Bombay High Court: The petitioner, formerly known as Mumbai Gambling Management Pvt. Ltd., filed the present petition under Article 226 of the Constitution praying for a relief that the Maharashtra Casinos (Control and Tax) Act, 1976 (‘the 1976 Act’), which was never notified and brought into force, and which stood repealed by the Maharashtra Casinos (Control and Tax) (Repeal) Act, 2023 (‘the Repeal Act’), be directed to be brought into force, by declaring that the Repeal Act was ultra vires the Constitution. The Division Bench of G.S. Kulkarni* and Advait M. Sethna, JJ., opined that in the present case, the prayers were indirectly a relief that the Legislature be directed to re-legislate the 1976 Act. The Court held that a writ could not be issued to the Legislature to unbury or re-legislate, therefore, such revival of the 1976 Act and that too by a Writ of the Court, was an impossibility and a far-fetched expectation, of the petitioner, which the law could never recognize.
Background
The petitioner being engaged in hospitality business and running hotels and resorts, was desirous to open and operate casinos in the State of Maharashtra and thus, in relation to the same, the petitioner made a proposal to the State authorities including the Maharashtra Tourism Development Corporation.
Counsel for the petitioner submitted that an order dated 9-10-2015 was passed by this Court in Jay N. Sayta v. State of Maharashtra, Public Interest Litigation No. 19 of 2015, whereby the State Government was granted six months’ time to take an appropriate decision on whether it intended to bring the provisions of the 1976 Act into force. Thereafter, the State Government decided not to bring the 1976 Act into force and that the said 1976 Act be repealed and thus, the State Legislature passed the Repeal Act. The petitioner, being aggrieved by such action on the part of the respondents, filed the present petition.
Analysis, Law, and Decision
The Court stated that the relief was too far-fetched as it was within the domain of the Legislature to enact a particular law and repeal it. The Court further stated that about 49 years back, the State Legislature enacted the 1976 Act and the State as a matter of public policy never thought it appropriate to bring the said legislation into force.
The Court observed that none of the rights of the petitioner under the 1976 Act were affected for it to be aggrieved by the Repeal Act, because the 1976 Act was never brought into force. The Court opined that the 1976 Act was “still born” and thus, when the 1976 Act itself was a dead letter, no legal rights could accrue to the petitioner to maintain the present petition.
The Court rejected the contention that a legislation which was not brought into force could create any legal rights in favour of any person. The Court thus opined that there could not be any objection to the repeal of the 1976 Act, as both the actions of the State Legislature, namely, to frame a law and to repeal the law, was prerogative and the domain of the State Legislature within its powers under the Constitution.
The Court opined that in the present case, the prayers were indirectly a relief that the Legislature be directed to re-legislate the 1976 Act. The Court stated that it could never be the case that by setting aside of the Repeal Act, the petitioner would achieve revival/re-birth of the original legislation, because the consequence of the repeal of the 1976 Act had already taken effect, that is, it was no longer on the statute book, as it lays deeply buried.
The Court held that there could not be a writ to be issued to the Legislature to unbury or re-legislate, therefore, such revival of the 1976 Act and that too by a Writ of the Court, was an impossibility and a far-fetched expectation, of the petitioner, which the law could never recognize. The Court further held that the relief prayed for by the petitioner could not be granted as an act of the legislature could be declared ultra vires on three established parameters, (a) that the legislation was beyond the legislative competence; (b) that it was violative of the fundamental rights guaranteed under the Constitution or any other constitutional provisions; and (c) it was manifestly arbitrary.
The Court rejected the present petition as it was patently misconceived.
[Dyutbhumi Hotels & Resorts Pvt. Ltd. v. State of Maharashtra, Writ Petition No. 7921 of 2024, decided on 26-2-2024]
*Judgment authored by: Justice G.S. Kulkarni
Advocates who appeared in this case :
For the Petitioner: Anil Sakhare a/w Manish Kelkar;
For the Respondent: S.D. Vyas, Addl. G.P. a/w. Tejas Kapre, AGP.
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