Kerala High Court
James Mathew vs State Of Kerala (Deleted) on 24 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:78926
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 24TH DAY OF OCTOBER 2025/2ND KARTHIKA, 1947
W.P(C).NO.27187 OF 2019
PETITIONER:
JAMES MATHEW
AGED 59 YEARS
S/O.LATE K.POULOSE, KALATHIL HOUSE, KALANJOOR P.O.
PATHANAMTHITTA DISTRICT - 689 694.
BY DR.ABRAHAM P.MEACHINKARA
BY ADV.SRI.GEORGE CLEETUS
BY ADV.SRI.M.V.LALU MATHEWS
BY ADV.SRI.P.A.SAINUDEEN
RESPONDENTS:
1 STATE OF KERALA (DELETED)
REPRESENTED BY CHIEF SECRETARY GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
[RESPONDENT NO.1 IS DELETED FROM THE ARRAY OF PARTIES
AS PER ORDER DATED 11/02/2020 IN W.P(C).NO.27187/2019]
2 PRINCIPAL SECRETARY,
(FORESTS AND WILDLIFE), SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
3 INSPECTOR GENERAL OF FOREST AND WILDLIFE,
MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE
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GOVERNMENT OF INDIA, INDIRA PARYAVARANA BHAWAN,
JOR BAGH ROAD, NEW DELHI 110 003.
4 THE PRINCIPAL CHIEF CONSERVTOR OF FOREST
(WILD LIFE) AND CHIEF WILD LIFE WARDEN, KERALA,
FOREST HEADQUARTERS, WILD LIFE OFFICE,
THIRUVANANTHAPURAM - 659 014.
5 DIVISIONAL FOREST OFFICER,
MALAYATOOR FOREST DIVISION, KODANADU POST,
ERNAKULAM - 683 544.
6 RANGE FOREST OFFICER,
KODANADU RANGE, KODANADU POST, ERNAKULAM - 683 544.
7 MOHANLAL.V.
AGED 58 YEARS
S/O.LATE VISWANATHAN NAIR, VISMAYAM VEDU, THEVARA
ERNAKULAM, NOW RESIDING AT "SREE GAENSH", RAJIV NAGAR,
ELAMAKKARA P.O., KOCHI - 682 026.
8 SHRI. P.N. KRISHNAKUMAR,
S/O.NANU EZHUTHACHAN NO.117 (KRISHNA), HILL GARDENS,
KUTTANELLUR HOUSING COMPLEX, OLLUR VILLAGE, THRISSUR
DISTRICT - 680 014.
9 SHRI.K. KRISHNAKUMAR (DELETED)
S/O.KRISHN MENON, NAYANAM NORTH F GATE, AMBUJALAYAM,
THRIPUNITHURA, MUTHUKULANGARA TEMPLE ROAD, ERUR, NADAMA
VILLAGE, KANAYANNUR TALUK, ERNKAULAM - 682 301.
[RESPONDENT NO.9 IS DELETED FROM THE ARRAY OF PARTIES AS
PER ORDER DATED 11/02/2020 IN I.A.NO.1/2019].
10 NALINI RADHAKRISHNAN, (DELETED)
W/O.PUZHANKARA KRISHNAN, RADHAKRISHNAN, PENISULA
APARTMENT, FLAT NO.6/D, TAILORS ROAD, PENISULA HIGH
ROAD 778, CHENNAI - 600 031.
[RESPONDENT NO.10 IS DELETED FROM THE ARRAY OF PARTIES
AS PER ORDER DATED 05/03/2020 IN W.P(C).NO.27187/2019].
11 SHRI.MARA PANDIYAM
IAS (RETIRED), MILLENIUM APARTMENTS, JAGATHY,
POOJAPPURA, THYCAUD POST, THIRUVANANTHAPURAM - 695 014.
12 G. HARIKUMAR,
IFS (RETIRED), "HARINI", T.C.36/582, ERA 81,
NEAR KARIMPALI TEMPLE, PALKULANGARA,
THIRUVANANTHAPURAM - 695 008.
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13 K J MARTIN LOWEL,
ASSISTANT CONSERVATOR OF FORESTS, DIVISIONAL FOREST
OFFICE, MUNNAR DIVISION, DEVIKULAM P.O.
IDUKKI DISTRICT - 685 613.
14 DIRCTOR OF INCOME TAX (INVESTIGATION)
DIRECTORATE OF INCOME TAX, MADAPARAMBIL BUILDING,
SOUTH RAILWAY STATION ROAD, KOCHI - 682 016.
BY SRI.GRACIOUS KURIAKOSE, ADDL. DIRECTOR GENERAL OF
PROSECUTION
BY ADV.SRI.S.SREEKUMAR (SR.)
BY ADV.SRI.K.R.RADHAKRISHNAN NAIR
BY ADV.SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
BY SRI.S.BIJU, SENIOR PANEL COUNSEL
BY ADV.SRI.BIJU BALAKRISHNAN
BY ADV.SRI.K.P.ABDUL AZEES
BY ADV.SMT.O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF
INDIA
BY SRI.NAGARAJ NARAYANAN, SPL. GOVT. PLEADER (FOREST)
BY ADV.SRI.AKHIL SURESH
BY ADV.SMT.V.S.RAKHEE
BY ADV.SRI.P.VIJAYAKUMAR
BY ADV.SMT.T.ARCHANA
BY ADV.SMT.SAYUJYA RADHAKRISHNAN
BY ADV.SRI.HARIKUMAR G. (GOPINATHAN NAIR)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.10.2025 ALONG WITH W.P(C).NO.11074 OF 2019, THE COURT ON
24.10.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 24TH DAY OF OCTOBER 2025/2ND KARTHIKA, 1947
W.P(C).NO.11074 OF 2019
PETITIONER:
PAULOSE.A.A,
AGED 47 YEARS
S/O.AUGUSTINE, ANTHIKADU HOUSE, ELOOR SOUTH,
UDYOGAMANDAL P.O,ERNAKULAM DISTRICT ,PIN 683501
BY DR.ABRAHAM P.MEACHINKARA
BY ADV.SRI.M.V.LALU MATHEWS
BY ADV.SRI.GEORGE CLEETUS
BY ADV.SRI.P.A.SAINUDEEN
RESPONDENTS:
1 MOHANLAL,
AGED ABOUT 58 YEARS,
S/O.LATE VISWANATHAN NAIR, VISMAYAM VEDU, THEVARA,
ERNAKULAM, NOW RESIDING AT "SREE GANESH", RAJIV NAGAR,
ELAMAKKARA P.O, KOCHI - 682 026
2 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001
3 THE PRINCIPAL CHIEF CONSERVATOR OF FOREST
(WILD LIFE) AND CHIEF WILD LIFE WARDEN,
KERALA, FOREST HEADQUARTERES, WILD LIFE OFFICE,
THIRUVANANTHAPURAM, PIN - 695 014.
