports Betting in
India with inputs from individuals and organizations that are
considered experts on the subject. The paper gives an
overview of betting laws around the world. The paper
acknowledges the considerable increase to state revenue that
tax on legalized gambling will bring to India. The paper also
deals with the menace of match-fixing and illegal betting
around the world. The paper concludes: Many countries have
found that the best way to monitor suspicious activity in sport
and irregular patterns is to recognize the industry and regulate
and strictly monitor it.

6.9.3

Mr. K.T.S. Tulsi, Senior Advocate Supreme Court of India, is an

eminent lawyer and expert in the field of sports law. As part of
the FICCI-CLA conference in October 2013, a paper written by
Mr. K.T.S. Tulsi titled Existing Sports Law in India: Legality of
Betting, Criminalization of Sports and Adequacy of Anti-Doping
Laws was circulated. Mr. Tulsi urges:
The practice of betting is purely contractual in nature
and betting should not be illegal only because its
immoral even though it is not violative of any
persons right. Moreover, legalizing betting would
enable the government to put more checks and
10

balances and it ensure transparency, which would

indeed be a blessing in disguise. The revenue
generated from legalizing betting could be used for
betterment of sports, impart world class training to
our sportsmen and develop better infrastructure in
our country which by and large is quite primitive
Hereto annexed and marked as Exhibit F is a copy of the
paper written by Mr. K.T.S. Tulsi.
6.10

THE MAHARASTRA CASINOS (CONTROL AND TAX) ACT, 1976

(MAHARASHTRA ACT NO. XXXI OF 1976):
6.10.1 L.A. Bill No. XXXIV of 1976 was published in the Maharashtra
Government Gazette on 21 June 1976. The Statement of
Objects and Reasons of the Bill is reproduced below:
Taking into account the increasing tourist traffic in
the State of Maharashtra, particularly foreign tourist
traffic, as also the need to raise additional revenues
for the State, it is considered expedient to provide
for the licensing of casinos in the State of
Maharashtra, for the taxation of moneys stakes on
games of betting or wagering played therein, and
also to regulate the functioning of such licensed
casinos under a system of adequate controls.
2. This Bill to provide for the licensing of casinos
and for the taxation of moneys staked in casinos
games seeks to achieve the above objectives.
Thus it appears that the reasons for introduction of the Bill were
primarily to increase tourism and to raise additional revenues in
Maharashtra

by

licensing

and

regulating

casinos

and

introducing taxation on games of betting or wagering therein.

Hereto annexed and marked as Exhibit G is a copy of the Bill
as published in the Maharashtra Government Gazette on 21
June 1976 together with the Statement of Objects and Reasons
thereof.

11

6.10.2 The Bill was passed by the Maharashtra Legislative Assembly

under Article 196 Constitution of India and received the assent
of the Governor of Maharashtra under Article 200 of the
Constitution of India on 19 July 1976; and was published as
The Maharashtra Casinos (Control and Tax) Act, 1976
(Maharashtra Act no. XXXI of 1976) in the Maharashtra
Government Gazette on 22 July 1976.
6.10.3 The Act provides for licensing of casinos, permitting certain
types of casino games in the licensed casinos, taxation on
moneys paid or agreed to be paid by the participants by way of
stakes or bets at any casino game played at any licensed
casino at a rate to be prescribed (not exceeding 25%),
submission of accounts to the Respondent relating to the
casino, punishment for contravention of the provisions of the
Act, and other connected provisions.
6.10.4 Section 1(3) provides that the Act shall come into force on such
date as the Respondent herein may, by notification in the
Official Gazette, appoint. Despite receiving the assent of the
Governor as far back as 1976, the Respondent herein has
arbitrarily failed to notify the date on which the Act shall come
into force to date, over 38 years after the Act received the
assent of the Governor.
6.10.5 The Respondent is required to prescribe rules pertaining to
various issues under the Act. Section 18 empowers

the

Respondent to make rules for carrying out the purposes of the

Act, inter alia for the following matters:
(a)

