MADRAS RACE CLUB Vs. STATE OF T.N

JUDGEMENT

(1.) THESE petitions assail the validity of abolition of wagering or betting on horse races in Tamil Nadu with effect from 31 -3 -1975 by the Madras City Police and Gaming (Amendment) Act, 1949, brought into force by the Tamil Nadu Horse Races (Abolition of Wagering or Betting) Act, 1974. The Madras Race Club and another interested in horse racing want this court to forbid the State of Tamil Nadu from enforcing the provisions of the Act and enable holding of horse races in Madras as well as in Ootacamund. Substantially their ground is that as under Entry 34 of List II of the VII Schedule to the Constitution which relates to the topic of betting and gambling, the power is confined to legislate on betting of a gambling character and as horse race is a game of skill, not a gamble, the two enactments together are in excess of the legislative power. Though the attack on the validity has also been based on Articles 14 and 19, in view of the prevailing proclamation of emergency, it has not been pursued at the hearing. Our attention was invited to the legislative history of betting on horse races in India which, however, is not of any assistance to the petitioners. One other contention, in our opinion too weak to uphold, is that the State Legislature in certain circumstances was estopped from enacting the 1974 Act.

(2.) THE Public Gambling (India) Act III of 1867 the operation of which was confined to the then Punjab and North Western Frontier Provinces, provided for punishment of public gambling and keeping of common gaming houses. The Act defined 'common gaming house', but not gaming except what was implicit in that definition itself and did not appear to cover betting on horse races. The Bengal Public Gambling Act, 1867, made public gambling and keeping of common gaming houses in the territories subject to the Lieutenant Governor of Bengal an offence. 'Gaming' was defined in this Act to include wagering or betting except wagering or betting on a horse race, when any of them took place on the day on which such race was to be run and in any enclosure which the stewards controlling such race, had, with the sanction of the Local Government, set apart for the purpose. But the expression 'gaming' did not include a lottery. The next legislation was the Bombay Prevention of Gambling Act, 1887, which also defined 'gaming' in the same way as the Act for Bengal expect that it added wagering or betting between a person on the one hand and the licensee of the race course on the other hand in such manner and by such contrivance as might be permitted by the licensee. In this Act too, 'lottery' was excluded from its purview. It is noteworthy that the title of each of these enactments used the word 'gambling', but sought to prevent betting and wagering, and the last two enactments clearly proceeded on the assumption that 'gaming' would include wagering or betting upon horse race and so provided for a limited exception. In 1912 it was felt necessary to regulate horse racing in the Bombay Presidency and accordingly the Bombay Race Courses Licensing Act of that year was enacted. It defined 'horse race' to mean any race in which any other horse, mare or gelding ran or was made to run in competition with any other horse, mare or gelding for any prize of what nature or kind soever, or for any bet or wager made or to be made in respect of any such horse, mare or gelding or the riders thereof and at which more than 20 persons should be present. Provisions were made for grant of licence for horse racing and cancellation thereof on certain grounds as well as for penalty for taking part in horse race on unlicensed race course. The Madras Gaming Act came in 1930 and was amended in 1933. The expressions 'common gaming house' and 'gaming' were defined 'Gaming' did not include lottery but included wagering or betting on horse races except when such wagering or betting took place on the date on which such race was to be run in a place or places within the race enclosure which the authority controlling such race had, with the sanction of the local Government, set apart for the purpose. Penalty was provided for opening, keeping or using any enclosure for gaming on horses. Penalty was also imposed for gaming in public places. The Madras City Police Act, 1888, defined 'common gaming house' but not 'gaming'. The Madras City Police (Amendment) Act, 1929, however, inserted in the main Act a definition of gaming similar to that in the Madras Gaming Act, 1930. This definition was substituted by another one, by the Madras City Police (Second Amendment) Act, 1941 which added that, for the purpose of the definition, wagering or betting should be deemed to comprise collection or soliciting of bets, receipt or distribution of winning or prizes, in money or otherwise, in respect of any wager or bet, or any act which was intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution. The Madras City Police and Gaming (Amendment) Act, 1949, however, redefined 'gaming' in the City Police Act as not including lottery but including wagering or betting. The deeming provisions which we just not referred to, was retained in the definition but the rest except wagering or betting on horse races with limitations, we mentioned above, was omitted. A new Section 49 -A was added to the City Police Act which prohibited publication relating horse races. The Amendment Act of 749 recast the definition of gaming in the Madras Gaming Act, 1930, and, as recast, the definition with the Explanation was similar to that in the City Police Act, as amended by that Act. Also, Section 11 -B was added to the Madras Gaming Act, which  corresponds to Section 49 -A inserted in the City Police Act. The Madras City Police and Gaming (Amendment) Act, 1949, however, provided that the substitution of the definition of gaming in the Madras City Police Act and in the Madras Gaming Act, 1930, which brought within its scope wagering or betting on horse races, should come into force on such date the Provincial Government might, by notification in the Fort St. George Gazette, appoint. No notification fixing such date as ever made, but it was postponed from time to time until the job was done by the impugned 1974 Act by bringing the definition into force with effect from 31 -3 -1975.

(3.) THAT leads us to the petitioners' contention that the impugned enactments are in excess of the powers of the State Legislature. It is said that horse race is game of skill, that it does not involve any element of gambling and that since the power of the Legislature under Entry 34 of the State List is only to enact on betting and gambling and not merely on betting simpliciter not involving any element of gambling, the Acts should be struck down as incompetent. In other words, the conjunctive 'and' in 'betting ad gambling' does not permit legislation on either betting or gambling, but only such legislation on betting involving or in the nature of gambling. We have, therefore, to examine first whether there is no element of gambling in betting on horse races, and second, if so, whether the limited interpretation sought to be placed on the ambit of Entry 34 of the State list is correct.