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BY SRI.GRACIOUS KURIAKOSE, ADDL. DIRECTOR GENERAL OF
PROSECUTION
BY ADV.SRI.S.SREEKUMAR (SR.)
BY ADV.SRI.K.R.RADHAKRISHNAN NAIR
BY ADV.SRI.P.K.RAVISANKAR
BY ADV.SRI.BABU S. NAIR
BY SRI.NAGARAJ NARAYANAN, SPL. GOVT. PLEADER (FOREST)
BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.10.2025 ALONG WITH W.P(C).NO.27187 OF 2019, THE COURT ON
24.10.2025 DELIVERED THE FOLLOWING:
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"C.R."
JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
The above two writ petitions, being in the nature of public interest
litigations, were initially posted before the bench of the Hon'ble the Chief
Justice, who by his order on the administrative side thought it apposite to
post these matters before this bench. It is thus that these matters were
taken up by us for consideration and disposal on merits.
Brief Facts:
2. The petitioners before us are essentially aggrieved by the action
of the respondent State Government in issuing notifications in terms of
Section 40(4) of the Wild Life Protection Act, 1972 [hereinafter referred
to as the "1972 Act"] that permitted a celebrated film actor from the
State to declare two pairs of Ivory Tusks and 13 Ivory artifacts before the
Chief Wild Life Warden of the State, and the subsequent action of the
State Government in issuing ownership certificates to the said person in
respect of the same Ivory items in terms of Section 42 of the 1972 Act. It
would appear that criminal proceedings had already been initiated
against the respondent actor, at the instance of certain complainants, and
those proceedings were pending before the Judicial First Class
Magistrate Court, Perumbavoor, when the State Government exercised
its power under Section 40(4) of the 1972 Act in favour of the respondent
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actor. Although in these writ petitions, there is a prayer seeking a
direction to the official respondents of the State to expedite the said
criminal proceedings, we find that those proceedings are well underway
and there are presently a Criminal Revision Petition and Criminal
Miscellaneous Cases, that arose therefrom, that are pending
consideration before this Court. We do not, therefore, propose to
consider the said prayer in these proceedings and the said prayer is
accordingly rejected.
3. The challenge to the permission granted under Section 40(4),
and to the ownership certificate granted in terms of Section 42 of the
1972 Act, is premised on two contentions, namely (a) that the power
under Section 40(4) of the 1972 Act was not exercised in the manner
prescribed under the Statute since the notifications in question were not
published in the official gazette; and (b) that even if the notification
granting permission to declare the items was valid, there was no proper
enquiry as to whether the possession of the Ivory articles by the
respondent actor was lawful in terms of the 1972 Act. It was in respect
of the above two issues that we heard the arguments of the learned
counsel on either side.
The submissions made before us:
4. The submissions of Dr. Abraham P. Meachinkara, the learned
counsel appearing on behalf of the petitioners in both the writ petitions,
briefly stated, are as follows:
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● The notifications issued by the State Government that permitted
the respondent actor to submit declarations as mandated under Section
40(1) of the 1972 Act in respect of the Ivory tusks and artifacts in his
possession were not published in the official gazette as mandated under
Section 40(4) of the 1972 Act. Therefore, the notifications cannot be
seen as resulting from a valid exercise of the State Government's power
under the statutory provision and are hence illegal and unenforceable in
law. Consequently, the respondent actor could not have obtained any
benefit such as immunity from prosecution or an entitlement to
ownership certificates in respect of the Ivory tusks and artifacts in his
possession. Reliance is placed on the judgments in Rajendra
Agricultural University v. Ashok Kumar Prasad and Others -
[(2010) 1 SCC 730]; Sammbhu Nath Jha v. Kedar Prasad Sinha and
Others - [(1972) 1 SCC 573]; Poonam Verma and Others v. Delhi
Development Authority - [(2007) 13 SCC 154]; I.T.C Bhadrachalam
Paperboards and Another v. Mandal Revenue Officer, A.P. and
Others - [(1996) 6 SCC 634].
● Alternatively, even if the notifications in question are seen as valid
and enforceable, the authorities under the 1972 Act could not have
issued a valid ownership certificate in respect of the Ivory tusks and
artifacts to the respondent actor, because the enquiry contemplated
under Sections 41 and 42 of the 1972 Act read with Rules 35 to 37 of the
Kerala Wild Life (Protection) Rules, 1978 would have rendered it
impossible to grant the said ownership certificates to the respondent
actor who could not have demonstrated that his possession of the Ivory
tusks and artifacts was lawful in nature. This was more so because
criminal cases had already been registered against the respondent actor
for the unlawful possession of the said artifacts. Reliance is placed on
the judgments in Pyarelal v. The State (Delhi Administration) - [AIR
1995 SC 1159]; Wildlife Warden v. Komarrikkal Elias - [(2018) 8
SCC 114]; Principal Chief Conservator of Forests,
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Thiruvananthapuram and Another v. Secretary, Paramekkavu
Devaswom - [2015 (3) KHC 351 (DB)]; Indian Handicrafts
Emporium and Others v. Union of India and Others - [(2003) 7
SCC 589]; Vishalakshi Amma v. State of Kerala and Others - [2023
(4) SCALE 442].