The games of wagering or betting which shall be casino

games for the purposes of the Act and the rules to be
observed in playing such games;

12

(b)

The form and manner of making application for a

license and the fees to be paid for its grant or renewal
and the conditions subject to which it may be granted;

(c)

The manner of keeping accounts relating to a casino,

other particulars to be shown in the accounts, and the
form in which and the intervals at which they shall be
submitted to the State Government, or to the officer
authorized;

(d)

The restrictions or conditions with regard to the age of

the persons who may be admitted to, or employed in, a
casino or who may be permitted to play casino games
or otherwise take part in the organization or exhibitions
of such games;

(e)

The other restrictions or conditions with regard to the

admission of the participants and guests to a casino
and the fees, if any, to be charged for their admission;

(f)

The hours and days when a casino may be kept open;

(g)

The types and specifications of the places which may

be used for housing a casino and the localities where
the casinos may be situated and the maximum number
of licenses which may be granted in any area or locality;

(h)

The types of notices to be exhibited and the manner in

which they are to be exhibited in or outside a casino;

(i)

The restrictions or conditions with regard to providing

credit facilities by the licensee to the participants in
casino games and the prohibition or regulation of
participation by proxy in casino games;

13

(j)

Any other matter which is required to be or may be

prescribed.

However to date no such rules with relation to any of the above

have been prescribed by notification in the Official Gazette.
6.10.6 Section 7(1) of the Act stipulates that there shall be levied and
collected and paid a tax, to the Respondent out of all moneys
paid or agreed to be paid by the participants by way of stakes
or bets at any casino game played at any casino licensed
under the Act, at such rate not exceeding 25 percent of all such
moneys, as the Respondent may, by notification in the Official
Gazette, specify in this behalf. Further, such portion of such
moneys as is equal to the amount of tax so levied shall be
deemed to have been paid by the participants on account of
the tax and shall be collected by the licensee at every game on
behalf of the Respondent and paid to the Respondent or an
officer authorized by the Respondent in this behalf in the
manner that may be prescribed.
However till date, no rate of tax has been notified in the Official
Gazette, nor has the manner of collection of the tax been
prescribed.
6.10.7 Thus the Respondent has arbitrarily and unreasonably kept in
abeyance the Act by not notifying the same under Section 1(3)
and not notifying the rules to be prescribed under the Act, as
above.
7.

The Petitioner seeks to assail the inaction of the Respondent in not

implementing the Act by notifying it and the rules thereunder in the Official
Gazette till date, despite the fact that it remains in the statute book over thirtyeight years after it received the assent of the Governor on 22 July 1976. The
Honble Supreme Court and various High Courts have on several occasions
come down heavily on governments for not notifying legislation and not
14

applying its mind for several years despite clear legislative intent to the
contrary.
8.

In Aeltmesh Rein v. Union of India [AIR 1988 SC1768], the Honble Supreme
Court had considered the issue as to why the Union of India should not be
directed to consider the question of issuing a notification bringing into force
Section 30 of the Advocates Act, 1961. The Act had received the Governors
assent on 19 May 1961. Several Chapters of the Act were brought into force
on different dates thereafter. However, Section 30, which permits advocates to
practice in courts throughout the territory of India, had not yet been brought
into force at the time of filing the writ petition, 27 years later. The Court issued
writ of mandamus to the Central Government to consider within a period of six
months whether Section 30 of the Act should be brought into force or not. The
Full Bench Honble Supreme Court, taking into consideration the judgment of
a Constitution Bench of the same court in A.K. Roy v. Union of India [1982
CriLJ 340] held as follows:
Every reasonable power vested in the Executive should be
exercised in a just, reasonable and fair way. That is the essence of
the rule of law. The Act was passed in 1961 and nearly 27 years
have elapsed since it received the assent of the President of India.
In several conferences and meetings of lawyers resolutions have
been passed in the past requesting the Central Government to bring
into force Section 30 of the Act. It is not clear whether the Central
Government has applied its mind at all to the question whether
Section 30 of the Act should be brought into force. In these
circumstances, we are of the view that the Central Government
should be directed to consider within a reasonable time the question
whether it should bring Section 30 of the Act into force or not.
(emphasis supplied)

Hereto annexed and marked as Exhibit H is a copy of the judgment of the

Honble Supreme Court in Aeltmesh Rein v. Union of India.
9.

