Indian Handicrafts Emporium & Ors vs Union Of India & Ors

Applicability of the provisions of the Wild Life (Protection)

Act, 1972 is in question in this set of appeals which arise out of a

common judgment and order dated 20.3.1997 passed by a Division Bench of

the Delhi High Court. The appellants herein are engaged in the

business of manufacture and sale of articles relating to art and craft

manufactured from ivory. The appellants herein imported ivory from

African countries. They have manufactured certain articles out of the

same. It is not in dispute that the said import had legally been made

as there did not exist any restriction in that regard.

The Wild Life (Protection) Act, 1972 (hereinafter referred to

as 'the said Act' for the sake of brevity) was enacted to provide for

the protection of wild animals, birds and plants and for matters

connected therewith or ancillary thereto or incidental therewith.

Indian elephant was brought within the purview of Schedule A of the Act

on or about 5.10.1977. The Union of India also banned export of ivory

in the said year.

Chapter V of the said Act deals with trade or commerce in wild

animals, animal articles and trophies. By Act No. 28 of 1986 Chapter

V-A was inserted therein whereby and restrictions were imposed on trade

or commerce in wild animals, cattle and trophies. By Act No.44 of

1991, Section 49-C was inserted in Chapter V-A whereby and where-under

a total prohibition in trade of imported ivory was imposed. The said

Act was brought into force by the Government of India by issuing a

Notification dated 27.9.1991 with effect from 2.10.1991. Six months'

time had been granted to make the said Act operational, that is to say,

until 2.4.1992. Within the aforementioned period, the trader, thus,

could dispose of his stock.

The appellants herein filed writ petitions before the Delhi High

Court, inter alia, questioning the constitutionality and validity of

the 1991 Amendment Act prohibiting trade in the imported ivory on

several grounds. The High Court by an interim order dated 26.3.1992

stayed the operation of the Act. The said interim order was, however,

vacated on 22.5.1992. The appellants herein did not take any step to

dispose of the imported ivory held in stock by them even during the

said period.

By reason of the impugned judgment the High Court upheld the

vires of the said Act. Against the said judgment the appellants are in

appeal before us.

SUBMISSIONS OF THE APPELLANTS

Mr. G.L. Sanghi, the learned senior counsel appearing for the

appellants, would urge that the impugned provisions of the Act are

violative of Article 19(1)(g) of the Constitution of India inasmuch as

thereby the right of the appellant to trade in ivory has unjustly been

prohibited. The learned counsel would submit that restrictions imposed

by reason of the said Act being excessive, the same must be held to be

confiscatory in nature. The Amending Act is also ultra vires Article

14 of the Constitution of India, being irrational and arbitrary. The

learned counsel has drawn our attention to the fact that the population

of elephants has gone up in several countries, e.g., Botswana, South

Africa, Namibia and Zimbabwe, and these countries have been permitted

by Convention on International Trade in Endangered species of Wild

Fauna and Flora (for short 'CITES') to deal in ivory subject of course

to certain restrictions. Our attention has further been drawn to the

fact that ivory which was placed in Appendix-I of the CITES has now

been placed in Appendix-II thereof. It was also submitted that ivory

collected from dead animals should also be permitted to be dealt in.

It was urged that even assuming that the Amending Act of 1991

was a valid piece of legislation, in the year 1991 having regard to the

subsequent event viz. increase in the population of Elephant worldwide

the same may be held to be ultra vires Article 14 of the Constitution

of India. Strong reliance in this behalf has been placed on Motor

General Traders and Another vs. State of Andhra Pradesh and Others

[(1984) 1 SCC 222], Rattan Arya and Others vs. State of Tamil Nadu and

Another [(1986) 3 SCC 385] and Synthetics and Chemicals Ltd. and Others

vs. State of U.P. and Others [(1990) 1 SCC 109]. The learned counsel

would submit that in any event the Amending Act being vague in nature,

the same should be held ultra vires Article 14 of the Constitution of

India. Reliance in this connection has been placed on Hamdard

Dawakhana (Wakf) Lal Kuan, Delhi and Another vs. Union of India and

Others [(1960) 2 SCR 671].

Mr. Sanghi, would further submit that the ivory which has legally

been imported by the appellants herein prior to coming into force of

the 1991 Amendment Act, having not vested in the Government, the

appellants should be held to be at liberty to deal therewith.

According to the learned counsel ivory having lawfully been imported

and the appellants having, thus, been in lawful possession thereof,

there could be no reason as to why they should be deprived of the

possession therefrom, particularly having regard to the provisions of

sub-section (3) of Section 49-C thereof. It was urged that once such a

declaration is filed in terms of sub-section (1) of Section 49-C, the

Chief Wild Life Warden should be held to be statutorily obligated to

give to the appellants a certificate of ownership in respect of the

entire stock-in-trade, entitling them to transfer the same to any

person whether by way of gift, sale or otherwise, as is provided under

sub-section (6) thereof. The learned counsel would argue that there

does not exist any provision in the said Act for payment of

compensation and as the property vests in the Government only on

certain conditions, the appellants herein cannot be dispossessed

therefrom without any authority of law and in that view of the matter,

the impugned provisions must be held to be ultra vires Article 300A

of the Constitution. Sub-section (7)of Section 49-C, Mr. Sanghi would

submit, must be construed so as to uphold the right of property of the

appellants in the property as otherwise the same would be rendered

unconstitutional.

According to the learned counsel, the Parliament amended the Act

by way of Act 16 of 2003, in terms whereof Section 40A was inserted

enabling the holders of stock of ivory to file a fresh declaration. The

learned counsel would contend that having regard to the fact that the

appellants are prohibited from carrying on any trade or business in

ivory, for all intent and purport, they should be held to be covered

by the aforementioned provisions. In any event, the learned counsel

would contend that the guidelines issued by the respondents must be

held to be ultra vires Section 63 of the Act as also the rules framed

thereunder, and, thus, the Central Government cannot be said to have

any jurisdiction to direct that out of the seized articles, only one

item shall be released and the rest would be destroyed. Such a power

conferred upon the statutory authority being wholly arbitrary as

thereby unbriddled power has been conferred, the same must also be held

ultra vires Article 14 of the Constitution. Mr. Sanghi would urge that

the statute cannot be construed only with reference to its objective

sought to be achieved without considering the constitutionality

thereof. Strong reliance in this behalf has been placed on Rustom

Cavasjee Cooper vs. Union of India [(1970) 3 SCR 530].

The learned counsel would further submit that the High Court

wrongly applied the principle of 'res extra commercium' in the instant

case which is per se inapplicable.

SUBMISSIONS OF THE RESPONDENTS:

Mr. Malhotra and Mr. Panjwani, learned counsel appearing on

behalf of the respondents, on the other hand, would submit that having

regard the purpose and object, the said Act seeks to achieve, there

cannot be any doubt whatsoever that the Parliament has the requisite

legislative competence. By reason of the provisions of the Amending

Act 28 of 1986, trade in various articles had been prohibited.

Imported ivory was, however, brought within the purview of Act 44 of

1991. The learned counsel would contend that a bare perusal of the

provisions of the 1986 and 1991 Amending Acts would clearly go to show

that the intention of the Parliament was that those who carry on trade

or business in the imported African ivory should dispose of the same

within a period of six months i.e. before coming into force thereof

whereafter their possession would become illegal, subject, however,

to the grant of certificate of ownership by the Chief Wild Life Warden

in terms of sub-section (3) of Section 49-C of the said Act. It was

submitted that a trader cannot claim the entire imported ivory or the

articles manufactured therefrom to be necessary for his bona fide

personal use and in that view of the matter the Chief Wild Life Warden

has been conferred with a discretionary jurisdiction in relation

thereto and only such articles in respect whereof the certificate of

ownership is issued, can be subject matter of the transfer in terms of

sub-section (6) of Section 49-C of the Act. Any article in respect

whereof no certificate of ownership has been granted, would fall within

the mischief of sub-section (7) of Section 49-C. Such a provision, it

was urged, must be held to be reasonable as a trader was given

sufficient time to dispose of all the articles in his possession.

Drawing our attention to the provision of the Wild Life

(Protection) Act, 1972, Mr. Malhotra would submit that the trade and

possession of ivory having been totally prohibited. Even non-traders

are not entitled to possess the same in terms of Section 40(2A) of the

Act. The learned counsel would further submit that it would not be

correct to contend that legislative policy has changed in India

inasmuch from the minutes of meeting of CITES, it would appear that

India and Kenya differed with the proposal of five African countries

that they be permitted to trade in ivory for any purpose whatsoever.

Our attention was further drawn to the fact that ivory still is in

Appendix-I so far as India is concerned.

