All Kashmir Fur Traders And ... vs State Of J&K And Ors
2021 Latest Caselaw 1480 j&K/2

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR


                                                    OWP No.754/2012 c/w
                                                    OWP No. 453/2006

                                                    Reserved on 09.11.2021
                                                    Pronounced on 22.11.2021

All Kashmir Fur Traders and Manufacturer                          ..... Petitioner (s)
Ghulam Ahmad Dar and ors

                                 Through :- Mr.M.A Qayoom, Advocate

                           V/s

State of J&K and ors                                             .....Respondent(s)
State of J&K and ors

                                 Through :- Mr. B.A.Dar Sr. AAG with
                                            Ms. Asifa Padroo, AAG

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1 These two writ petitions ( OWP No.754/2012 & OWP No. 453/2006)

are essentially by the Fur Traders; one filed by 19 Fur Traders together and,

second by the Association known by the name of All Kashmir Fur Traders and

Manufacturers Association, Residency Road, Srinagar. The petitioners seek

their rehabilitation in the wake of complete ban imposed on Fur trade in the

erstwhile State of Jammu and Kashmir due to enactment of J&K Wild Life

Protection Act, 1978 ['Act of 1978']. The claim of the petitioners for

rehabilitation is, inter alia, based on the recommendations of the Committee

dated 21.04.1998 constituted by the respondents vide Government Order

No.407-FST of 1997 dated 09.09.1997.

2 For better appreciation of the claim of the petitioners and to arrive

at a just decision of the controversy raised in these petitions, it is necessary to

take note of the factual antecedents, leading to filing of these petitions:

OWP Nos.754/2012 & OWP No.453/2006

The trade in wild life and its derivatives has been a big business worldwide and India has been traditionally an important source of wild life species relevant to the trade. The illegal trade has consumed a number of rare and endangered species threatening the country's rich heritage of biodiversity. In spite of stringent Regulations, illegal wild life trade has continued to flourish and has, thus, put various wild life species under serious threat of extinction. With the trade in wild life and its derivatives going on unabated worldwide, there has been considerable decline in the wild flora and fauna in every country. This manifestation has forced the world community to come together and chalk out strategies to protect this national heritage of wild flora and fauna in their respective countries. There have been several International Treaties and Conventions declaring ban on hunting of wild animals and trade in the wild animal derivatives. The Government of Indian conforming to the International Treaties and Conventions, also laid foundation for banning hunting of wild animals and trade in wild life derivatives by amending the Wild Life Protection Act, 1972 ['Act of 1972']. Although the Act of 1978 was passed by the State Legislature, by and large, on the modules and patterns similar to the Act of 1972, containing a provision for banning hunting of wild animals and birds and trade in fur items at the discretion of Chief Wild Life Warden of the State. Since the Act of 1978 could not be amended in tune with the Central Act for various reasons, the State remained a major center of demand for wild furs and in this way, many persons pursued the trade. This is how the Fur Industry in the Valley continued to flourish, though there was ban elsewhere in the Country.

In the year 1997 after the popular Government took over, the Chief Minister realizing the gravity of the issue ordered to get the inventory of fur stocks held by the furriers in the valley prepared and destroyed the same in the open to close the doors of the alleged clandestine business for ever and to upgrade the Act of 1978. It is in this background, the Government of J&K vide Government Order No. FST-407 of 1997 dated 09.09.1997 accorded sanction for constitution of a Committee. The said Committee, after threadbare discussion and having gone through the relevant data, vide its report dated 21.04.1998 made the following recommendations:

OWP Nos.754/2012 & OWP No.453/2006

(i) The Government is required to take immediate steps for acquiring and destroying the fur stocks held by the furriers in the valley as inventoried by the Committee and provide suitable alternative means of livelihood to furriers;

(ii) The Government is required to take immediate steps to upgrade the existing Jammu and Kashmir Wildlife Protection Act enabling the Department Wildlife Protection J&K State to function in conformity with the National and International Wildlife Conservation scenario; and,

(ii) The Government is required to strengthen the infrastructure of the Department of Wild Life Protection J&K State, in the interest of the conservation of varied and unique wild flora and fauna of this Himalayan State.