In Aiswarya Freight Carrier v. Union of India & Anr. [2004 WritLR 362], the
Madras High Court decided the issue of whether a writ of mandamus could be
issued directing the Union of India to enforce the Hire Purchase Act, 1972
15

from a particular date. The Hire Purchase Act, 1972 (Act 26 of 1972) had
received the assent of the President more than thirty years prior. The Honble
Court issued a writ of mandamus to the Central Government to consider as to
whether a notification should be issued to bring into effect the Hire Purchase
Act, 1972. The Honble Court held as under:
More than 30 years have elapsed since the Hire Purchase Act was
enacted. The Central Government was vested with the power to
issue notification to bring into effect such Act. Even though 3
decades have passed, no notification has been issued by the
Central

Government

[h]aving

regard

to

the

facts

and

circumstances of the case and keeping in view of the decision

Aeltmesh Rein v. Union of India, I feel it is a fit and proper case
where the Writ of Mandamus should be issued to the Central
Government to consider as to whether a notification should be
issued to bring into effect the Hire Purchase Act. This may be
considered by the Central Government within a period of six months
from the date of receipt of copy of this order. (emphasis supplied)
Hereto annexed and marked as Exhibit I is a copy of the judgment in
Aiswarya Freight Carrier v. Union of India & Anr.
10.

In the English case Secretary of State for the Home Department, ex parte Fire
Brigades Union [(1995) 2 AC 513 (HL)], the Home Secretary was empowered
by the Parliament under Section 117(1) to bring into force Sections 108 to 117
of the Criminal Justice Act 1988. A majority of the House of Lords held that it
was unlawful for the Home Secretary to introduce a tariff scheme which was
incompatible with Sections 108 to 117. In this regard, Lord Browne-Wilkinson
held as follows:
It does not follow that, because the Secretary of State is not under
any duty to bring the section into effect, he has an absolute and
unfettered discretion whether or not to do so. So to hold would lead
to the conclusion that both Houses of Parliament had passed the
Bill through all its stages and the Act received the Royal Assent
merely to confer an enabling power on the executive to decide at
will whether or not to make the parliamentary provisions a part of
the law. Such a conclusion, drawn from a section to which the

16

sidenote is "Commencement", is not only constitutionally dangerous

but flies in the face of common sense.
Thus, Executive discretion to bring into force an Act of the Legislature, or
some of its provisions, at a later date does not include the choice of never
bringing it into force, and the Executive is under an obligation to keep the
matter under continuing review. Hereto annexed and marked as Exhibit J is
a copy of the judgment in Secretary of State for the Home Department, ex
parte Fire Brigades Union.
11.

In light of the above, it is incumbent upon the Respondent to apply its mind
and consider whether or not it intends to bring into effect the Maharashtra
Casinos (Control and Tax) Act, 1976 and rules thereunder, and whether or not
the time has come for the same.

12.

It is settled law that a Constitutional authority cannot do indirectly what it is not

permitted to do directly. If the Legislature of the state has passed a law and
the same has received the assent of the Governor, the Executive cannot
ignore the intent of the Legislature by not notifying the Act for a very long
period, even if it is given the discretion to implement it when it deems fit. At the
very least, the Executive is required to apply its mind as to whether the time
has come for the enforcement of the Act or not, or whether it intends to
enforce the Act at all. If there is a Constitutional provision permitting the
Legislature to legislate on a subject in List II of the Seventh Schedule of
Constitution of India, such provision cannot be allowed to be defeated by
adoption of any subterfuge on part of the Executive. The power vested by the
Legislature in the Executive by Section 1(3) of the Act, which is in the category
of the delegated legislation, has to be exercised by the latter for bringing into
force the provisions of the Act. The Executive is bound to implement the will of
the Legislature and cannot keep the Act in a state of perpetual abeyance. By
not enforcing the Act, the Respondent has tried to violate this enshrined basic
canon of the Constitution, which is invalid in the eyes of law. Therefore, the
Petitioner is filing the present PIL, on the following questions of law and the
following grounds, which are without prejudice to one another:
17

QUESTIONS OF LAW
13.