STATUTORY PROVISIONS:

The said Act was enacted to provide for the protection of wild

animals, birds and plants and for matters connected therewith or

ancillary thereto or incidental therewith. Section 2 thereof contains

the interpretative provisions. Some of the relevant provisions are :

2. Definitions.--In this Act, unless the

context otherwise requires,--

[(1) "animal" includes mammals, birds,

reptiles, amphibians, fish, other chordates and

invertebrates and also includes their young and

eggs;]

(2) "animal article" means an article made

from any captive animal or wild animal, other

than vermin, and includes an article or object

in which the whole or any part of such animal

[has been used, and ivory imported into India

and an article made therefrom];

(11) "dealer" in relation to any captive

animal, animal article, trophy, uncured trophy,

meat or specified plant, means a person, who

carries on the business of buying or selling

any such animal or article, and includes a

person who undertakes business in any single

transaction;

(14) "Government property" means any property

referred to in section 39; [or section 17H;]

(36) "wild animal" means any animal specified in

Schedules I to IV and found wild in nature;"

Chapter V of the Act deals with trade or commerce in wild

animals, animal articles and trophies.

Section 39(1)(c) occurring in Chapter V of the said Act provides

that every 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 there-under has been committed, shall be the property of the

State Government.

Section 40 provides for declaration. Sub-section (1) whereof is

in the following terms :

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".

Sub-section (2) of Section 40 prohibits acquisition, receiving,

keeping in his control, custody or possession, sell, offer for sale or

otherwise transfer or transport any animals specified in Schedule I or

Part II of Schedule II and allied things by any person whatsoever.

Sub-sections (2A) and (2B) which have been inserted by Act 16 of 2003

read thus :

"(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:

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 381 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 provides for immunity in certain cases which is in

the following terms :

"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 deals with inquiry and preparation of inventories

which is in the following terms :

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.

Chapter V-A was brought into the statute book by Act No.28

of 1986. "Scheduled animal" has been defined in clause (a) of Section

49-A in the following terms :

"(a) 'scheduled animal' means an animal

specified for the time being in Schedule I or

Part II of Schedule II;"

Clause (c) of Section 49-A defines 'specified date' which in

relation to ivory imported into India or an article made therefrom

would mean the date of expiry of six months from the commencement of

Wild Life (Protection) Amendment Act, 1991. The said provision was

inserted by Act No. 44 of 1991.

Section 49-B provides that subject to the other provisions of the

said Section, on and after the specified date, no person shall commence

or carry on the business as a manufacturer of, or dealer in, scheduled

animal article, or a dealer in ivory imported into India or articles

made therefrom or a manufacturer of such articles.

Section 49-C of the said Act reads as under :

"49-C. Declaration by dealers. - (1) Every

person carrying on the business or occupation

referred to in sub-section (1) of Section 49-B

shall, within thirty days from the specified

date, declare to the Chief Wild Life Warden or

the authorised officer, -

(a) his stocks, if any, as at the end of

the specified date of -

(i) scheduled animal articles;

(ii) scheduled animals and parts thereof;

(iii) trophies and uncured trophies derived

from scheduled animals;

(iv) captive animals, being scheduled

animals;

(v) ivory imported into India or articles

made therefrom;

(b)the place or places at which the

stocks mentioned in the declaration

are kept; and

(c)the description of such items, if any,

of the stocks mentioned in the

declaration which he desires to retain

with himself for his bona fide

personal use.

(2) On receipt of a declaration under sub-

section (1), the Chief Wild Life Warden or the

authorised officer may take all or any of the

measures specified in Section 41 and for this

purpose, the provisions of Section 41 shall, so

far as may be, apply.

(3) Where, in a declaration made under sub-

section (1), the person making the declaration

expresses his desire to retain with himself any

of the items of the stocks specified in the

declaration for his bona fide personal use, the

Chief Wild Life Warden, with the prior approval

of the Director, may, if he is satisfied that

the person is in lawful possession of such

items, issue certificates of ownership in

favour of such person with respect to all, or

as the case may be, such of the items as in the

opinion of the Chief Wild Life Warden, are

required for the bona fide personal use of such

person and affix upon such items identification

marks in such manner as may be prescribed :

Provided that no such items shall be kept in

any commercial premises.

(4) No person shall obliterate or counterfeit

any identification mark referred to in sub-

section (3).

(5) An appeal shall lie against any refusal to

grant certificate of ownership under sub-

section (3) and the provisions of sub-sections

(2), (3) and (4) of Section 46 shall, so far as

may be, apply in relation to appeals under this

sub-section.

(6)Where a person who has been issued a

certificate of ownership under sub-section (3)

in respect of any item, -

(a) transfers such items to any person,

whether by way of gift, sale or

otherwise, or

(b) transfers or transports from the

State in which he resides to another

State any such item,

he shall, within thirty days of such transfer

or transport, report the transfer or transport

to the Chief Wild Life Warden or the authorised

officer within whose jurisdiction the transfer

or transport is effected.

(7) No person, other than a person who has been

issued a certificate of ownership under sub-

section (3) shall, on and after the specified

date, keep under his control, sell or offer for

sale or transfer to any person any scheduled

animal, or a scheduled animal article or ivory

imported into India or any article made

therefrom."

Section 50 deals with power of entry, search, arrest and

detention.

Section 51 deals with penalties. The relevant portion of Section

51 is as follows :

51. Penalties.--(1) Any person who [contravenes

any provision of this Act [(except Chapter VA

and section 38J)]] or any rule or order made

thereunder or who commits a breach of any of

the conditions of any licence or permit granted

under this Act, shall be guilty of an offence

against this Act, and shall, on conviction, be

punishable with imprisonment for a term which

may extend to [three years] or with fine which

may extend to [twenty-five thousand rupees] or

with both:

Provided that where the offence committed is in

relation to any animal specified in Schedule I

or Part II of Schedule II or meat of any such

animal or animal article, trophy or uncured

trophy derived from such animal or where the

offence relates to hunting in a sanctuary or a

National Park or altering the boundaries of a

sanctuary or a National Park, such offence

shall be punishable with imprisonment for a

term which shall not be less than three years

but may extend to seven years and also with

fine which shall not be less than ten thousand

rupees:

Provided further that in the case of a second

or subsequent offence of the nature mentioned

in this sub-section, the term of the

imprisonment shall not be less than three years

but may extend to seven years and also with

fine which shall not be less than twenty-five

thousand rupees.

(1A) Any person who contravenes any provisions

of Chapter VA, shall be punishable with

imprisonment for a term which shall not be less

than [three years] but which may extend to

seven years and also with fine which shall not

be less than [ten thousand rupees].]

(1B) Any person who contravenes the provisions

of section 38J shall be punishable with

imprisonment for a term which may extend to six

months, or with fine which may extend to two

thousand rupees, or with both:

Provided that in the case of a second or

subsequent offence the term of imprisonment may

extend to one year, or with fine which may

extend to five thousand rupees.

Section 63 empowers the Central Government to makes rules.

INTERPRETATION OF THE ACT:

The provisions of the said Act must be construed having regard

to the purport and object it seeks to achieve. Not only inter alia

wild animal is to be protected but all other steps which are necessary

therefor so as to ensure ecological and environmental security of the

country must be enforced. The interpretation provisions as regard

'wild animal' employs the word 'includes' and, thus, must be assigned a

broad meaning. The Amending Acts must be viewed in that perspective.

Protection and conservation of wild animal is essential for very

existence of human life. A trade in wild animal which is sought to be

prohibited with an object to oversee survival of human beings must be

given its full effect. The CITES was formulated keeping in view the

aforementioned policy. India is a member State of the Convention. It

is a signatory to the other treaties and conventions in this behalf.

Appendix I of CITES which came into effect from 18th January, 1990

provided for complete prohibition of internal and trans border trade in

ivory. The Parliament enacted the Amendment Act (Act No. 44 of 1991)

with a view to save the species of Indian Elephant and to give effect

to the said international treaties. Prior thereto, that is 1989, the

African Elephant was proposed to be brought in Appendix I of CITES.

In the Press Release of October, 2002, the following appears:

"Another high-profile item is the African

elephant. After an eight-year ban on ivory

sales, in 1997 CITES agreed to allow three

African countries - Botswana, Namibia and

Zimbabwe - to make one time sales from their

existing legal stocks of raw ivory. The ivory

- which weighed 49,574 kg. and represented

5,446 tusks - was sold to Japan in 1999 and

earned some USD5 million. The funds were used

for elephant conservation activities in the

three range states.

In the year 2002, the three countries plus

South Africa and Zambia are proposing one-off

sales of existing ivory stocks to be followed

later by annual quotas. The proposals are for

a first sale of 20,000 kg. and an annual quota

of 4,000 kg. for Botswana, 10,000 Kg. and 2,000

kg. respectively for Namibia, 30,000 kg. and

2,000 kg. for South Africa and 10,000 kg. and

5,000 kg. for Zimbabwe. Zambia is proposing a

one-off sale of 17,000 kg. A proposal from

India and Kenya, on the other hand, argues that

further ivory sales from African elephants

should be clearly prohibited as a precautionary

measure for reducing future threats to the

elephant.