5. Per Contra, the submissions of the learned Additional Director
General of Prosecution Sri.Grashious Kuriakose appearing for the State,
and the learned Senior Counsel Sri.S.Sreekumar, assisted by Adv.Sri.K.R.
Radhakrishnan Nair appearing for the respondent actor, briefly stated,
are as follows:
● That merely because the notifications issued in terms of Section
40(4) of the 1972 Act were not notified in the official gazette, the said
notifications would not be illegal or unenforceable. This was more so
because the notifications were given due publicity by circulating it among
all those mentioned in the notification itself as also to the press. That
apart, since there was no scope for anyone to object to the declaration
being made by an individual person, the absence of publication in the
gazette could not be seen as causing prejudice to any person or to the
general public. For the same reason, the locus standi of the petitioners
to maintain public interest litigations is also questionable. Reliance is
placed on the judgments in Bangalore Woollen, Cotton and Silk Mills
Co. Ltd v. Corporation of the City of Bangalore - [AIR 1962 SC
562]; Municipal Board, Sitapur v. Prayag Narain Saigal and Firm
Moosaram Bhagwandas - [(1969) 1 SCC 399]; B. K. Srinivasan and
Another v. State of Karnataka and Others - [(1987) 1 SCC 658];
Collector of Central Excise v. New Tobacco Co. - [(1998) 8 SCC
250].
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● In the alternative, it is submitted that the term "official gazette" is
not defined under the 1972 Act and hence going by the definition of the
phrase under the General Clauses Act, 1897 that defines "official
gazette" as meaning the Gazette of India or the Official Gazette of a
State, the notifications in the instant cases have to be seen as published
in a gazette of the State of Kerala. It is pointed out that a "gazette" is
defined to mean an official newspaper in which acts of State,
appointments, notices of bankruptcy and other legal matters are reported
and hence the notifications in the present case, which were published in
the website of the State Government must be seen as satisfying the
requirement of publication in the official gazette. It is further pointed out
that by a Government order dated 18.06.2021 in the State Higher
Education Department, the State Government has notified its proposal to
effect future gazette publications through the e-gazette portal of the
State and therefore the publication of the notification through electronic
media should be seen as satisfying the requirements of the 1972 Act.
Discussions and Findings:
6. Before we proceed to analyse the arguments of the learned
counsel referred to above, we might notice the statutory provisions
against the backdrop of which that analysis has to be undertaken.
Sections 39, 40, 40A, 41 and 42 of the 1972 Act read as follows:
Section 39:
39. Wild animals, etc., to be Government property.-- (1)
Every--
(a) wild animal, other than vermin, which is hunted under
section 11 or sub-section (1) of section 29 or sub-section (6) of section 35
or kept or bred in captivity or hunted in contravention of any provision of
this Act or any rule or order made thereunder or found dead, or killed by
mistake; and
(b) animal article, trophy or uncured trophy or meat derived
from any wild animal referred to in clause (a) in respect of which any
offence against this Act or any rule or order made thereunder has been
committed,
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(c) ivory imported into India and an article made from such
ivory in respect of which any offence against this Act or any rule or order
made thereunder has been committed;
(d) vehicle, vessel, weapon, trap or tool that has been used for
committing an offence and has been seized under the provisions of this
Act,
shall be the property of the State Government, and, where such animal is
hunted in a sanctuary or National Park declared by the Central
Government, such animal or any animal article, trophy, uncured trophy or
meat derived from such animal or any vehicle, vessel, weapon, trap or tool
used in such hunting shall be the property of the Central Government.
(2) Any person who obtains, by any means, the possession of
Government property, shall, within forty-eight hours from obtaining such
possession, make a report as to the obtaining of such possession to the
nearest police station or the authorised officer and shall, if so required,
hand over such property to the officer-in-charge of such police station or
such authorised officer, as the case may be.
(3) No person shall, without the previous permission in writing
of the Chief Wild Life Warden or the authorised officer--
(a) acquire or keep in his possession, custody or control, or
(b) transfer to any person, whether by way of gift, sale or
otherwise, or
(c) destroy or damage, such Government property.
Section 40:
40. Declarations.-- (1) Every person having at the
commencement of this Act the control, custody or possession of any
captive animal specified in Schedule I or Part II of Schedule II, or animal
article, trophy or uncured trophy derived from such animal or salted or
dried skins of such animal or the musk of a musk deer or the horn of a
rhinoceros, shall, within thirty days from the commencement of this Act,
declare to the Chief Wild Life Warden or the authorised officer the number
and description of the animal, or article of the foregoing description under
his control, custody or possession and the place where such animal or
article is kept.
(2) No person shall, after the commencement of this Act,
acquire, receive, keep in his control, custody or possession, sell, offer for
sale or otherwise transfer or transport any animal specified in Schedule I
or Part II of Schedule II or any uncured trophy or meat derived from such
animal, or the salted or dried skins of such animal or the musk of a musk
deer or the horn of a rhinoceros, except with the previous permission in
writing of the Chief Wild Life Warden or the authorised officer.
(2A) No person other than a person having a certificate of
ownership, shall, after the commencement of the Wild Life (Protection)
Amendment Act, 2002 acquire, receive, keep in his control, custody or
possession any captive animal, animal article, trophy or uncured trophy
specified in Schedule I or Part II of Schedule II, except by way of
inheritance.
(2B) Every person inheriting any captive animal, animal article,
trophy or uncured trophy under sub-section (2A) shall, within ninety days
of such inheritance make a declaration to the Chief Wild Life Warden or
the authorised officer and the provisions of sections 41 and 42 shall apply
as if the declaration had been made under sub-section (1) of section 40:
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Provided that nothing in sub-sections (2A) and (2B) shall apply to
the live elephant.
(3) Nothing in sub-section (1) or sub-section (2) shall apply to a
recognised zoo subject to the provisions of section 38-I or to a public
museum.