The following substantial questions of law of arise from the present petition.

A.

Whether the will of the Legislature can be circumvented and not given
effect to by the Executive contrary to the explicit provisions contained
in the Constitution of India, by keeping in abeyance an Act which was
enacted over thirty-eight years ago?

B.

Whether the Executive may be permitted to not make clear whether or

not it intends to enforce the Maharashtra Casinos (Control and Tax)
Act, 1976 and rules thereunder, passed by the legislature over thirtyeight years ago?

C.

Whether the manner in which the Executive has failed to take action to
enforce the Maharashtra Casinos (Control and Tax) Act, 1976
constitutes an attempt to undermine the Constitutional machinery?

GROUNDS
14.

That the present Petition

has been filed on the following amongst other

grounds :
A.

The inaction of the Executive in not notifying the Maharashtra

Casinos (Control and Tax) Act, 1976, by not giving effect to the will of
the Legislature, violates the basic constitutional principle of separation
of powers.

B.

The right to legislate on the subject of Betting and gambling is a

power vesting with States alone, as a result of its inclusion in Entry 34
of the State List in the Seventh Schedule to the Constitution of India.
Further, the intent to reserve this subject to states legislatures is reenforced by the inclusion of Entry 62 of the State List in the Seventh
Schedule in the following terms:

18

Taxes on luxuries, including taxes on entertainments,

amusements, betting and gambling.
The State Legislature had admittedly felt it necessary to provide for the
control of regulation of casinos, and to impose a tax on betting in
casinos.
C.

The State Legislature is a creature of the Constitution. The Executive

cannot by virtue of its discretion granted to it by the Legislature,
frustrate the intention of the Legislature. The inaction of the Executive
is in direct conflict with the structure of the Constitution which
empowers the Legislature to legislate and the Executive to implement
such legislation.

D.

The inaction of the Executive shakes the very foundation of the

separation of Powers, i.e. the Executive and Legislature (which is a
fundamental precept of the Constitution of India).

E.

The inaction and stony silence by the Respondent is otherwise

arbitrary and unjustified. Respondent is not allowed to leave the matter
to lie over without applying its mind to the question whether it should
bring the Act into force or not.

F.

By keeping in abeyance the Maharashtra Casinos (Control and Tax)

Act, 1976 including the Rules and rate of tax to be prescribed
thereunder, the Executive has attempted to do, under the guise of its
constituent power, what it cannot otherwise do in exercise of its
executive power. As a result, the Executive has usurped the State
Legislatures legislative powers in respect of Betting and Gambling
and has consequently undermined the principle of separation of
Powers, embodied in the Constitution of India.

G.

The inaction and delay in enforcement of Maharashtra Casinos

(Control and Tax) Act, 1976, cannot be used as a device to indirectly
legislate by the Executive, when directly it is prohibited.
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H.

The separation of powers structure set out by the Constitution

includes its empowerment of Legislature to exclusively legislate and its
preservation of Legislatures exclusive and independent powers to do
so. These features must be respected by the Executive as they give
effect to the basic feature of separation of powers and legislation by
the Legislature.

I.

Common Dictionaries define that to defraud as equivalent to

deceive but when a Constitutional Authority i.e. Executive branch of a
State government deceives the living and evolving organism, the
highest legal instrument, i.e. the Constitution, it is called a
Constitutional Fraud upon the people and the founding fathers of this
great nation.

J.