Meanwhile, Japan is seeking to open up trade in

most northern hemisphere populations of minke

whale and a Pacific population of Bryde's

whale. Its proposals stress the use of

national legislation and DNA identification of

individual whales to monitor catches and trade.

Similar proposals were presented without

success at the most recent CITES conferences in

1997 and 2000. This year's debate is likely to

involve issues related to science, sustainable

use, possible enforcement problems, and the

international Whaling Commission's moratorium

on commercial whaling."

Further, in the Press Release of 12th November, 2002, the

following appears:

"CITES has conditionally accepted proposals

from Botswana, Namibia and South Africa that

they be allowed to made one - off sales of 20,

10 and 30 tonnes, respectively, of ivory. The

ivory is held in existing legal stocks that

have been collected from elephants that dies of

natural causes or as a result of government -

regulated problem - animal control.

Similar proposals from Zambia and Zimbabwe for

17 and 10 tonnes, respectively, were not

accepted. Today's decisions by CITES must

still be formally adopted by the full Plenary

on Friday, when the current two - week

conference ends."

The rival contention as regard the interpretation and application

of the said Act must be considered having regard to the aforementioned

principles as also the international treaties and developments which

took place subsequently.

WHETHER THE AMENDING ACT 44 OF 1991 IS ULTRA VIRES ARTICLES 19(1)(g)

AND 14 OF THE CONSTITUTION OF INDIA

Appellant No. 1 herein appeared to have imported ivory from 1971

to 1986. It was in possession of 755.930 Kgs. Of solid Ivory Articles

and 10.050 Kgs. with metal.

Dealing in imported ivory so long the law permits may be a

fundamental right but if the statute prohibits it, it must be held to

be a law within the meaning of Clause (6) of Article 19 of the

Constitution of India in terms whereof reasonable restriction is

imposed. A trade which is dangerous to ecology may be regulated or

totally prohibited. For the aforementioned purpose, regulation would

include prohibition.

What would be a reasonable restriction which can be imposed in

public interest is a matter which is no longer res integra.

In Narender Kumar and Others Vs. Union of India and Others [1960]

2 SCR 375, this Court while interpreting the word 'restrictions' held

as follows:

"It is reasonable to think that the makers of

the Constitution considered the word

"restriction" to be sufficiently wide to save

laws "inconsistent" with Art. 19(1), or "taking

away the rights" conferred by the Article,

provided this inconsistency or taking away was

reasonable in the interests of the different

matters mentioned in the clause. There can be

no doubt therefore that they intended the word

"restriction" to include cases of "prohibition"

also. The contention that a law prohibiting the

exercise of a fundamental right is in no case

saved, cannot therefore be accepted."

(See also State of Maharashtra Vs. Mumbai Upnagar Gramodyog Sang [1969]

2 SCR 392)

In Synthetics and Chemicals Ltd. (supra), this Court held:

"76. Balsara case (1951 SCR 682 : AIR 1951 SC

318 : 52 Cri LJ 1361) dealt with the question

of reasonable restriction on medicinal and

toilet preparations. In fact, it can safely be

said that it impliedly and sub-silentio clearly

held that medicinal and toilet preparations

would not fall within the exclusive privilege

of the States. If they did there was no

question of striking down of Section 12(c) and

(d) and Section 13(b) of the Bombay Prohibition

Act, 1949 as unreasonable under Article

19(1)(f) of the Constitution because total

prohibition of the same would be permissible.

In K. K. Narula case (K. K. Narula v. State of

J & K, (1967) 3 SCR 50 : AIR 1967 SC 1368) it

was held that there was right to do business

even in potable liquor. It was not necessary to

say whether it is good law or not. But this

must be held that the reasoning therein would

apply with greater force to industrial

alcohol."

In Ramana Dayaram Shetty Vs. The International Airport Authority

of India and Others [AIR 1979 SC 1628 : 1979 (3) SCR 1014], this Court

held:

"...We fail to see how the plea of

contravention of Article 19(1)(g) or Article 14

can arise in these cases. The Government's

power to sell the exclusive privilege set out

in Section 22 was not denied. It was also not

disputed that these privileges could be sold by

public auction. Public auctions are held to get

the best possible price. Once these aspects are

recognised, there appears to be no basis for

contending that the owner of the privileges in

question who had offered to sell them cannot

decline to accept the highest bid if he thinks

that the price offered is inadequate.

It will be seen from these observations that

the validity of clause (6) of the Order dated

January 6, 1971 was upheld by this Court on the

ground that having regard to the object of

holding the auction, namely, to raise revenue,

the Government was entitled to reject even the

highest bid, if it thought that the price

offered was inadequate. The Government was

bound to accept the tender of the person who

offered the highest amount and if the

Government rejected all the bids made at the

auction, it did not involve any violation of

Article 14 of 19(1)(g). This is a self-evident

proposition and we do not see how it can be of

any assistance to the respondents."

In Har Shankar and Others Vs. Dy. Excise and Taxation

Commissioner [AIR 1975 SC 1121 : (1975) 3 SCR 254], this Court held:

"...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. In all their manifestations, these

rights are vested in the State and indeed

without such vesting there can be no effective

regulation of various forms of activities in

relation to intoxicants. In American

Jurisprudence", Volume 30 it is stated that

while engaging in liquor traffic is not

inherently unlawful, nevertheless it is a

privilege and not a right, subject to

governmental control (page 538). This power of

control is an incident of the society's right

to self-protection and it rests upon the right

of the state to care for the health, morals and

welfare of the people. Liquor traffic is a

source of pauperism and crime (pp. 539, 540,

541)."

In order to determine whether total prohibition would be

reasonable the Court has to balance the direct impact on the

fundamental right of the citizens thereby against the greater public or

social interest sought to be ensured. Implementation of Directive

Principles contained in Part IV is within the expression of

restrictions in the interest of the general public.

In Municipal Corporation of the City of Ahmedabad and Others Vs.

Jan Mohammed Usmanbhai and Another [AIR 1986 SC 1205 : (1986) 2 SCR

700], this court held:

"15. Before proceeding to deal with the points

urged on behalf of the appellants it will be

appropriate to refer to the well-established

principles in the construction of the

constitutional provisions. When the validity of

a law placing restriction on the exercise of a

fundamental right in Article 19(1)(g) is

challenged, the onus of proving to the

satisfaction of the court that the restriction

is reasonable lies upon the State. If the law

requires that an act which is inherently

dangerous, noxious or injurious to the public

interest, health or safety or is likely to

prove a nuisance to the community shall be done

under a permit or a licence of an executive

authority, it is not per se unreasonable and no

person may claim a licence or a permit to do

that act as of right. Where the law providing

for grant of a licence or permit confers a

discretion upon an administrative authority

regulated by rules or principles, express or

implied, and exercisable in consonance with the

rules of natural justice, it will be presumed

to impose a reasonable restriction. Where,

however, power is entrusted to an

administrative agency to grant or withhold a

permit or licence in its uncontrolled

discretion the law ex facie infringes the

fundamental right under Article 19(1)(g).

Imposition of restriction on the exercise of a

fundamental right may be in the form of control

or prohibition.

"20. The tests of reasonableness have to be

viewed in the context of the issues which faced

the legislature. In the construction of such

laws and in judging their validity, courts must

approach the problem from the point of view of

furthering the social interest which it is the

purpose of the legislation to promote. They are

not in these matters functioning in vacuo but

as part of society which is trying, by the

enacted law, to solve its problems and

furthering the moral and material progress of

the community as a whole. (See Jyoti Prasad v.

Union Territory of Delhi ((1962) 2 SCR 125 :

AIR 1961 SC 1602). If the expression 'in the

interest of general public' is of wide import

comprising public order, public security and

public morals, it cannot be said that the

standing orders closing the slaughter houses on

seven days is not in the interest of general

public."

The primal object for which dealing in ivory imported from Africa

had been prohibited was to see that while holding the stock, the people

may not deal in Indian ivory which may be procured from illegal

killings of Indian Elephant. The Amending Act indirectly seeks to

protect Indian Elephant and to arrest their further depletion.

It may be necessary to go into the history of legislation leading

to enactment of the said Act for the purpose of undertaking how small

restrictions were replaced by and by with bigger ones and ultimately to

a total prohibition. We may notice that the first legislation for

protection of birds was enacted in 1887 known as the Wild Birds

Protection act, 1887 (Act No. X of 1887) which was followed by the Wild

Birds and Animals (Protection) Act, 1912. As the object sought to be

achieved by the said Acts was not fulfilled, the same was amended in

the year 1935 in terms of which the Provincial Government could declare

any area to be a sanctuary for the birds or animals and their killing

was made unlawful. As wild life was a State subject of legislation, in

the year 1972 several States adopted resolutions in terms of Article

252 of the Constitution of India empowering the Parliament to pass the

necessary legislation.