3 It is claimed that after the report was submitted by the Committee,

a proposal was submitted to the Cabinet in the year 1999 for according

sanction to the payment of Rs.9.45 crores out of the State Plan Funds for

payment of compensation to the registered furriers in terms of the evaluation

done by the Committee. The said proposal, however, did not mature. The

Cabinet desired that the proposal be further examined by the Finance Minister

and the Industries and Commerce Department before the Scheme for

rehabilitation of the workers of erstwhile Fur Units was formulated. It was also

suggested by the Department of Industries that rehabilitation package of

Rs.50,000/- each be provided to such fur/leather workers whose livelihood was

affected directly because of the restrictions imposed on carrying on the trade

of fur. The total tentative financial implication on this account was worked out

at Rs.2.20 crores which was in addition to the compensation amount of Rs.

9.45 crores to be paid to the fur traders whose stocks had been sealed and were

to be destroyed.

4 It appears that even the Central Government was also approached

for providing requisite funds to meet the expenses on account of compensation

OWP Nos.754/2012 & OWP No.453/2006

to be paid to those affected by the closure of fur trade in the State. The offer by

the Ministry of Environment and Forest to provide a sum of Rs.12.00 crores

from the development works to the State was accepted by the Government vide

Cabinet decision No.117/11 dated 30.06.2000. It is the case of the petitioners

that even after the Cabinet decision dated 30.06.2000 (supra), neither any

action was taken by the respondents, nor any effort was made to get the

promised Rs.12.00 crore from the Central Government and the rehabilitation of

the affected furriers remained a mirage. The Association even met the

Vice-Chairman, Planning Commission of India to release the requisite amount,

so that all those who were affected by the ban on the fur trade could be

rehabilitated. Even the Financial Commissioner and Secretary to Government,

Finance Department wrote a D.O letter to the Ministry of Environment and

Forests, New Delhi to show indulgence in the matter. For almost four years,

nothing happened. It was in the year 2005, the respondents vide Government

Order No.427-FST of 2005 dated 21.10.2005 constituted another Committee

for making payment transparently to the furriers/artisans whose stocks had

been seized in the wake of ban on fur trade in Jammu and Kashmir. The terms

of reference of the Committee were in the following manner:

(i) Proper identification of the person/persons concerned;

(ii) Payment by payee's Account cheque;

(iii) Information to the individual party for receiving payment;

(iv) Disposing off/burning the fur stocks (already inventoried, marked and sealed by the Department) lying with them (furriers) by following a proper/transparent procedure;

(v) At the time of payment proper documentation including photography, videography would be carried out; and,

(vi) Adequately publicizing the issue through electronic and print media.

OWP Nos.754/2012 & OWP No.453/2006

5 On the same day, the respondents vide Government Order

No. 428-FST of 2005 dated 21.10.2005 accorded sanction to the release of

Rs.581.21 lacs in favour of Chief Wild Life Warden for payment of

compensation to the furriers and artisans whose stocks had been seized in the

wake of ban on fur trade in Jammu and Kashmir State. This was followed by

grant of sanction to the withdrawal of an amount of Rs.581.21 lacs by debit to

Major Head '2406-Forestry and Wildlife compensation to furriers, by the

Financial Advisor and Chief Accounts Officer, Forest Department for

depositing the said amount under Major Head '8443-Civil Deposit. This was

done by the respondents vide Government Order No. 88-F of 2006 dated

15.03.2006.

6 The grievance of the petitioners in OWP No. 453/2006 as it was

when the writ petition was filed, is that despite there being proper sanction for

disbursement of Rs.581.21 lacs as compensation to the furriers, no follow up

action was taken by the respondents. The petitioners, thus, filed the aforesaid

writ petition seeking, inter alia, a direction to the respondents to disburse the

amount of Rs.581.21 lacs (50% of the total demand of Rs.11.62 crores) to the

petitioners and other beneficiaries whose stocks had been seized and sealed by

the respondents in the wake of ban imposed on fur trade and also to arrange the

release and disbursement of the remaining 50% of the demand in favour of the

petitioners. They also prayed for a direction to the respondents to take effective

steps for rehabilitation of all furriers including the petitioners and others by

providing them substantial aid and assistance, so as to enable them to start an

alternative trade or business.