(4) The State Government may, by notification, require any
person to declare to the Chief Wild Life Warden or the authorised officer
any animal or animal article or trophy (other than a musk of a musk deer
or horn of a rhinoceros) or salted or dried skins derived from an animal
specified in Schedule I or Part II of Schedule II in his control, custody or
possession in such form, in such manner, and within such time, as may be
prescribed.
Section 40A:
40A. Immunity in certain cases.-- (1) Notwithstanding
anything contained in sub-sections (2) and (4) of section 40 of this Act, the
Central Government may, by notification, require any person to declare to
the Chief Wild Life Warden or the authorised officer, any captive animal,
animal article, trophy or uncured trophy derived from animals specified in
Schedule I or Part II of Schedule II in his control, custody or possession, in
respect of which no declaration had been made under sub-section (1) or
sub-section (4) of section 40, in such form, in such manner and within such
time as may be prescribed.
(2) Any action taken or purported to be taken for violation of
section 40 of this Act at any time before the commencement of the Wild
Life (Protection) Amendment Act, 2002 shall not be proceeded with and all
pending proceedings shall stand abated.
(3) Any captive animal, animal article, trophy or uncured
trophy declared under sub-section (1), shall be dealt with in such manner
and subject to such conditions as may be prescribed.
Section 41:
41. Inquiry and preparation of inventories.-- (1) On
receipt of a declaration made under section 40, the Chief Wild Life Warden
or the authorised officer may, after such notice, in such manner and at
such time, as may be prescribed,--
(a) enter upon the premises of a person referred to in
section 40;
(b) make inquiries and prepare inventories of animal articles,
trophies, uncured trophies, salted and dried skins and captive animals
specified in Schedule I and Part II of Schedule II and found thereon; and
(c) affix upon the animals, animal articles, trophies or uncured
trophies identification marks in such manner as may be prescribed.
(2) No person shall obliterate or counterfeit any identification
mark referred to in this Chapter.
Section 42:
42. Certificate of ownership.-- The Chief Wild Life Warden
may, for the purposes of section 40, issue a certificate of ownership in such
form, as may be prescribed to any person who, in his opinion, is in lawful
possession of any wild animal or any animal article, trophy, uncured trophy
and may, where possible, mark, in the prescribed manner, such animal
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article, trophy or uncured trophy for purposes of identification:
Provided that before issuing the certificate of ownership in respect
of any captive animal, the Chief Wild Life Warden shall ensure that the
applicant has adequate facilities for housing, maintenance and upkeep of
the animal.
Rules 35 to 37 of the Kerala Wild Life (Protection) Rules, 1978 that were
promulgated by the State Government in exercise of its rule making
powers under Section 64 of the 1972 Act, read as follows:
Rule 35:
35. Declarations.- Notwithstanding any declaration that a
person may have made under subsection (1) of section 40, any person who
has in his control, custody or possession, any animal, animal article or
trophy (other than the musk of a musk deer or the horn of a rhinoceros or
salted or dried skins derived from an animal specified in Schedule I or Part
II of Schedule II to the Act shall, make a declaration on or before 30 th day
of September 1991 in Form No.13 to the Chief Wild Life Warden or an
Officer authorised by him in this behalf (hereinafter referred to as the
authorised officer.
Rule 36:
36. Enquiry and preparation of inventories.- (1) On
receipt of declaration under rule 35 or under subsection (1) of section 40,
the Chief Wild Life Warden or the authorised officer shall give a notice
within a period of 30 days in Form No.14 and such notice shall be served
on the person making the declaration or sent to him by Registered Post.
(2) The Chief Wild Life Warden or the authorised officer shall make an
inventory in Form No.15 of such animals or objects found upon the
premises.
(3) The Chief Wild Life Warden or the authorised officer shall affix
upon the objects referred to in sub-rule (2), identification marks in indelible
ink or paint.
Rule 37:
37. Certificate of Ownership.- The Chief Wild Life Warden
may, for the purposes of section 40, issue a certificate of ownership in Form
No. 16 to a person who, in his opinion is in lawful possession of any animal,
animal article, trophy or uncured trophy.
7. The Declaration of Wild Life Stock Rules, 2003 was
promulgated by the Central Government in exercise of its powers under
Section 40A(1) and (3) read with Section 63 of the 1972 Act. Since in
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these proceedings, we are not dealing with the legality of the exercise of
power by the Central Government under Section 40A of the 1972 Act, we
do not deem it apposite to extract the provisions of the 2003 Rules. The
reference to the 2003 Rules is made merely to indicate the similarity in
the nature of proceedings envisaged under the Act to regularise an
irregularity noticed in any person's possession of an animal article or
trophy.
8. What is apparent from a reading of the statutory provisions
extracted above is that the wildlife protection laws in our country
mandate that there shall be no trade or commerce of wild animals,
animal articles or trophies. Such animals, animal articles and trophies
are to be seen as the property of the State Governments concerned with
effect from the date of commencement of the 1972 Act and no person
shall, without the previous permission in writing of the Chief Wild Life
Warden or the authorised officer, either acquire or keep in his possession,
custody or control, or transfer to any person, whether by way of gift, sale
or otherwise, or destroy or damage such government property. Section
40 of the 1972 Act obliges a person having control, custody or possession
of such government property at the commencement of the Act to declare
the same within the prescribed time limit of 30 days from the
commencement of the Act. If no such declaration is made by such
persons, their continued control, custody or possession of the animal,
animal article or trophy has to be seen as unlawful. In the State of
Kerala, since the Kerala Wild Life (Protection) Rules were promulgated
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only in 1976, and it was through the said Rules that the procedure for
making the declarations in terms of Section 40 of the 1972 Act was
prescribed, the period for making such declarations stood extended up to
30.09.1991 through Rule 35 of the 1976 Rules. It is not in dispute in
these proceedings that the respondent actor did not make any
declaration in respect of the artifacts in his possession within the time
permitted under the 1972 Act or the 1976 Rules.