The provisions contained in the 1972 Act were found to be

inadequate necessitating extensive amendment. One of the Objects and

Reasons for the said Act was to see that the wild animals or articles

and derivates thereof may not be smuggled out to meet the demand in

foreign markets as there is hardly any market within the country

therefor. A clandestine trade abetted by illegal practices of poaching

which had taken a heavy toll of our wild animals and birds were sought

to be restrained. It was pointed out that the stocks declared by the

traders at the commencement of the Wild Life (Protection) Act, 1972 are

used as a cover for such illegal trade.

The Parliament in its wisdom thought to amend the said Act

further in the year 1991 in terms whereof the following changes were

made:

"(i) It substituted new section for sections

9, 29 and 55 of the Principal Act;

(ii) It omitted sections 10, and 13 to 17 of

the Principal Act;

(iii) It inserted two new chapters, namely,

Chapter IIIA and Chapter IVA, in the Principal

Act; and

(iv) It inserted new Schedule, namely,

Schedule VI, in the Principal Act."

At this juncture, we may usefully take notice of the Statement of

Objects and Reasons of the said Act.

"Poaching of wild animals and illegal trade of

products derived therefrom, together with

degradation and depletion of habitats have

seriously affected wildlife population. In

order to check this trend, it is proposed to

prohibit hunting of all wild animals (other

than vermin). However, hunting of wild animals

in exceptional circumstances, particularly for

the purpose of protection of life and property

and for education, research, scientific

management and captive breeding, would

continue. It is being made mandatory for every

transporter not to transport any wild life

products without proper permission. The

penalties for various offences are proposed to

be suitably enhanced to make them deterrent.

The Central Government Officers as well as

individuals now can also file complaints in the

courts for offences under the Act. It is also

proposed to provide for appointment of honorary

Wild Life Wardens and payment of rewards to

persons helping in apprehension of offenders.

To curb large scale mortalities in wild animals

due to communicable diseases, it is proposed to

make provisions for compulsory immunisation of

livestock in and around National Parks and

Sanctuaries.

It may be recalled that the Parties to the

"Convention on International Trade in

Endangered Species of Wild Fauna and

Flora"(CITES), being greatly concerned by the

decline in population of African elephant (sic)

the import and export of African ivory for

commercial purposes has been prohibited. As a

result import of ivory would no longer be

possible to meet the requirements of the

domestic ivory trade. If the lead to large

scale poaching of Indian elephants. With this

point in view, the trade in African ivory

within the country is proposed to be banned

after giving due opportunity to ivory traders

to dispose off their existing stock."

The Parliament while enacting the said Amending Act took note of

serious dimensions of poaching of wild animals and illegal trade giving

exponential rise of wild animals and their products.

The Hon'ble Minister of State of the Ministry of Environment and

Forest in the House stated:

"Population of Indian elephants, particularly

in South India, are under serious threat by

ivory poachers. Although the trade in Indian

ivory was banned in 1986, the trade in imported

ivory gives an opportunity to unscrupulous

ivory traders to legalise poached ivory in the

name of imported ivory. With this point in

view, the trade in African ivory is proposed to

be banned after giving due opportunity to ivory

traders to dispose of their existing stocks."

During pendency of these matters, as noticed hereinbefore, the

Parliament enacted the Wild Life (Protection) Amendment Act, 2002 (Act

No. 16 of 2003) which came into force with effect from 1st April, 2003.

By reason of the Amending Act of 2003, the possession of an ivory

whether by a trader or a person is completely banned.

There cannot be any doubt whatsoever that a law which was at one

point of time was constitutional may be rendered unconstitutional

because of passage of time. We may note that apart from the decisions

cited by Mr. Sanghi, recently a similar view has been taken in Kapila

Hingorani Vs. State of Bihar [JT 2003 (5) SC 1] and John Vallamattom

and Anr. Vs. Union of India [JT 2003 (6) SC 37].

In this case, however, we are faced with a different situation.

We are concerned with the reason and object for which the amendments

have to be made. We must take into consideration the text and context

of the amending Acts and the circumstances in which they had to be

brought about.

The provisions of the statute are also required to be considered

keeping in view Article 48-A and Article 51A(g) of the Constitution of

India which are in the following terms:

"48-A. Protection and improvement of

environment and safeguarding of forests and

wild life.-- The State shall endeavour to

protect and improve the environment and to

safeguard the forests and wild life of the

country."

"51-A. Fundamental duties. -- It shall be the

duty of every citizen of India --

... ... ... ... ... ... ...

(g) to protect and improve the natural

environment including forests, lakes, rivers

and wild life, and to have compassion for

living creatures;"

We cannot shut our eyes to the statements made in Article 48-A of

the Constitution of India which enjoins upon the State to protect and

improve the environment and to safeguard the forests and wild life of

the country. What is destructive of environment, forest and wild life,

thus, being contrary to the Directive Principles of the State Policy

which is fundamental in the governance of the country must be given its

full effect. Similarly, the principles of Chapter IVA must also be

given its full effect. Clause (g) of Article 51A requires every

citizen to protect and improve the natural environment including

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

creatures. The amendments have to be carried out keeping in view the

aforementioned provisions.

It is, therefore, difficult to accept the contention of Mr.

Sanghi that protection and preservation of wild life would not be in

public interest and/ or cannot be extended to imported ivory. Wild

Life forms part of our cultural heritage. Animals play a vital role in

maintaining ecological balance. The amendments have been brought for

the purpose of saving the endangered species from extinction as also

for arresting depletion in their numbers caused by callous exploitation

thereof.

In D.D. Basu's Commentary on the Constitution of India (Sixth

Edition, Volume C) at page 45-46, the law has been summarized in the

following manner:

"It is now settled that no inflexible answer to

this question is possible, and that it is the

nature of the business or property which is an

important element in determining how far the

restriction may reasonably go:

(A) In the case of inherently dangerous or

noxious trades, such as production or trading

in liquors or cultivation of narcotic plants,

or trafficking in women, it would be a

'reasonable restriction' to prohibit the trade

or business altogether.

(B) Where the trade or business is not

inherently bad, as in the preceding cases, it

must be shown by placing materials before the

Court that prohibition of private enterprise in

the particular business was essential in the

interests of public welfare. Thus -

In order to prevent speculative dealings in

'essential commodities' (such as cotton),

during a period of emergency, the State may

impose a temporary prohibition of all normal

trading on such commodities. In the later case

of Narendra Vs. Union of India (supra), the

Supreme Court has sustained even a permanent

law leading to the elimination of middle-men

from the business in essential commodities in

order to ensure the supply of such goods to the

consumers at a minimum price."

The Amending Acts satisfy also the strict scrutiny test.

The stand of the State that by reason of sale of ivory by the

dealers, poaching and killing of elephants would be encouraged, cannot

be said to be irrational. Mr. Sanghi, as noticed hereinbefore, has

drawn our attention to the changes sought to be effected in CITES at

the instance of Botswana, South Africa, Namibia and Zimbabwe. The

question as to whether a reasonable restriction would become

unreasonable and vice-versa would depend upon the fact situation

obtaining in each case. In the year 1972 when the said Act was enacted

there might not have been any necessity to preserve the elephant as

also ivory. The species might not have been on the brink of

extinction. The Objects and Reasons set out for brining in amendments

in the said Acts in the years 1986, 1991 and 2003 clearly bring into

fore the necessity to take more and more stringent measures so as to

put checks on poaching and illegal trade in ivory. Experience shows

that poaching may be difficult to be completely checked. Preventive

measures as regard poaching leading to killing of elephants for the

purpose of extraction of their tusks is a difficult task to achieve

and, thus, the Parliament must have thought it expedient to put a

complete ban in trade in ivory to meet the requirement of the country.

India being a sovereign country is not obligated to make law only

in terms of CITES; it may impose stricter restrictions having regard to

local needs.

In John Vallamattom and Anr. Vs. Union of India [JT 2003 (6) SC

37] this Court speaking through the Hon'ble Chief Justice of India

held:

"Furthermore, India being a signatory to the

Declaration on the Right to Development adopted

by the World Conference on Human Rights and

Article 18 of the United Nations Covenant on

Civil and Political Rights, 1966, the impugned

provision may be judged on the basis

thereof."

Referring to Article 1 of the Declaration on the Right to

Development and Article 18 of the United Nations Covenant on Civil and

Political Rights 1966, this Court following Kapila Hingorani Vs. State

of Bihar [JT 2003 (5) SC 1] observed that the provisions of law must be

judged keeping in view the international treaties and conventions

stating:

"It is trite that having regard to Article

13(1) of the Constitution, the

constitutionality of the impugned legislation

is required to be considered on the basis of

laws existing on 26th January, 1950, but while

doing so the court is not precluded from taking

into consideration the subsequent events which

have taken place thereafter. It is further

trite that that the law although may be

constitutional when enacted but with passage of

time the same may be held to be

unconstitutional in view of the changed

situation.