7 The said writ petition was contested by the respondents. The

respondents in their objections did not deny the right of furriers to receive

OWP Nos.754/2012 & OWP No.453/2006

compensation for stocks that had been seized by the respondents in the wake of

ban on fur trade in the State. They, however, attributed delay in making the

payment to various disputes between furriers and the artisans. It was submitted

that there were claims and counter-claims over the actual number of artisans

involved in the trade. The matter was taken up with the Department of

Handicrafts and ultimately, sorted out in consultation with the Administrative

(Forest) Department. In short, the respondents in their reply affidavit reiterated

their commitment to make the payment to the furriers for their genuine stocks

which were inventoried in the year 1997. The issue with regard to

rehabilitation of the petitioners and other affected by the ban on fur trade was,

however, not dealt with in the reply affidavit.

8 It appears that during the pendency of OWP No. 453/2006,

various interim orders came to be passed by this Court from time to time. Vide

order dated 30.06.2006, this Court, by way of interim measure, directed as

under:

"Issue four weeks notice to other side and list thereafter. In the meanwhile and subject to objections, respondents may consider disbursement of aforesaid amount, if presently available with them, in accordance with recommendations stated to have been made under the Scheme, if still in tact, corresponding to taking over etc., of inventorised stocks, which shall remain in status quo, otherwise than as aforesaid. The Government may also initiate the process of working out a suitable rehabilitation Scheme for petitioners at the appropriate level, as envisaged under the aforesaid Scheme".

This was followed by another detailed order dated 18.05.2007

wherein this Court, while reiterating the earlier directions, directed as under:

"In the meanwhile a comprehensive rehabilitation plan in terms of previous Government decisions be also formulated

OWP Nos.754/2012 & OWP No.453/2006

for petitioners and other furriers, preferably in consultation with their representatives."

9 With a view to get the aforesaid interim directions passed by this

Court implemented, a contempt petition No.458/2009 also came to be filed by

the petitioners. This Court, while considering the writ petition as well as the

contempt petition, vide its order dated 13.09.2011, directed as under:

"In the said background, Principal Secretary to Government, Forest Department-respondent No.1 herein, shall file an affidavit within three weeks, detailing the timeframe within which the recommendations of the Committee shall be implemented and the steps taken during last 13 years towards implementation of the recommendations".

10 In response to the directions passed by this Court on 13.09.2011,

the respondents filed their reply affidavit and informed this Court that with a

view to examine the grievance of the furriers, the Government had constituted

a Committee headed by Divisional Commissioner to look into the matter the

submit its recommendations. It was also pleaded that the Committee so

constituted in the year 2008 vide Government Order No. 320-FST of 2008

dated 01.08.2008 could not carry out its mandate because of non-cooperation

on the part of the petitioners.

11 Having regard to the aforesaid stand of the respondents, this Court

vide order dated 15.02.2012 directed the petitioners to appear before the said

committee either in person or through duly constituted attorney on 22.02.2012

with all necessary documents/information that they propose to make use of to

reinforce their claim. It was further provided that the committee shall deliberate

upon the claims and make its recommendations latest by 22.03.2012. The State

Government, thereafter, shall act on the recommendations made and pass

consequential orders by 22.04.2012. It is in compliance to this order as also the

OWP Nos.754/2012 & OWP No.453/2006

orders passed by this Court from time to time, the Committee headed by the

Divisional Commissioner considered the matter. It was observed by the

Committee that the petitioners were all fur dealers and Rs.9,41,21,335/- had

already been deposited with the Registry of this Court for disbursement among

the beneficiaries as compensation for their raw material which had been taken

from their possession by the Wildlife Department. The Committee further

observed and felt that the since the petitioners were not the actual furriers and,

therefore, they were not required to be rehabilitated. It was found by the

Committee that the petitioners, who were essentially fur traders, were having

their own leather houses/shops and other business establishments and,

therefore, were adequately earning their livelihood. The Committee, however,

felt the need to rehabilitate the artisans, who as per the committee, were the

actual sufferers on account of ban on fur activities.

12 It is the recommendations aforesaid made by the Committee

headed by respondent No.2 which are impugned in second writ petition i.e.,

OWP No. 754/2012 by the Association. Apart from seeking writ of certiorari to

quash these recommendations of the Committee, the petitioners have also

prayed for a direction to implement the recommendations of the Committee

dated 21.04.1998 constituted vide Government Order dated 09.09.1997 (supra)

insofar as it relates to rehabilitation of members of the petitioners association

by providing them alternative means of livelihood.