9. Sub-sections (2), (2A) and (2B) of Section 40 of the 1972 Act
deal with the prohibition against acquisition, receipt, keeping in control,
custody or possession and commercial alienation or transportation of
animals, animal articles and trophies by any person, except by way of
inheritance, after the commencement of the 1972 Act. Sub-section (4) of
Section 40 is a provision designed to empower a State Government to
grant immunity in certain cases, akin to the power granted to the Central
Government under Section 40A of the 1972 Act. Accordingly, if the State
Government intends to grant an immunity from proceedings under the
Act, to any person or class of persons who have not made a declaration in
terms of the 1972 Act, it can require such person(s) to make the
declaration by issuing a 'notification' containing that requisition. The
term 'notification' is defined in Section 2(22) of the 1972 Act as meaning
a notification published in the Official Gazette. Thus, the statutory
scheme mandates that if the State Government intends to permit
persons, who have not made any declaration within the period mandated
under the 1972 Act or the 1976 Rules, to make such a declaration at a
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subsequent stage, then it must publish a notification in the official
gazette calling upon such person(s) to make such declaration in such
manner and within such time as prescribed in the notification. On such
persons making the necessary declaration, to the satisfaction of the State
Government, and on the State Government accepting the said
declaration, the continued control, custody or possession of the animal,
animal article or trophy by the declarant becomes lawful for the purposes
of the 1972 Act and 1976 Rules. It would then be open to the State
Government to grant an ownership certificate in respect of the animal,
animal article or trophy to the declarant in terms of Section 42 of the
1972 Act.
10. In these proceedings, while it appears that notifications were
issued by the State Government requiring the respondent actor to
declare the Ivory tusks and artifacts before it within a stipulated time
period, and the respondent actor had complied with the terms of those
notifications and obtained ownership certificates in respect of the Ivory
tusks and artifacts, the issue that arises is whether the notifications
issued by the State Government satisfied the requirements of the 1972
Act ? It is significant in this regard to notice that the State admits that
the notifications in question were not published in the official gazette.
Their justification, however, is that since adequate publicity was given to
the notifications, there was no prejudice caused to any person and hence
the non-publication of the notification in the official gazette can only be
viewed as a technical irregularity with no legal consequence.
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11. We are afraid, we cannot accept the said contention of the
State Government. The provisions of Section 40(4) of the 1972 Act are
special provisions that empower a State Government to confer immunity
on person(s) who are otherwise to be seen as having breached the
provisions of the Act and thereby in unlawful control, custody or
possession of an animal, animal article or trophy. The power granted to
the State Government under the 1972 Act has therefore to be exercised
strictly in the manner prescribed under the Act, and cautiously, keeping
in mind the objectives of the Act. If a statutory power is not exercised in
the manner prescribed under the Act, then that power cannot be seen as
having been exercised at all [Nazir Ahmad v. The King-Emperor -
[AIR 1936 PC 253(2)]]. That apart, as noticed by the Supreme Court in
B.K.Srinivasan v. State of Karnataka - [(1987) 1 SCC 658], when a
Statute requires Rules to be published in the official gazette, such
publication is a mandatory condition for the Rules to become operational.
Highlighting the rationale for such action it was observed that 'unlike
parliamentary legislation which is publicly made, delegated or
subordinate legislation is often made unobtrusively in the chambers of a
Minister, a Secretary to the Government or other official dignitary. It is,
therefore, necessary that subordinate legislation, in order to take effect,
must be published or promulgated in some suitable manner, whether
such publication or promulgation is prescribed by the parent statute or
not....... [W]here the parent statute prescribes the mode of publication or
promulgation that mode must be followed.' In the same vein, in I.T.C.
W.P.(C).Nos.27187
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Bhadrachalam Paperboards v. Mandal Revenue Officer, A.P. and
Others - [(1996) 6 SCC 634] where the issue that arose for
consideration was whether the government order which did not comply
with the mandatory requirement of publication in the gazette could be
relied upon by a person who acted upon it, to invoke the principle of
promissory estoppel against the Government and claim the benefit under
the government order on the ground that it contained a representation
held out by the Government to the members of the public, it was
observed that the statutory requirement relating to publication of the
government order in the gazette was mandatory, and that where an
enactment requires an act (making a government order) to be done by
the Government only in the manner prescribed therein, then non-
compliance with the mandatory statutory requirement will make the act
(making of a government order) invalid and consequently, the
government order cannot be considered a valid and binding one, nor as a
representation held out by the Government, creating any right to seek
the benefit of that government order by invoking the principle of
promissory estoppel against the Government.
12. We have chosen to rely on the judgment in I.T.C.
Bhadrachalam (supra) solely to repel the argument of the State
Government that the lapse on its part, in not publishing the notifications
in the official gazette, was a mere technical irregularity with no legal
consequence. The judgments relied upon by the State Government, as
noticed above, are clearly distinguishable on facts. The said judgments
W.P.(C).Nos.27187
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were rendered in particular contexts where it was found, as a matter of
fact, that there was no prejudice caused to the general public on account
of the non-publication in the gazette. The aspect of improper exercise of
power and consequent legal invalidity of the notifications was not gone
into in the said judgments. We are also not impressed with the
contention raised on behalf of the respondent actor that the publication
of the notifications in the electronic media would tantamount to sufficient
compliance with the requirements of the 1972 Act. In our view, when the
statutory provisions clearly state that the publication of the notification
must be in the official gazette, the publication has to be in the official
gazette of the State either in print format or in the electronic format. In
the light of the clear provisions of the Statute, we cannot venture to
provide any alternate meaning to the term "gazette" as contended by the
respondents. The effect of not exercising a statutory power (of issuing a
notification) strictly in the manner prescribed under the statute is that
the notifications in question will have to be seen as 'stillborn' and
unenforceable. For the same reason, a publication of the notifications in
the official gazette at this belated stage will not have the effect of
legitimising the actions taken by the respondent actor or the State
Government, pursuant to the said notifications since the de facto doctrine
cannot be invoked in respect of notifications that are declared as illegal
and unenforceable from the very inception.