Justice Cardoze said :

"The law has its epochs of ebb and

flow, the flood tides are on us.

The old order may change yielding

place to new; but the transition is

never an easy process".

Albert Campus stated :

"The wheel turns, history changes".

Stability and change are the two

sides of the same law-coin. In

their pure form they are

antagonistic poles; without

stability the law becomes not a

chart of conduct, but a gare of

chance: with only stability the law

is as the still waters in which

there is only stagnation and

death."

Although in that case Section 118 of the Indian Succession Act

was declared unconstitutional but we are of opinion that legal

principles enunciated therein will have to be applied for the purpose

of judging the constitutionality of impugned provisions keeping in view

the subsequent changes.

Submission of Mr. Sanghi to the effect that the Amending Acts

provide for arbitrary unguided and unbridled power is stated to be

rejected. The submission of learned counsel was made on the premise

that after ban was imposed on trade in ivory, all traders become non-

traders and, thus, traders and non-traders could not have been treated

differently. When a trade is prohibited as has sought to be done by

reason of the 1991 Amendment Act by inserting Chapter VA, the matters

incidental thereto or connected therewith must be dealt with

accordingly. For all intent and purport the statute would treat the

traders on a different footing than non-traders. They form a different

and distinct class.

The appellants used to trade in ivory stands admitted. They,

thus, would come within the purview of the definition of the trader

also is undisputable. The manner in which despite legal ban on trade a

person may not take recourse to illegal trading is a matter which

squarely falls within the purview of the legislative competence. It is

now well-settled that the Parliament can not only enact a law for

avoidance or evasion of commission of an illegal trade but also may

make law to see that the law is not evaded by taking recourse to

machination or camouflage. The loopholes, if any, in such matters can

and should be plugged. "Means Affecting Means" principle as adumbrated

in United States Vs. Darby [312 US 100 (1941)] is an illustration on

the point. Both substantial and procedural provisions can be made to

make a law in furtherance of the object for which the Act has been

enacted and to see that what is sought to be prohibited directly may

not be achieved by the traders indirectly.

For the purpose of Chapter VA the appellants remained traders

despite the fact that they have been prohibited from carrying on any

business. How after imposing the ban, stock in trade is to be dealt

with is again a matter which can be dealt with by the Legislature. It

has the requisite competence therefor. Furthermore, it is now idle to

contend having regard to the provisions contained in Section 40(2A) of

the Act that the traders have been discriminated with vis-à-vis the

non-traders. Traders are class by themselves and as such no question

of any discrimination arises. The classification is well-defined and

well-perceptible. Traders and non-traders constitute two different

classes and the classification is founded on an intelligible

differentia clearly distinguishing one from the other.

A machinery must be so construed as to effectuate the liability

imposed by the charging section and to make the machinery workable - ut

res magis valeat quam pereat. (See D. Saibaba & Bar Council of India

and Anr. reported in JT 2003 (4) SC 435 and Welfare Assocn. A.R.P.

Maharashtra & Anr. Vs. Ranjit P. Gohil & Ors. reported in 2003 (2)

SCALE 288)

Submission of Mr. Sanghi that the definition of wild animal is

vague cannot be accepted. Hamdard Dawakhana (supra) whereupon Mr.

Sanghi has placed strong reliance is wholly mis-placed. In Hamdard Dawakhana (supra) the 'magic remedy' was held to be

incapable of giving a fixed meaning and, thus, was held ultra vires

Article 14 of the Constitution being vague in nature. We do not find

any such vagueness in any of the provisions of the impugned Acts

including the definition of 'wild animal'. It is clear and

unambiguous.

Reliance placed by Mr. Sanghi on Rustom Cavasjee Cooper (supra)is

equally mis-placed. In that case, this Court was dealing with

nationalization of banks. The Court held that the provisions impugned

therein are ultra-vires. In that situation, it was held:

"Impairment of the right of the individual and

not the object of the State in taking the

impugned action, is the measure of protection.

To concentrate merely on power of the State and

the object of the State action in exercising

that power is therefore to ignore the true

intent of the Constitution."

There is no quarrel with the aforementioned propositions inasmuch

as herein we are upholding vires of the statutes holding that the

restrictions imposed is reasonable.

The Amending Acts in our opinion are constitutional, legal and

valid.

RES-EXTRA COMMERCIUM:

We, however, agree with Mr. Sanghi that in a case of this nature

the doctrine of 'res extra commercium' cannot be invoked. When trade

in a particular commodity is governed by a statute, the same has to be

given its full effect. Trade in ivory was permissible in law. It was

restricted in 1986. It has totally been prohibited in the year 1991.

The Amendment Act, 2003 brought about further changes in terms whereof

further restrictions have been imposed even on the private owners to

possess ivory or any other animal article.

CITES banned trade in ivory but as regard some countries the ban

has been relaxed. At least in five countries ivory has been placed in

Appendix II from Appendix I. We do not know whether in a few years

from now having regard to increase in population of elephant, a

restricted trade in ivory would be permitted. If that is permitted by

amending the said Act, the trade in ivory would be legal.

The submission of the appellants, however, to the effect that the

elephant has been downlisted from Appendix I to Appendix II of CITES is

incorrect. All international trade in elephants or articles thereof

including Asian elephants (Indian species) is prohibited as it

continues to be listed in Appendix I excepting for certain specified

African elephant populations of Botswana, Namibia, South Africa and

Zimbabwe which have now been listed in Appendix II. This limited trade

has been allowed under very strict conditions as mentioned in the CITES

Appendix. Further, India at the CITES Conference (2002) had seriously

opposed permitting of such limited trade and had even submitted a

proposal for a continuation of the ban on ivory trade.

Education having regard to its nature was held to be beyond pale

of business or occupation within the meaning of Article 19(1)(g) of the

Constitution of India.

In Unni Krishnan J.P. and Others Vs. State of Andhra Pradesh and

Others [(1993) 1 SCC 645], it was observed:

"198. We are, therefore, of the opinion,

adopting the line of reasoning in State of

Bombay v. R.M.D. Chamarbaugwala (1957 scr 874 :

air 1957 sc 699) that imparting education

cannot be treated as a trade or business.

Education cannot be allowed to be converted

into commerce nor can the petitioners seek to

obtain the said result by relying upon the

wider meaning of "occupation". The content of

the expression "occupation" has to be

ascertained keeping in mind the fact that

clause (g) employs all the four expressions

viz., profession, occupation, trade and

business. Their fields may overlap, but each of

them does certainly have a content of its own,

distinct from the others. Be that as it may one

thing is clear - imparting of education is not

and cannot be allowed to become commerce. A

law, existing or future, ensuring against it

would be a valid measure within the meaning of

clause (6) of Article 19. We cannot, therefore,

agree with the contrary proposition enunciated

in Sakharkherda Education Society v. State of

Maharashtra (air 1968 Bom LR 690) Andhra Kesari

Education Society v. Govt. of A.P. (AIR 1984 AP

251 : (1984) 1 APLJ 45)and Bapuji Educational

Assn. v. State.(AIR 1986 Kant 80)"

An 11-Judge Bench of this Court in T.M.A. Pai Foundation Vs.

State of Karnataka [(2002) 8 SCC 481], however, held that imparting of

education would come within the purview of the definition of occupation

within the meaning of Article 19(1)(g) of the Constitution of India. This court following Sodan Singh Vs. New Delhi Municipal Committee

[(1989) 4 SCC 155] opined:

"In Unni Krishnan's case (Unni Krishnan, J.P.

v. State of A.P. (1993) 1 SCC 645 at p. 687)

while referring to education, it was observed

as follows :-

"It may perhaps fall under the category of

occupation provided no recognition is sought

from the State or affiliation from the

University is asked on the basis that it is a

fundamental right."

While the conclusion that "occupation"

comprehends the establishment of educational

institutions is correct, the proviso in the

aforesaid observation to the effect that this

is so provided no recognition is sought from

the state or affiliation from the concerned

university is, with the utmost respect,

erroneous. The fundamental right to establish

an educational institution cannot be confused

with the right to ask for recognition or

affiliation. The exercise of a fundamental

right may be controlled in a variety of ways.

For example, the right to carry on a business

does not entail the right to carry on a

business at a particular place. The right to

carry on a business may be subject to licensing

laws so that a denial of the licence prevents a

person from carrying on that particular

business. The question of whether there is a

fundamental right or not cannot be dependent

upon whether it can be made the subject-matter

of controls.

The establishment and running of an educational

institution where a large number of persons are

employed as teachers or administrative staff,

and an activity is carried on that results in

the imparting of knowledge to the students,

must necessarily be regarded as an occupation,

even if there is no element of profit

generation. It is difficult to comprehend that

education, per se, will not fall under any of

the four expressions in Article 19(1)(g).