13 The respondents have filed their reply affidavits. In the reply

affidavit filed by the then Regional Wildlife Warden, Kashmir, it is submitted

that the Committee constituted by the Government vide its order No.271 HD of

2008 dated 07.07.2008 for fixing criteria to arrive at an authentic list of artisans

who were associated with the fur trade during the year 1997, prepared the list

OWP Nos.754/2012 & OWP No.453/2006

of such artisans and recommended for payment of compensation out of the

amount deposited with the Registry of this Court in accordance with rules and

observing codal formalities. It was stated that the Directorate of Handicrafts

would be Nodal Agency for the purpose of fixing of criteria for making

recommendations of payment of compensation to the artisans (approximately

706 artisans) in number. There is another compliance report on record filed on

behalf of the respondents in which the stand taken by them is that pursuant to

order of this Court dated 15.06.2012, a meeting under the Chairmanship of the

then Advocate General was held on 24.06.13 in which it was unanimously

decided that the Committee shall be constituted for formulation of policy for

rehabilitation of furriers/artisans. Subsequently, a Committee was constituted

vide Government Order No. 197-Ind of 2013 dated 21.08.2013 for formulating

a policy to rehabilitate the artisans. The said Committee prepared a draft policy

and submitted the same to the Administrative Department. The

recommendations made by the Committee with regard to formulation of a draft

policy were accepted by the Government. The respondents have also placed on

record copy of the approved scheme/policy for rehabilitation of fur artisans. In

essence, and, in a nutshell, the stand of the respondents is that they have found

only the fur artisans entitled to rehabilitation, whereas no rehabilitation is

required to be provided to the petitioners and others, who were dealing in trade

of fur and are otherwise sufficiently rehabilitated on alternative businesses. It

may be noted that the policy framed by the Government for rehabilitation of

fur artisans, which is appended with the reply affidavit of the respondents as

Annexures R-2 and R-3 has not been challenged by the petitioners in these writ

petitions.

14 Heard learned counsel for the parties and perused the record.

OWP Nos.754/2012 & OWP No.453/2006

15 The principal contentions urged by Mr. Qayoom, learned counsel

for the petitioners are in the following manner:

(i) That in terms of recommendations of the Committee made on 21.04.1998 constituted vide Government Order dated 09.09.1997 (supra), an unequivocal promise was held out to the petitioners that they shall be rehabilitated and provided alternative means of livelihood and, therefore, the respondents could not have subsequently taken a u-turn and rehabilitated only the fur artisans and kept the members of the petitioners association (fur traders) outside the ambit of rehabilitation Scheme;

(ii) That the classification between the fur artisans and fur traders is not based on any intelligible differentia, nor does it have any nexus with the object sought to be achieved by providing rehabilitation to those affected by the complete ban on fur trade in the erstwhile State of Jammu and Kashmir; and,

(iii) That the ban imposed on the fur trade in the erstwhile State of J&K under the Act of 1978 had the effect of depriving the petitioners of their livelihood and, therefore, in the absence of proper package for their rehabilitation, it was clear violation of their fundamental right guaranteed by Article 21 of the Constitution of India.

16. Per contra, Mr. B.A.Dar, learned Sr. AAG, appearing for the

respondents, has rebutted the arguments of Mr. Qayoom, learned counsel

appearing for the petitioners, by contending as under:

(i) That the recommendations of the Committee constituted vide Government Order dated 09.09.1997 (supra) were not binding in nature and, therefore, the respondents were well within their right to examine the matter further and take a decision, which was just, fair and proper in the given facts and circumstances. He submits that the Committee headed by the Divisional Commissioner, Kashmir, which was constituted by the Government pursuant to the orders passed by this Court went at length in the issue and opined that only the fur artisans had suffered in terms of their means of livelihood due to ban on fur trade, whereas the fur traders had continued with their businesses as before without there being fur traded in their shops and business establishments;

OWP Nos.754/2012 & OWP No.453/2006

(ii) That the fur trade in the erstwhile State of Jammu and Kashmir was banned with a view to give effect to the statutory provisions of the Act of 1978 and, therefore, the persons in trade had no right to claim any compensation or rehabilitation, more so, when right to trade in the wild animals and their derivatives is not a fundamental right guaranteed under the Constitution of India; and,

(iii) That the classification between the fur artisans and the fur traders is not an artificial, but a genuine one. It has both intelligible differential and its nexus with the object sought to be achieved by the Scheme of rehabilitation. He, therefore, submits that the fur artisans, who were dependent for their livelihood exclusively on fur, were the persons who alone were deprived of their means of livelihood and, therefore, the Government in its wisdom and after conducting proper survey decided to rehabilitated them.