13. As regards the objections regarding locus standi of the
petitioners to maintain these public interest litigations, we might only
W.P.(C).Nos.27187
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refer to the observations of the Supreme Court in Noida Toll Bridge Co.
Ltd. v. Federation of NOIDA Residents Welfare Association & Ors. -
[(2025) 6 SCC 717] where the Court observed that the rules of standing
are essentially designed to weed out frivolous litigation from courts and
to ensure that there is no abuse of the process of the court. While public
interest litigations serve as effective tools for addressing the grievances
of the public, it must be carefully scrutinised to prevent misuse or abuse
by those with ulterior motives. The courts must look beyond the surface
to assess whether the litigation has been genuinely initiated in the
interest of the public or as a result of mischief. This is because the
essence of PIL lies in its aim to remedy genuine public wrongs or injuries
rather than being driven by personal vendetta or malice. On the facts of
the instant cases, we find that the petitioners were essentially aggrieved
by the legal mala fides occasioned by the State in exercising a power that
they have in favour of the respondent actor without following the
mandatory procedure that was a pre-requisite for the exercise of the
power. Under such circumstances, the object of the writ petitions was
essentially to remedy a genuine public wrong or injury and we do not see
the writ petitions as being driven by personal vendetta or malice.
14. We therefore conclude by holding that the Government orders
dated 16.12.2015 and 17.02.2016 are void ab initio and legally
unenforceable. However, while striking down the said Government
orders, as also the ownership certificates dated 16.01.2016 and
06.04.2016 issued to the respondent actor pursuant thereto, as illegal
W.P.(C).Nos.27187
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and unenforceable, we refrain from dealing with the arguments advanced
on behalf of the writ petitioners as regards the manner in which the
power to issue the ownership certificates in question were exercised. We
feel that any finding on the said issues might prejudice the respondent
actor in the criminal proceedings that are pending against him. We
would only observe that the State Government is at liberty to issue a
fresh notification, in terms of Section 40(4) of the 1972 Act, for
conferring the immunity envisaged under the said provision, to persons
or class of persons envisaged under the statutory provision.
The Writ petitions are allowed as above. No Costs.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
prp/
W.P.(C).Nos.27187
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APPENDIX OF W.P(C).NO.27187/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED
10.8.2017 BEFORE THE 2ND AND 4TH RESPONDENTS.
EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 1.8.2018
PREFERRED BY THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE STATUS FROM THE PUBLIC
GRIEVANCE REDRESSAL PORTAL OF THE MINISTRY OF
ENVIRONMENT AND FOREST DATED 06.09.2018.
EXHIBIT P4 TRUE COPY OF LETTER NO.F.NO.8-39/2017-WL FROM
THE GOVERNMENT DATED 10.9.2018.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 16.2.2019
ISSUED BY THE STATE PUBLIC INFORMATION
OFFICER AND DEPUTY CONSERVATOR OF FORESTS.
EXHIBIT P6 TRUE COPY OF THE LETTER INCLUDING THE
LIST/INVENTORY OF OTHER ASSETS FOUND AT THE
RESIDENCE OF 7TH RESPONDENT VIDE
COMMUNICATION NO.132/CHN-11/TVM/2011-12 DATED
23.08.2011 SUBMITTED TO THE DIVISION FOREST
OFFICER, FLYING SQUAD DIVISION,
PALLARIVATTOM, ERNAKULAM.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION BY THE INCOME
TAD DEAPARTMENT BEARING NO.F.NO.DI(INV)/
132.VM/2011-12 DATED 29.7.2011 TO THE CHEF
CONSERVATOR OF FOREST (WILDLIFE0 GOVERNMENT
OF KERALA, VAZHUTHAKAD, THIRUVANANTHAPURAM.
EXHIBIT P8 TRUE COPY OF THE CHARGE SHEET DATED
2.12.2015.
EXHIBIT P9 TRUE COPY OF THE ORDER NO. GO (RT) NO.
538/2015/FOREST AND WLD DATED 16.12.2015.
EXHIBIT P10 TRUE COPY OF DECLARATION DATED 30.12.2015
MADE BY THE 7TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF INVENTORY MADE BY ASSISTANT
CONSERVATOR, SOCIAL FORESTRY, ERNAKULAM DATED
7.1.2016.
EXHIBIT P12 TRUE COPY OF THE CERTIFICATE OF OWNERSHIP
DATED 16.1.2016.
EXHIBIT P13 TRUE COPY OF THE ORDER IN CRL MC 3318/2012
DATED 29.2.2016.
EXHIBIT P14 TRUE COPY OF THE ORDER NO. GO (RT) NO.
74/2016/F & WLD DATED 17.2.2016.
EXHIBIT P15 TRUE COPY OF THE DECLARATION DATED 24.2.2016
MADE BY 7TH RESPONDENT ON THE BASIS OF
EXHIBIT P14.
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EXHIBIT P16 TRUE COPY OF THE INVENTORY REPORT PERTAINING
TO 13 ITEMS OF WILDLIFE ARTICLES MADE OF
IVORY IN THE POSSESSION OF THE 7TH RESPONDENT
PREPARED BY ASSISTANT CONSERVATOR OF FOREST,
SOCIAL FORESTRY DIVISION, ERNAKULAM DATED
4.3.2016 SUBMITTED TO 4TH RESPONDENT.
EXHIBIT P17 TRUE COPY OF OWNERSHIP CERTIFICATE DATED
6.4.2016 WITH RESPECT TO THE ADDITIONAL 13
ITEMS OF WILDLIFE ARTIFACTS MADE OF IVORY IN
THE POSSESSION OF 7TH RESPONDENT.
EXHIBIT P18 TRUE COPY OF RTI COMMUNICATION DATED
27.5.2017 ISSUED BY 4TH RESPONDENT TO THE
PETITIONER.
EXHIBIT P19 TRUE COPY OF RELEVANT PAGES OF THE REPORT OF
THE COMPTROLLER AND AUDITOR GENERAL OF INDIA
ON ECONOMIC SECTOR FOR THE YEAR ENDED MARCH
2017, GOVERNMENT OF KERALA REPORT NO.06 OF
THE YEAR 2018 AVAILABLE IN GOVERNMENT WEBSITE
WWW.AGKER CAG. GOV. IN.