"Occupation" would be an activity of a person

undertaken as a means of livelihood or a

mission in life. The above quoted observations

in Sodan Singh case (Sodan Singh v. New Delhi

Municipal Committee, (1989) 4 SCC 155)

correctly interpret the expression "occupation"

in Article 19(1)(g)."

The said view has been reiterated recently by a Constitution

Bench in Islamic Academy of Education and Anr. Vs. State of Karnataka

and Ors. decided on 14th August, 2003 [JT 2003 (7) SC 1].

The High Court has referred to the decision in P. Crowley Vs.

Henry Christensen [(1890) 34 Law. Ed. 620] so as to hold that a citizen

has no inherent right to sell intoxicating liquors. Therein the U.S.

Supreme Court was dealing with a federal law imposing restrictions on a

person dealing in retail trade in liquor without obtaining a due

licence therefor. The law was upheld negativing the contention that

the restriction was unreasonable. It was not held therein that trade

of liquor is impermissible in all situations.

Restriction in trade, therefore, would depend upon the nature of

the article and the law governing the field. By reason of judicial

vagaries, fundamental right under Article 19(1)(g) of the Constitution

cannot be further restricted. (See Krishna Kumar Narula Vs. The State

of Jammu and Kashmir & Ors. AIR 1967 SC 1368).

Dr. D.D. Basu in his Commentary on the Constitution of India

(Sixth Edition) Volume L at page 238 stated:

"In Chamarbaugwala's case (supra) as well as in

Fatehchand's case (AIR 1977 SC 1825), the Court

relied upon the observations of Taylor, J. in

Mansell's case (1956) C.L.R. 550, in support of

the theory of res extra commercium, but as

appears from the following observations of

Wynes (1970), p. 263, the doctrine has not had

a peaceful career in Australia, and has

produced conflicting decisions which are not

beyond criticism:

"The question whether exceptions to the

otherwise express provisions of s.92

based upon inherent quality of goods can

be made has not been settled... Since the

Hughes case (1954) 93 C.L.R. 1 it is no

doubt true to say that a State may

legitimately regulate the incidents of

traffic in such cases, but this does not

derive from inherent quality, but from

the proposition that regulation can be

consistent with freedom..""

WHETHER THE APPELLANTS ARE ENTITLED TO POSSESS ANIMAL ARTICLES:

A mere perusal of the definition of 'animal article' in Section

2(2) of the Act would show that the imported ivory falls within it. In

that view of the matter the question as to whether the African elephant

is a scheduled animal or not is irrelevant. Dealing in trade in ivory

is prohibited under Chapter VA. The appellants, therefore, being

traders in ivory would come within the purview of the prohibitions

contained therein. Once they come within the purview of the said

Chapter, they have to be dealt with accordingly. If he has been a

trader, he must make a declaration in terms of Sub-Section (1) of

Section 49-C of the Act. Chapter IV would not apply in his case. The

said Chapter deals with the matters contained therein. Traders in

ivory forming a different class have been dealt with in Chapter VA.

Doctrine of 'generalia specialibus non derogant' would be applicable in

this case. We would deal with this subject in details a little later.

The contention of the appellants that it is covered by the newly

added provision Section 40-A or that the said section discriminates

individual owners and traders is ill-founded.

At the time of passing of the main Wild Life Protection Act in

1972, there were two categories of persons who could be in possession

of animal articles, etc. namely (a) individual (non-traders) - who had

possession of animals articles for their own personal use and (b)

traders - who had possession of such articles for the purpose of sale.

Consequently, the 1972 Act requires individuals to declare and apply

for ownership certificates of the animal articles which were in their

possession. And as regard the traders, Sections 44 to 48 and 49

mandated the traders to declare their stocks and to apply for a

licence. Section 40-A has been incorporated solely for the purpose of

mitigating the omission of individual non-traders who due to lack of

information or ignorance could not declare the animal articles in their

possession within the limited period of 30 days from the commencement

of the 1972 Act as specified in Section 40 of the Act. By reason

thereof another chance has been given to the non-traders to make a

declaration. All the appellant traders on the other hand had

admittedly applied within the period of 30 days as specified in Section

44 of the Act. Hence, the object and purpose of Section 40-A is

limited to individual non-traders and does not discriminate the traders

or inter se the traders.

In any event after the incorporation of Chapter V-A and the

inclusion of ivory in the said Chapter the appellant traders are

governed by the provisions of Chapter V-A. The provisions of Chapter V

which includes Section 40-A is not applicable to the appellant traders.

Chapter V-A is a complete Code in itself and it would be a fallacy to

read into or extend by implication the mitigating provision of Section

40-A into Chapter V-A. The Legislature, had it so desired could have

incorporated a similar provision in Chapter V-A.

Section 49-C provides that every person carrying on the business

or occupation referred to in sub-section (1) of Section 49-B, within

thirty days from the specified date, declare to the Chief Wild Life

Warden or the authorised officer, his stocks, if any, as at the end of

the specified date of ivory imported into India or articles made

therefrom, the place or places at which the stocks mentioned in the

declaration are kept and the description of such items, if any, of the

stocks mentioned in the declaration which he desires to retain with

himself for his bona fide personal use. Sub-section (3) of Section 49-

C further provides that where, in a declaration made under sub-section

(1), the person making the declaration expresses his desire to retain

with himself any of the items of the stocks specified in the

declaration for his bona fide personal use, the Chief Wild Life Warden,

with the prior approval of the Director, may, if he is satisfied that

the person is in lawful possession of such items, issue certificate of

ownership in favour of such person with respect to all, or as the case

may be, such of the items as in the opinion of the Chief Wild Life

Warden, are required for the bona fide personal use of such person and

affix upon such items identification marks in such manner, as may be

prescribed. Sub-section (6) of Section 49-C further provides that

where a person who has been issued a certificate of ownership under

sub-section (3) in respect of any item, it is permissible for him to

transfer any such item to any such person, whether by way of gift, sale

or otherwise, or transfer or transport from the State in which he

resides to another State any such item and he shall within thirty days

from such transfer or transport, report the transfer or transport to

the Chief Wild Life Warden or the authorised officer within whose

jurisdiction the transfer or transport is effected.

On coming into force of Act No.28 of 1986 or Act No.44 of 1991,

however, it may be true that the property does not automatically vest

in the Government. It is not in dispute that in terms of clause (c) of

Section 39 of the Act which was inserted by Act No.44 of 1991 only

ivory imported into India and articles made from such ivory in respect

of which any offence against this Act or any rule or order made

thereunder has been committed, would be the property of the State

Government and not otherwise. But the issue is required to be

considered from a different angle.

On or from the specified date, however, carrying on any trade or

commerce, inter alia, in relation to ivory imported into India or any

article made therefrom is completely prohibited. Despite such

provision, however, a person carrying on a business or occupation or

dealing in trophies, animal articles etc. derived from scheduled

animals would be, in terms of sub-section (1) of Section 49-C of the

Act, entitled to file a declaration disclosing his stocks of ivory

imported into India or articles made therefrom. Once such a

declaration is made and in the event such person makes a declaration

expressing his desire to retain with himself any of the items specified

therein for his bona fide use, a certificate of ownership may be

granted for such item or items which in the opinion of the Chief Wild

Life Warden are required therefor. Only in relation to items for which

such certificate of ownership has been granted, a transfer thereof is

permissible subject to the restrictions imposed under sub-section (6)

of Section 49-C. Sub-section (7) of Section 49-C, however, provides

for prohibition of such ivory imported into India or any article made

therefrom from being kept under the control of the trader for sale or

offer for sale or transfer to any person whatsoever.

The upshot of the aforesaid provisions is that any trader who has

imported ivory legally into India prior to coming into force of the Act

No.44 of 1991, although would not be entitled to carry on any business

or trade in respect thereof, but having regard to the provisions

referred to hereinbefore, unless he commits an offence in relation

thereto, the same would not vest in the Government. He would,

however, not be entitled to keep possession thereof except in the mode

and manner provided for in Section 49-C of the Act.

On a conjoint reading of the aforesaid provisions, there cannot

be any doubt whatsoever that any person who has obtained such a

certificate under sub-section (3) of Section 49-C only may keep

possession of the property i.e. subject to grant of ownership

certificate. In the event he complies with the aforesaid provisions,

he would be entitled to transfer or transport such item as provided for

in sub-section (6) of Section 49-C. There cannot further be any doubt

that in the event no certificate of ownership is granted in favour of a

trader in terms of sub-section (3) of Section 49-C, the question of his

becoming entitled to transfer or transport the property would not

arise, in which event, in terms of sub-section (7) of Section 49-C, he

would be disentitled not only from selling or offering for sale or

transfer the said items but also from keeping the said items under his

control.

The statutory provisions, in our opinion, are absolutely clear

and unambiguous.