The Honble Supreme Court has held in D.C. Wadhwa v. State of

Bihar [AIR 1987 SC 579] that any attempt to undermine the intent
behind the requirements provided for in the Constitution would be
treated as dishonest and as a fraud on the Constitution. Specifically,
it held:
A constitutional authority cannot do indirectly what it is
not permitted to do directly. If there is a constitutional
provision inhibiting the constitutional authority from
doing an act, such provision cannot be allowed to be
defeated by adoption of any subterfuge. That would be
clearly a fraud on the constitutional provision.
The State Legislatures exclusive mandate to legislate on topics
mentioned in the State List of the Seventh Schedule cannot be
undermined by the Executive by delaying enforcement of the
Maharashtra Casinos (Control and Tax) Act, 1976 for so long as to
frustrate it. Instead, if the Executive has no intention of enforcing the
Act, it would require the Legislatures consent by repealing or
amending the Act. Otherwise it would result in shrinking the

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Legislatures exclusive powers to legislate and would be a fraud on the

Constitution.
K.

The discretion given to the Executive under Section 1(3) of the

Maharashtra Casinos (Control and Tax) Act, 1976, while being an
exercise of delegated legislation rather than an exercise of ordinary
legislative power, is not unlimited and remains subject to judicial
review. As a result, the exercise of legislative power to implement must
also be compliant with the basic tenet of separation of powers. Any
attempt to re-allocate the powers to legislate is clearly in violation of
the separation of powers doctrine encapsulated in the Constitution of
India.

L.

The inaction of the Executive for over thirty-eight years has the
unmistakable effect of transferring the legislative power from the
Legislature to the Executive. This transfer is achieved in all substantive
respects.

M.

Gambling is currently a criminal offence under the Maharashtra

Prevention of Gambling Act, 1887, and individuals are facing criminal
prosecution for indulging in the same. Under the Maharashtra Casinos
(Control and Tax) Act, 1976, gambling in licensed casinos was
envisaged to be legalized thirty-eight years ago. Individuals are
suffering criminal prosecution and penalties due to the inaction of the
Respondent in not notifying the Act.

N.

The inaction of the Executive though in the nature of exercise of

discretion granted to it by the statute itself, is not so as eventually it
encroaches on the occupied field of the legislation thus its a patent
case of transgression of Constitutional power.

O.

Any other submissions which may be canvassed at the time of

hearing of the Petition.

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15.

The Petitioner has not filed any other Appeal or application or Writ Petition
either before this Honble Court or Honble Supreme Court of India or before
any other Courts on the same subject matter of this Petition.

16.

Petitioner states and submits that they have no other equally alternative
efficacious remedy than this Petition under Article 226 and 227 of Constitution
of India.

THE PETITIONER THEREFORE PRAYS:

(a)

that this Hon'ble Court be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the like nature of mandamus thereby
directing the Respondent to notify the Maharashtra Casinos (Control and Tax)
Act, 1976 (Maharashtra Act No. XXXI of 1976) and frame Rules and propose
rate of tax to be prescribed thereunder;

(b)

that in the alternative, this Hon'ble Court be pleased to issue a writ of

mandamus or any other appropriate writ, order or direction in the like nature of
mandamus thereby directing the Respondent to consider in a time bound
manner, whether a notification should be issued to bring into effect the
Maharashtra Casinos (Control and Tax) Act, 1976 (Maharashtra Act No. XXXI
of 1976) and Rules and rate of tax be framed and prescribed thereunder,

(c)

Costs of this Petition be awarded;

(d)

Such further and other relief, order or direction which may be just, fit, proper
and equitable in the facts and circumstances of the Petition.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND

FOREVER PRAY.
Petition drafted by us

M/s. Hariani & Co.

Advocates & Solicitors
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Mr. Jay N. Sayta

(Petitioner)

VERIFICATION

I, Mr. Jay N. Sayta, of Mumbai Indian Inhabitant, Petitioner herein, having my address
at [...], do hereby solemnly declare that what is stated in the paragraph Nos. 1 to 6
except for 6.9, and Para No. 15 is true to the best of my knowledge and that what is
stated in remaining paragraphs Nos. 6.9, 7 to 14 and 16 is based on the information
and belief which I believe the same to be true.

Solemnly declared at Mumbai

Dated this

day of February 2015

Before me.
For M/s. Hariani & Co.

Partner
Advocates for the Petitioner

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