IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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,

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aged 22 years, Indian Inhabitant, )

Occupation: student, having his)

address at [],

)

[]

)

[]

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E-mail:- []

) Mobile:- []

)PETITIONER

VERSUSSTATE OF MAHARASHTRA

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Mantralaya, Nariman Point

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Mumbai

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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 WBNational 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 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.

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 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 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.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 ofDr. 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.6.8 STATES WHICH HAVE PERMITTED CASINOS IN INDIA6.8.1 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 INDIA6.9.1 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. 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 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 primitiveHereto 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.

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;

(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;

(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 thirty-eight 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 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 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 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:QUESTIONS OF LAW13. 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 thirty-eight 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?GROUNDS14. 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 re-enforced by the inclusion of Entry 62 of the State List in the Seventh Schedule in the following terms: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.

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 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.

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

Mr. Jay N. Sayta

(Petitioner)

VERIFICATIONI, 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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