17 Having given thoughtful consideration to the rival contentions, I

am of the view that for more than one reason, the petitioners may not succeed

in these petitions. It is true that the Government, vide Government Order dated

09.09.1997 (supra), constituted a Committee headed by Chief Wildlife Warden

with a limited mandate to inventorise the fur stocks held by the furriers in the

valley. This was done in the wake of decision of the then Government of

Jammu and Kashmir to enforce complete ban on fur trade in the State under the

provisions of Act of 1978. The Committee, as it appears, went beyond its

mandate and made the recommendations which have already been reproduced

in para (2) of this judgment. In addition to recommending to the Government to

take immediate steps for acquiring and destroying the fur stocks held by the

furriers in the valley as inventoried by the Committee, the Committee also

recommended for providing suitable alternative means of livelihood to furriers.

18 I am in agreement with Mr. Qayoom, learned counsel for the

petitioners that the term "furrier" would mean not only the one that makes,

repairs, alters or cleans fur garments, but also the one who deals in fur. As per

OWP Nos.754/2012 & OWP No.453/2006

the Collins Dictionary, 'furrier' is defined as a person who makes or sells

clothes made from fur. As per the Oxford Advance Learner's Dictionary,

'furrier' means a person who prepares or sells clothes made from fur. It is,

therefore, not in dispute that the Committee's recommendations for

rehabilitation were meant for all those who were either making or preparing the

clothes from fur or selling them in the market. Aside, the fact remains that

these recommendations made by the Committee, which admittedly were

beyond its mandate, were not accepted by the Government. The Government

only proceeded on the proposal to acquire and destroy the fur stocks held by

the furriers in the valley as inventoried by the Committee constituted under the

Government order dated 09.09.1997 (supra) and pay such furriers an adequate

compensation i.e., the value of the seized fur. There is correspondence between

the then Government of J&K and the Ministry of Environment and Forest,

Government of India to arrange for the funds. There is no denying the fact that

the then Finance Minister of the State Mr. Muzaffar Hussain Beigh, during his

budget speech for the year 2005-06, made a reference to special allocation to

service compensation amount already worked out by the Government for the

stocks as well as the assistance promised to the workers to start some other

business. The Finance Minister also made a mention of the loss of business

suffered by the fur traders. However, no promise was held out to the fur traders

to be given any special rehabilitation package.

19 As noted in detail hereinabove, the matter remained under

consideration of the Government for long and ultimately, another Committee

was constituted vide Government Order dated 21.10.2005 (supra) for working

out the modalities for disbursement of compensation to the furriers (traders and

artisans) whose stocks had been seized in the wake of ban on fur trade in J&K

OWP Nos.754/2012 & OWP No.453/2006

State. In the first instance, a sum of Rs.581.21 lacs was released in favour of

the Chief Wildlife Warden for the purpose. While this process was going on,

some fur traders in their individual capacity filed OWP No. 453/2006 seeking,

inter alia, a direction for disbursement of sanctioned amount of Rs.581.21 lacs

in their favour and other beneficiaries whose stocks had been seized and sealed

by the respondents. They also sought a direction to the respondents to take

immediate and effective steps for rehabilitation of all the furriers including the

petitioners therein. During the pendency of the said petition, this Court passed

several interim orders. Orders dated 30.06.2006, 18.05.2007 and 13.09.2011

have already been noticed above. In compliance to the directions issued by this

Court, directing the respondents to work out on the rehabilitation of furriers,

the Government vide Government Order dated 01.08.2008 (supra) constituted a

Committee headed by the Divisional Commissioner, Kashmir to look into the

matter. The Committee deliberated upon the matter at length and submitted its

recommendations. In the opinion of the Committee, only the fur artisans were

the persons who were exclusively dependent on fur for making their livelihood

and, therefore, they deserved to be rehabilitated by payment of adequate

compensation. The Committee, however, dismissed the claim of the fur traders

for rehabilitation on the ground that that they were having their own leather

houses/shops and other business establishments and, therefore, were adequately

earning their livelihood. These recommendations, as noted above, were given

effect to by the Government, but before these recommendations could be given

effect to, the association of fur traders and manufacturers was before this Court

in OWP No. 754/2012 seeking quashment of recommendations of the

Committee headed by Divisional Commissioner, Kashmir and seeking

adequate rehabilitation package for them.