The submission of Mr. Sanghi to the effect that the Chief Wild

Life Warden has been conferred with an unguided power to declare any

item as being capable of bona fide personal use of a trader cannot be

accepted. Not only in terms of the provisions of the said Act, a trade

or commerce, inter alia, in relation to ivory has been prohibited,

having regard to the proviso appended to sub-section (3) of Section 49-

C, even such item cannot be kept for display in any commercial

premises. As such ivory or any article made therefrom can neither be

subject matter of trade or commerce nor displayed in any commercial

premises for any reason whatsoever. By reason of the provisions of the

said Act, the trader was given six months' time to dispose of the

articles in his possession. No foundational fact has been laid before

the High Court nor any contention has been raised before us that the

period specified therein under the Act was not reasonable. Articles

which cannot be subject matter of trade or commerce can only be kept

for personal use. Such personal use must be a bona fide one. Once the

requirement for keeping the possession of such article by a trader had

specifically been laid down, it cannot be said that the Chief Wild Life

Warden had been conferred with unguided and uncanalized power. In the

event, an order is passed, the person dissatisfied therewith, may

prefer an appeal in terms of sub-section (5) thereof.

Against such original orders or appellate orders, even a judicial

review would be maintainable.

Sub-section (7) of Section 49-C would be applicable only in

relation to such items or articles wherefor certificate of ownership

has not been granted. If a person keeps under his control, sells or

offers for sale or transfers the same to any other person, he would be

subject to a penalty as provided under sub-section (1-A) of Section 51

of the Act.

Sub-section (2) of Section 51 empowers the competent court to

direct that such property be forfeited by the Government, in which

event, clause (c) of Section 39 would be attracted. We, therefore, do

not find that the provisions of the said Act are anomalous in nature.

It is true, as has been pointed out by Mr. Sanghi, that the respondents

made a statement before the High Court that the property in possession

of the appellants did not vest in the Government but such a statement

was made evidently having regard to the provisions of clause (c) of

Section 39 of the Act read with sub-section (2) of Section 59 thereof.

Such property would vest in the Government subject to an order of

forfeiture and subject to an order of conviction and sentence against

the offender for violation of sub-section (7) of Section 49-C is

recorded. We, in view of the provisions of the said Act, therefore,

must hold that not only trade or occupation in relation to ivory in

question is prohibited but possession or any transfer thereof in any

manner whatsoever is prohibited under the Act subject, however, to the

provisions of sub-sections (1), (3) and (6) of Section 49-C of the Act.

The legislature has deliberately used the words 'bonafide

personal use' in Section 49-C and has placed the onus on the traders to

prove the same so as to be entitled to retain the articles out of the

stocks decalred by it. This requirement is due to the fact that the

acquisition of an animal article by an individual non-trader at the

time of purchase would be presumed to be one for his own personal

bonafide use while on the other hand in the case of the traders the

acquisition of animal articles as reflected in the stocks of a trader

would be solely be for the purpose of sale. Hence, the imposition of

the requirement of personal bonafide use in the case of traders cannot

be said to be discriminatory or arbitrary or irrational or perverse

entitling the Appellants to continue to have control thereover.

WHETHER THE IVORY VESTS IN THE GOVERNMENT?

We, however, do not agree with the contention of Mr. Malhotra

that having regard to the fact that appellants have admittedly been

found to be in possession of animal article, they have committed an

offence and as such they would come within the purview of Section

39(a)(i) of the Act as a result whereof the same could vest in the

State.

The question as to whether an offence under the Act has been

committed or not at that stage cannot be determined. Such a

determination furthermore cannot be left for adjudication at the hands

of the executive authority. As and when a seizure is made and the

trader is prosecuted for alleged commission of an offence having regard

to sub-section 7 of Section 49-C of the Act; adjudication therefor must

be made by a competent court of law having jurisdiction in this behalf.

Before a person is convicted a Court has to arrive at the finding that

the accused has committed an offence wherefor a full-fledged criminal

trial would be necessary. In absence of such criminal trial and

offence having been found committed, Section 39 may not have any

application. In that view of the matter it is evident that the

properties do not stand vested in the Government in terms thereof.

HOW THE DICHOTOMY SHOULD BE RESOLVED?

The question, however, would remain as to what would happen to

the property in question. In our opinion, the answer must be found out

by reading all the provisions in their entirety.

It is now well-settled that for the purpose of interpretation of

statute the entire statute is to be read in entirety. The purport and

object of the Act must be given its full effect.

Furthermore, in a case of this nature, principles of purposive

construction must come into play.

In Chief Justice of A.P. Vs. L.V.A. Dikshitulu [AIR 1979 SC 193 :

(1979) 2 SCC 34], this Court observed:

"The primary principle of interpretation is

that a Constitutional or statutory provision

should be construed "according to the intent of

they that made it" (Coke). Normally, such

intent is gathered from the language of the

provision. If the language or the phraseology

employed by the legislation is precise and

plain and thus by itself proclaims the

legislative intent in unequivocal terms, the

same must be given effect to, regardless of the

consequences that may follow. But if the words

used in the provision are imprecise, protean or

evocative or can reasonably bear meanings more

than one, the rule of strict grammatical

construction ceases to be a sure guide to reach

at the real legislative intent. In such a case,

in order to ascertain the true meaning of the

terms and phrases employed, it is legitimate

for the Court to go beyond the arid literal

confines of the provision and to call in aid

other well-recognised rules of construction,

such as its legislative history, the basic

scheme and framework of the statute as a whole,

each portion throwing light, on the rest, the

purpose of the legislation, the object sought

to be achieved, and the consequences that may

flow from the adoption of one in preference to

the other possible interpretation.

In Kehar Singh Vs. State (Delhi Admn.) [AIR 1988 SC 1883 : (1988)

3 SCC 609], this Court held:

"During the last several years, the 'golden

rule' has been given a go-by. We now look for

the "intention" of the legislature or the

'purpose' of the statute. First, we examine the

words of the statute. If the words are precise

and cover the situation on hand, we do not go

further. We expound those words in the natural

and ordinary sense of the words. But, if the

words are ambiguous, uncertain or any doubt

arises as to the terms employed, we deem it as

our paramount duty to put upon the language of

the legislature rational meaning. We then

examine every word, every section and every

provision. We examine the Act as a whole. We

examine the necessity which gave rise to the

Act. We look at the mischiefs which the

legislature intended to redress. We look at the

whole situation and not just one-to-one

relation. We will not consider any provision

out of the framework of the statute. We will

not view the provisions as abstract principles

separated from the motive force behind. We will

consider the provisions in the circumstances to

which they owe their origin. We will consider

the provisions to ensure coherence and

consistency within the law as a whole and to

avoid undesirable consequences."

In District Mining Officer Vs. Tata Iron & Steel Co. [JT 2001 (6)

SC 183 : (2001) 7 SCC 358], this Court stated:

"A statute is an edict of the legislature and

in construing a statute, it is necessary, to

seek the intention of its maker. A statute has

to be construed according to the intent of them

that make it and the duty of the court is to

act upon the true intention of the legislature.

If a statutory provision is open to more than

one interpretation, the court has to choose

that interpretation which represents the true

intention of the legislature. This task very

often raises difficulties because of various

reasons, inasmuch as the words used may not be

scientific symbols having any precise or

definite meaning and the language may be an

imperfect medium to convey one's thought or

that the assembly of legislatures consisting of

persons of various shades of opinion purport to

convey a meaning which may be obscure. It is

impossible even for the most imaginative

legislature to forestall exhaustively

situations and circumstances that may emerge

after enacting a statute where its application

may be called for. Nonetheless, the function of

the courts is only to expound and not to

legislate. Legislation in a modern State is

actuated with some policy to curb some public

evil or to effectuate some public benefit. The

legislation is primarily directed to the

problems before the legislature based on

information derived from past and present

experience. It may also be designed by use of

general words to cover similar problems arising

in future. But, from the very nature of things,

it is impossible to anticipate fully in the

varied situations arising in future in which

the application of the legislation in hand may

be called for and words chosen to communicate

such indefinite referents are bound to be in

many cases, lacking in clarity and precision

and thus giving rise to controversial questions

of construction. The process of construction

combines both literal and purposive approaches.

In other words, the legislative intention i.e.

the true or legal meaning of an enactment is

derived by considering the meaning of the words

used in the enactment in the light of any

discernible purpose or object which comprehends

the mischief and its remedy to which the

enactment is directed."

In State of A.P. Vs. Mc. Dowell Company [AIR 1996 SC 1627], this

Court held:

"An enactment cannot be struck down on the

ground that Court thinks it unjustified. The

Parliament and the Legislatures, composed as

they are of the representatives of the people,

are supposed to know and be aware of the need

of the people and what is good and bad for

them. The Court cannot sit in judgment over

their wisdom. In this connection, it should be

remembered that even in the case of

administrative action, the scope of judicial

review is limited to three grounds viz., (i)

unreasonableness, which can more appropriately

be called irrationality, (ii) illegality and

(iii) procedural impropriety (See Council of

Civil Services Union Vs. Minister for the Civil

Services (1985 AC 374), which decision has been

accepted by this Court as well). The

applicability of doctrine of proportionality

even in administrative law sphere is yet a

debatable issue. (See the opinions of Lords

Lowry and Ackner in R. v. Secretary of State

for the Home Department Ex-parte Brind, (1991

AC 696 at 766-67 and 762). It would be rather

odd if an enactment were to be struck down by

applying the said principle when its

applicability even in administrative law sphere

is not fully and finally settled."