EXHIBIT P20 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
THE 4TH RESPONDENT HEREIN W.P©.NO.11074 OF
2019.
EXHIBIT P21 TRUE COPY OF THE REPORT DATED 30.9.20T19
FILED BY THE 6TH RESPONDENT IN M.P.NO.549 OF
2019 IN O.R.NO.14 OF 2012 BEFORE THE COURT OF
JUDICIAL FIRST CLASS MAGISTRATE III,
PERUMBAVOOR.
EXHIBIT P8A ENGLISH TRANSLATION OF EXHIBIT P8
Additional Exhibit TRUE COPY OF THE ORDER DATED 15-10-2019 IN
P22 THIS WRIT PETITION.
Additional Exhibit TRUE COPY OF THE JUDGMENT DATED 19-5-2022 IN
P23 O.P.(CRL.).NO.205 OF 2022 PASSED BY THIS
HON'BLE COURT.
Additional Exhibit TRUE COPY OF THE JUDGMENT DATED 22.2.2023 IN
P24 CRL.R.P.NO.754 OF 2022 AND CONNECTED CASES OF
THIS HON'BLE COURT.
Additional Exhibit TRUE COPY OF THE ORDER DATED 17-8-2023 IN
P25 CMP.NO.628 OF 2020 IN CC 368 OF 2019 IN
O.R.NO.14 OF 2012 OF MEKKAPALA FOREST
STATION, PENDING BEFORE THE COURT OF JUDICIAL
FIRST CLASS MAGISTRATE III, PERUMBAVOOR.
RESPONDENTS EXHIBITS:
Exhibit R8(b) TRUE COPY OF CONSENT LETTER DT. 25.02.1998
GIVEN TO THE 7TH RESPONENT.
Exhibit R8(a) TRUE COPY OF THE CERTIFICATE OF OWNERSHIP DT.
12.09.1986
W.P.(C).Nos.27187
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APPENDIX OF W.P(C).NO.11074/2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER IN CRIMINAL M.P NO.
739 OF 2016 DATED 15-10-2016 OF THE COURT OF
THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), MUVATTUPUZHA.
EXHIBIT P2 TRUE COPY OF G.O(RT) NO. 538/2015/F &WLD
DATED 16-12-2015 ISUED UNDER SECTION 40(4) OF
THE WILD LIFE (PROTECTION) ACT 1972, GRANTING
PERMISSION TO THE 1ST RESPONDENT TO DECLARE
THE ELEPHANT TUSKS.
EXHIBIT P3 TRUE COPY OF ORDER DATED 29-02-2016 IN
CRIMINAL M.C NO. 3318 OF 2012
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 15-6-2017 IN
W.P(C) NO. 35610 OF 2016
EXHIBIT P5 TRUE COPY OF THE DECLARATION MADE BY THE 1ST
RESPONDENT ON 1-1-2016.
EXHIBIT P6 TRUE COPY OF THE LETTER BEARING NO.E2-43/16
DATED 7-1-2016 ISSUED BY THE ASSISTANT
CONSERVATOR OF FORESTS, TO THE PRINCIPAL
CHIEF CONSERVATOR OF FOREST.
EXHIBIT P7 TRUE COPY OF THE DECLARATION OF OWNERSHIP
MADE BY MR. K. KRISHNA KUMAR DATED 4.9.2011.
EXHIBIT P8 TRUE COPY OF PROCEEDINGS NO. BDC2-504/14, OCT
NO.01/2016 DATED 16-01-2016.
EXHIBIT P9 TRUE COPY OF THE INFORMATION RECEIVED FROM
THE PUBLIC INFORMATION OFFICER OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT III, AT
PERUMBAVOOR DATED 2-2-2019.
EXHIBIT P9(A) TRUE TRANSLATION OF EXHIBIT P9
ADDITIONAL EXHIBIT TRUE COPY OF THE SEIZURE REPORT ALONG WITH
P10 MAHAZAR AND STATEMENT PRODUCED IN OR 14/2012
UNDER SECTION 52 OF THE FOREST ACT DATED 12TH
JUNE, 2012 BY THE DEPUTY RANGER, MEEKAPPALA
FOREST STATION.
ADDITIONAL EXHIBIT TRUE COPY OF ENGLISH TRANSLATION OF EXHIBIT
P10(A): P10.
ADDITIONAL EXHIBIT TRUE COPY OF THE REPORT REGARDING THE
P11: STATEMENT GIVEN BY THE 1ST RESPONDENT DURING
THE COURSE OF ENQUIRY BEARING
NO.P2-197/PTN/2012/TD DATED 2ND JULY, 2017
FORWARDED BY ACP, THRIKKAKARA TO D.C.P.,
KOCHI.
ADDITIONAL EXHIBIT TRUE COPY OF ENGLISH TRANSLATION OF EXHIBIT
P11(A): P11.
W.P.(C).Nos.27187
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ADDITIONAL EXHIBIT TRUE COPY OF THE LETTER ISSUED BY
P12: SHRI.K.KRISHNAKUMAR TO THE CHIEF CONSERVATOR
OF FOREST AND WILD LIFE, KERALA STATE DATED
4TH SEPTEMBER, 2011
Additional Exhibit TRUE COPY OF THE INTERVENTION PETITION
P13 BEARING CMP NO. 549/2019 IN O.R. NO. 14/2012
FILED BEFORE JUDICIAL FIRST CLASS MAGISTRATE
III, PERAMBAVOOR.
Additional Exhibit TRUE COPY OF THE REPORT FILED BY THE
P14 G.DHANIKAL, RANGE FOREST OFFICER, KODANAD
DATED 30/08/2019 IN CMP NO. 579/2019 IN O.R.
NO. 14/2012 ON THE FILES OF JUDICIAL FIRST
CLASS MAGISTRATE III, PERAMBAVOOR.