OWP Nos.754/2012 & OWP No.453/2006

20 At the cost of repetition, it may be noted that with a view to give

effect to the recommendations of the Committee headed by the Divisional

Commissioner, Kashmir, the Government vide its order No. 197-Ind. of 2013

dated 21.08.2013 constituted yet another Committee headed by Regional Wild

Life Warden to formulate a policy to provide rehabilitation to fur artisans. The

Committee ultimately, framed a scheme for rehabilitation of fur artisans and it

is in accordance with the aforesaid Scheme, the fur artisans have been

rehabilitated.

21 Interestingly, and for the reasons best known to the petitioners,

neither the Government Order dated 21.08.2013 (supra), nor the Scheme

framed by the Committee constituted by the aforesaid Government Order for

rehabilitation of fur artisans has been called into question. This Court could

have dismissed this petition simply on this count, but since the parties debated

the issues vehemently before me, therefore, I deem it appropriate to deal with

them as well.

22 As regards the first contention of Mr. Qayoom, learned counsel

appearing for the petitioners that there was a clear promise held out to the

petitioners in terms of the recommendations of the Committee constituted vide

Government Order dated 09.09.1997 (supra) and the Budget Speech of the

then Finance Minister made in the year 2005 and, therefore, the respondents

are bound to provide suitable rehabilitation package for rehabilitation of all

those who were in the trade of fur at the time of imposition of ban. It may be

pointed out and as is noticed above, the recommendations made by the

Committee for rehabilitation of furriers were beyond the mandate of the

Committee constituted by the Government vide Government order dated

09.09.1997) (supra). The Committee had been tasked to inventorize the fur

OWP Nos.754/2012 & OWP No.453/2006

stocks held by the furriers which were acquired and destroyed in the wake of

ban on fur trade in the State of Jammu and Kashmir. The Committee, however,

went on to suggest that all the furriers are also required to be provided suitable

alternative means of livelihood. This was a mere recommendations of the

Committee, that too, beyond its mandate and, therefore, was not accepted by

the Government. The Government though remained committed to compensate

the furriers for their fur stocks acquired and destroyed in the wake of ban, but

never agreed to the suggestion of the Committee to provide for suitable

alternative means of livelihood to the furriers. The Budget Speech of the then

Finance Minister made while presenting the Budget for the year 2005-06 does

make mention to the rehabilitation aspect of the furriers, but the promise held

out is only to the extent of helping the workers to start some other business. Be

that as it may, unless what is stated in the Budget Speech is translated into

action and a formal order binding the Government is issued, no rights can be

built on mere spoken words of the Finance Minister.

23 Without reiterating what transpired thereafter till the Court

intervened in OWP No. 453/2006, the dispute with regard to payment of

compensation for the stocks seized and destroyed came to be resolved with the

disbursement of amount, but the dispute with regard to rehabilitation became

subject of hard discussion in OWP No.453/2006. Several orders were passed

by this Court from time to time to call upon the respondents to consider their

rehabilitation and come up with a suitable package. In compliance to the

directions issued, a Committee was constituted headed by Divisional

Commissioner, Kashmir and on the recommendations made by the Committee,

the rehabilitation was provided only to the fur artisans and to the exclusion of

fur traders. The Committee in its report has given the reasons for such

OWP Nos.754/2012 & OWP No.453/2006

classification. The Committee, after making proper survey by going from door

to door came to the conclusion that because of ban on fur trade, the only class

that had suffered in terms of deprivation of their means of livelihood was the

class of fur artisans and not the fur traders. It was noted by the Committee that

fur traders already had alternative avocations and businesses and were well

established. The fur artisans who were engaged in preparing or selling the

clothes made from fur were dependent for their livelihood exclusively on the

fur and with the ban imposed by the Government, they were the persons who

were actually left with nothing to do.

24 From the above, it is absolutely clear that there is intelligible

differentia for classification which has a definite nexus with the object sought

to be achieved by rehabilitation. That apart, it may be pointed out that nobody

has a right to trade in fur or other wild life derivatives. Like the trade in

intoxicating drugs and liquor, the trade in wild animals and their derivatives

like fur is dangerous, subversive and pernicious as it has the potential to

deplete the species of wild animals and to ultimately extinguish them. It is well

settled that the trade which is pernicious can be totally banned without

attracting Article 19 (1) (g) of the Constitution of India. Apart from the

categories, I have mentioned above, there are other trades like gambling,

prostitution and dealing in counterfeit coins and currency notes which are

equally pernicious and, therefore, no citizen can claim fundamental right in

such trades by invoking Article 19 (1) (g) of the Constitution of India.

