2 Jun 2013

Exclusive: Government fails to notify landmark Maharashtra Casino Act even 37 years after passage, as clamour for regulated gaming grows; court can compel govt to enforce the Act

Exclusive After I had written an exclusive story on how the Maharashtra legislative assembly passed the historic Maharashtra Casino (Control & Tax) Act, 1976 but failed to enforce and notify application of the Act till date, the clamour for regulated gambling has increased over the past few days with almost all media sources, experts, government officials etc. approving the consistent stand taken by this website in the last couple of years.

However, the question is why has no organisation, individual or the press taken up the issue and urged the government to forthwith notify this Act and frame Rules therein to give effect to the will of the legislature? Clearly organisations and experts who have been lobbying to get legislation passed have failed in their efforts to convince the government. However the inaction of the Maharashtra government has been exposed by the inordinate and unreasonable delay in taking any decision on the Act and judicial recourse may be available to compel the government to take a stand on the issue and pass the appropriate notifications.

A writ of mandamus can be filed in the Bombay High Court seeking directions to the state government to forthwith notify the Act or explain its appropriate stand on not notifying the Act. The Supreme Court and Delhi High Court have set an important precedent and allowed judicial action in cases of inordinate and unreasonable delay on part of the executive in issuing notifications. While in AK Roy v. Union of India AIR 1982 SC 710; a five-judge bench of the Supreme Court refused to allow a writ 0f mandamus to compel the Central government to notify provisions of the 44th Constitutional amendment Act and held that th power of issuing such notifications is the prerogative of the executive government.

However, a subsequent division-judge bench decision of the Supreme Court in Aeltemesh Rein v. Union of India AIR 1988 SC 1768 held in the context of pending notification under Section 30 of the Advocates Act, 1961 that there cannot be a blanket ban on issuing directions to the government to issue notifications when a statute has already been passed. Accordingly the judges ordered the government to consider whether the time is appropriate to issue a notification under the Act and asked the government to take a stand. The government however failed to notify Section 30 despite strictures in the decision and various recommendations of experts; only issuing the notification in 2011.

However, both these decisions have been differently interpreted by the Delhi High Court in Common Cause v. Union of India (Delhi Rent Control case 1999) where the court directed the central government to issue notification under the Delhi Rent Control Act within six weeks of the order. The court in the decision reasoned that both the AK Roy and Aeltemesh Rein cases did not put a blanket ban on such directions to issue notifications when there is unreasonable delay in taking such a decision.

Thus, the Maharashtra government will have to answer a lot of questions and take a stand on the Casino Act very soon- either before the courts of law or before the media. One only hopes that effect is given to the 37-year old Act to enforce the legislative will and constant recommendations of experts and jurists.

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