Additional Exhibit TRUE COPY OF RELEVANT PAGES OF THE REPORT OF
P15 THE COMPTROLLER AND AUDITOR GENERAL OF INDIA
ON ECONOMIC SECTOR FOR THE YEAR ENDED MARCH,
2017, GOVERNMENT OF KERALA REPORT NO. 06 OF
THE YEAR 2018 AVAILABLE IN GOVERNMENT WEBSITE
: WWW.AGKER.CAG.GOV.IN.
RESPONDENTS EXHIBITS:
Exhibit R3(a) TRUE COPY OF ORDER DATED 13/09/2012 IN MP NO.
Exhibit R3(b) TRUE COPY OF THE LETTER DATED 29/04/2015.
Exhibit R3(c) TRUE COPY OF THE LETTER NO. WL2-3903/86 DATED
12/09/86 ISSUED BY THE CHIEF WILDLIFE WARDER
AS TO THE OWNERSHIP OF THE TUSKS.
Exhibit R3(d) TRUE COPY OF STAMP PAPER AGREEMENT DATED
28/02/1988 ALONG WITH ITS ENGLISH
TRANSLATION.
Exhibit R3(e) TRUE COPY OF THE UNDERTAKING GIVEN TO THE 1ST
RESPONDENT.
Exhibit R3(f) TRUE COPY OF THE STATEMENT GIVEN BY THE 1ST
RESPONDENT SRI.V.MOHANLAL ALONG WITH ITS
ENGLISH TRANSLATION.
Exhibit R3(g) TRUE COPY OF THE STATEMENT GIVEN BY
SRI.P.N.KRISHNAKUMAR ALONG WITH ITS ENGLISH
TRANSLATION.
Exhibit R3(h) TRUE COPY OF THE STATEMENT GIVEN BY
SRI.K.KRISHNAKUMAR ALONG WITH ITS ENGLISH
TRANSLATION.
Exhibit R3(i) TRUE COPY OF THE STATEMENT GIVEN BY
SMT.NALINI RADHAKRISHNAN ALONG WITH ITS
ENGLISH TRANSLATION.
EXHIBIT-R1/18 TRUE COPY OF THE DECLARATION OF MR.K.KRISHNA
KUMAR DATED 3.4.2005.
W.P.(C).Nos.27187
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EXHIBIT-R1/3 TRUE COPY OF THE LETTER DATED 1 JANUARY 2016
ALONG WITH THE FORM OF DECLARATION SUBMITTED
BY THE ANSWERING RESPONDENT TO THE STATE
GOVERNMENT.
EXHIBIT-R1/16 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
12 SEPTEMBER 1986 IN FAVOUR OF MR.
P.N.KRISHNAKUMAR.
EXHIBIT-R1/1 TRUE COPY OF THE LETTER DATED 14.12.2015
ISSUED BY THE PRINCIPAL CHIEF CONSERVATOR OF
FOREST (WILDLIFE) AND CHIEF WILDLIFE WARDEN,
KERALA.
EXHIBIT-R1/9 TRUE COPY OF THE ORDER DATED 12 SEPTEMBER
2012 PASSED BY THE LEARNED MAGISTRATE,
PERUMBAVOOR IN M.P.NO.1259/2012.
EXHIBIT-R1/10 TRUE COPY OF THE ORDER DATED 29 FEBRUARY 2016
IN CRL.M.C NO.3318/2012 OF THIS HONBLE COURT.
EXHIBIT-R1/11 TRUE COPY OF THE ORIGINAL PETITION (CRL)
NO.1896/2013 (WITHOUT EXHIBIT).
EXHIBIT-R1/12 TRUE COPY OF THE JUDGMENT DATED 18 JUNE 2013
IN OP(CRL) NO.1896/2013 OF THIS HONBLE COURT.
EXHIBIT-R1/13 TRUE COPY OF THE LETTER DATED 19 FEBRUARY
2015 OF THE ANSWERING RESPONDENT TO THE
HONBLE PRIME MINISTER OF INDIA.
EXHIBIT-R1/14 TRUE COPY OF THE LETTER DATED 29APRIL 2015 OF
THE GOVERNMENT OF INDIA. MINISTRY OF
ENVIRONMENT AND FOREST AND CLIMATE CHANGE
(MOEF) WILDLIFE DIVISION.
EXHIBIT-R1/4 TRUE COPY OF THE INVENTORY REPORT (FORM 15)
ALONG WITH THE COVER LETTER DATE D7 JANUARY
2016 OF THE ASSISTANT CONSERVATOR OF FOREST.
A/W TYPED COPY.
EXHIBIT-R1/5 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
16 JANUARY 2016 ISSUED BY THE CHIEF
CONSERVATOR OF FOREST.
EXHIBIT-R1/15 TRUE COPY OF THE LETTER DATED 1 JUNE 2015
SENT BY THE ANSWERING RESPONDENT TO THE THEN
CHIEF MINISTER OF KERALA.
EXHIBIT-R1/8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT DATED 15 JUNE 2017 IN WPC NO.
35610/2016 OF THIS HON'BLE COURT.
EXHIBIT-R1/2 TRUE COPY OF THE NOTIFICATION DATED 16
DECEMBER 2015 OF THE FOREST AND WILDLIFE
DEPARTMENT, GOVERNMENT OF KERALA.
EXHIBIT R1/6 TRUE COPY OF THE ORDER DATED 15 OCTOBER 2016
OF THE LEARNED SPECIAL JUDGE, MUVATTUPUZHA.
EXHIBIT-R1/7 TRUE COPY OF THE WRIT PETITION NO.35610/2016
FILED BY THE ANSWERING RESPONDENT BEFORE THIS
HONBLE COURT (WITHOUT EXHIBITS).
W.P.(C).Nos.27187
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EXHIBIT-R1/17 TRUE COPY OF THE STATEMENT FILED BY THE DY
SUPERINTENDENT OF POLICE, VIGILANCE IN WPC
NO.35610/2016 OF THIS HONBLE COURT.
//TRUE COPY//
P.S. TO JUDGE