Activities having a baneful effect on the ecology, human and animal life etc.,

occupy a central position in the above category of trades. Article 48A inserted

in the Constitution of India by 42nd Amendment enjoins upon the State to

protect and improve the environment and to safeguard the forests and the wild

OWP Nos.754/2012 & OWP No.453/2006

life of the country. Therefore, what is destructive of the environment, forests

and wild life is contrary to the said directive principles of State policy. Apart

from the aforesaid directive principles of State policy, the Constitution of

India has Article 51A in the chapter of fundamental duties, Clause (g) whereof

requires every citizen of India to protect and improve the natural environment

including forests, lakes, rivers and wild life and to have compassion for living

creatures. It is, thus, a foregone conclusion that trading in animals close to

being wiped out of existence and articles made from their bones, skins or other

parts of their bodies, is a situation akin to dealing in any other noxious or

pernicious trade like intoxicating drugs. The Parliament is, therefore, well

within its powers to impose a ban by way of appropriate legislation on trading

in wild life and their derivatives in furtherance of Article 48A like it can

prohibit trade in intoxicating drugs and liquors in compliance with the mandate

of Article 47. The principle on the basis of which restriction can be imposed

on the trade in intoxicating drugs or intoxicating liquors will also apply with

equal force to trade in other pernicious and dangerous businesses like the

business of trading in fur or wild life derivatives.

25 In the case of State of Bombay and ors vs. F.N. Balsara, AIR

1951 SC 318, The Hon'ble Supreme Court held that absolute prohibition of

manufacture and sale of liquor is permissible as the concept of inheriting right

in a citizen to do the business in such articles is antithetical to the powers of

the State to enforce prohibition laws in respect of liquor, the only exception

being manufacture for the purposes of medicinal preparations. Similar

observations were made by the Supreme Court in the case of Har Shanker

and ors vs. Deputy Excise and Taxation Commissioner, AIR 1975 SC

1121, the Constitution Bench of the Supreme Court observed as follows:

OWP Nos.754/2012 & OWP No.453/2006

"............ There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export, import, sale and possession...................................................................

These unanimous decisions of five Constitution Benches uniformly emphasized after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to health and welfare of the public is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilized communities".

26 Indisputably, the business which the petitioners in these petitions

were pursuing at the time of enforcement of ban was attended with danger to

the community. Its evil effect was manifested by the depletion of the wild life

population of the State. The possession of fur in view of provisions of Act of

1978 is a crime and there can be no fundamental right to carry on business in

crime. As a matter of fact, the Government could have justifiably taken over

the stocks of fur without payment of any compensation and that would have

been perfectly constitutional. However, having regard to the fact that the

traders had invested in the fur stocks when it was not illegitimate or illegal to

do so and, therefore, they were required to be adequately compensated for the

loss that had occasioned to them due to abrupt enforcement of ban on fur trade

in State of Jammu and Kashmir.

27 Having regard to the nature of right a citizen has to trade in fur, as

I have discussed elaborately hereinabove, no right inheres in the petitioners to

claim rehabilitation as a matter of right. There is no question of the petitioners

having been deprived of their means of livelihood as earning of livelihood by

indulging in a dangerous and pernicious trade is not countenanced by any civil

OWP Nos.754/2012 & OWP No.453/2006

society anywhere in the world. The petitioners knew well that sooner than later

they have to stop this trade. That apart, this Court is of the firm opinion that it

cannot sit in appeal over the decision taken by the Committee of officers

headed by Divisional Commissioner, Kashmir, The reasons given by the

Committee to provide rehabilitation only to the artisans and not to the fur

traders are fair, just and proper and, therefore, do not fall foul of Article 14 of

the Constitution.

28 In view of the foregoing discussion and the analysis made, this

Court finds no merit in these petitions. The fall out and the consequence

thereof is dismissal of both these petitions. It is so ordered.

Interim directions passed vide different orders shall stand vacated.

(SANJEEV KUMAR) JUDGE Srinagar 22.11.2021 Sanjeev PS

Whether order is speaking: Yes Whether order is reportable: Yes