In High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor

Panchayat and Others[(2003) 4 SCC 712] this Court noticed:

"In Reserve Bank of India vs. Peerless Co.

reported in 1987(1) SCC 424, this Court said:-

"Interpretation must depend on the text and the

context. They are the basis of interpretation.

One may well say if the text is the texture,

context is what gives the colour. Neither can

be ignored. Both are important. That

interpretation is best which makes the textual

interpretation match the contextual. A statute

is best interpreted when we know why it was

enacted. With this knowledge, the statute must

be read, first a whole and then section by

section, clause by clause, phrase by phrase and

word by word. If a statute is looked at, in

the context of its enactment, with the glasses

of the statute maker, provided by such context,

its scheme, the sections clauses, phrases and

words may take colour and appear different than

when the statute is looked at without the

glasses provided by the context. With these

glasses we must look at the Act as a whole and

discover what each section, each clause, each

phrase and each word is meant and designed to

any as to fit into the scheme of the entire

Act. No part of a statute and no word of a

statute can be construed in isolation, Statutes

have to be construed so that every word has a

place and everything is in its place..."

In "The Interpretation and Application of

Statutes" by Reed Dickersen, the author at page

135 has discussed the subject while dealing

with the importance of context of the statute

in the following terms:-

"...The essence of the language is to reflect,

express, and perhaps even effect the conceptual

matrix of established ideas and values that

identifies the culture to which it belongs.

For this reason, language has been called

'conceptual map of human experience'."

The purport and object of the Statute is

to see that a Tribunal becomes functional

and as such the endeavors of the Court

would be to see that to achieve the same,

an interpretation of Section 10 of the

Act be made in such a manner so that

appointment of a President would be

possible even at the initial constitution

thereof.

Such a construction is permissible by

taking recourse to the doctrine of

strained construction, as has been

succinctly dealt with by Francis Bennion

in his Statutory Interpretation. At

Section 304, of the treatise; purposive

construction has been described in the

following manner:-

"A purposive construction of an enactment is

one which gives effect to the legislative

purpose by -

(a) following the literal meaning of the

enactment where that meaning is in accordance

with the legislative purpose (in this Code

called a purposive-and-literal construction),

or

(b) applying a strained meaning where the

literal meaning is not in accordance with the

legislative purpose (in the Code called a

purposive-and-strained construction).

In DPP vs. Schildkamp (1971) AC 1, it was

held that severance may be effected even where

the 'blue pencil' technique is impracticable.

In Jones vs. Wrotham Park Settled Estates

(1980) AC 74 at page 105, the law is stated in

the following terms:-

"..I am not reluctant to adopt a purposive

construction where to apply the literal meaning

of the legislative language used would lead to

results which would clearly defeat the purposes

of the Act. But in doing so the task on which

a court of justice is engaged remains one of

construction, even where this involves reading

into the Act words which are not expressly

included in it. Kammins Ballrooms Co. Ltd.

vs. Zenith Investments (Torquay) Ltd. (1971 AC

850) provides an instance of this; but in that

case the three conditions that must be

fulfilled in order to justify this course were

satisfied. First, it was possible to determine

from a consideration of the provisions of the

Act read as a whole precisely what the mischief

was that it was the purpose of the Act to

remedy; secondly, it was apparent that the

draftsman and Parliament had by inadvertence

overlooked, and so omitted to deal with an

eventuality that required to be dealt with if

the purpose of the Act was to be achieved; and

thirdly, it was possible to state with

certainty what were the additional words that

would have been inserted by the draftsman and

approved by Parliament had their attention been

drawn to the omission before the Bill passed

into law. Unless this third condition is

fulfilled any attempt by a court of justice to

repair the omission in the Act cannot be

justified as an exercise of its jurisdiction to

determine what is the meaning of a written law

which Parliament has passed."

In Principles of Statutory Interpretation of

Justice G.P. Singh, 5th Edition, 1992, it is

stated:

"The Supreme Court in Bangalore Water Supply

vs. A. Rajappa (AIR 1978 SC 548) approved the

rule of construction stated by DENNING, L.J.

while dealing with the definition of 'Industry

in the Industrial Disputes Act, 1947. The

definition is so general and ambiguous that

BEG, C.J. said that the situation called for

"some judicial heroics to cope with the

difficulties raised". K. IYER, J., who

delivered the leading majority judgment in that

case referred with approbation the passage

extracted above from the judgment of

DENNING,L.J. in Seaford Court Estates Ltd. vs.

Asher. But in the same continuation he also

cited a passage from the speech of LORD SIMONDS

in the case of Magor & St. Mellons R.D.C. vs.

Newport Corporation, 1951(2) All ER 839 as if

it also found a part of the judgment of

DENNING, L.J. This passage reads: "The duty of

the court is to interpret the words that the

legislature has used. Those words may be

ambiguous, but, even if they are, the power and

duty of the Court to travel outside them on a

voyage of discovery are strictly limited." As

earlier noticed LORD SIMONDS and other Law

Lords in Magor and St. Mellon's case were

highly critical of the views of DENNING, L.J.

However, as submitted above, the criticism is

more because of the unconventional manner in

which the rule of construction was stated by

him. In this connection it is pertinent to

remember that although a court cannot supply a

real casus omissus it is equally clear that it

should not so interpret a statute as to create

a casus omissus when there is really none."

In Hameedia Hardware Stores vs. B. Mohan Lal

Sowcar reported in (1988) 2 SCC 513 at 524 the

rule of addition of word had been held to be

permissible in the following words:-

"We are of the view that having regard to the

pattern in which clause (a) of sub-section (3)

of Section 10 of the Act is enacted and also

the context, the words 'if the landlord

required it for his own use or for the use of

any member of his family' which are found in

sub-clause (ii) of Section 10(3)(a) of the Act

have to be read also into sub-clause (iii) of

Section 10(3)(a) of the Act. Sub-clauses (ii)

and (iii) both deal with the non-residential

buildings. They could have been enacted as one

sub-clauses by adding a conjunction 'and'

between the said two sub-clauses, in which

event the clause would have read thus : 'in

case it is a non-residential building which is

used for the purpose of keeping a vehicle or

adapted for such use if the landlord required

it for his own use or for the use of any member

of his family and if he or any member of his

family is not occupying any such building in

the city, town or village concerned which is

his own; and in case it is any other non-

residential building, if the landlord or member

of his family is carrying on, a non-residential

building in the city, town or village concerned

which is his own'. If the two sub-clauses are

not so read, it would lead to an absurd result.

In Punjab Land Development and Reclamation

Corporation Ltd., Chandigarh vs. Presiding

Officer, Labour Court, Chandigarh and Ors.

reported in (1990) 3 SCC 682, this Court held:

"The court has to interpret a statute and apply

it to the facts. Hans Kelsen in his Pure Theory

of Law. (p. 355) makes a distinction between

interpretation by the science of law or

jurisprudence on the one hand and

interpretation by a law-applying organ

(especially the court) on the other. According

to him "jurisprudential interpretation is

purely cognitive ascertainment of the meaning

of legal norms. In contradistinction to the

interpretation by legal organs, jurisprudential

interpretation does not create law". "The

purely cognitive interpretation by

jurisprudence is therefore unable to fill

alleged gaps in the law. The filling of a so-

called gap in the law is a law-creating

function that can only be performed by a law-

applying organ; and the function of creating

law is not performed by jurisprudence

interpreting law. Jurisprudential

interpretation can do no more than exhibit all

possible meanings of a legal norm.

Jurisprudence as cognition of law cannot decide

between the possibilities exhibited by it, but

must leave the decision to the legal organ who,

according to the legal order, is authorised to

apply the law". According to the author if law

is to be applied by a legal organ, he must

determine the meaning of the norms to be

applied : he must 'interpret' those norms (p.

348). Interpretation therefore is an

intellectual activity which accompanies the

process of law application in its advance from

a higher level to a lower level. According to

him, the law to be applied is a frame. "There

are cases of intended or unintended

indefiniteness at the lower level and several

possibilities are open to the application of

law." The traditional theory believes that the

statute, applied to a concrete case, can always

supply only one correct decision and that the

positive-legal 'correctness' of this decision

is based on the statute itself. This theory

describes the interpretive procedure as if it

consisted merely in an intellectual act of

clarifying or understanding; as if the law-

applying organ had to use only his reason but

not his will, and as if by a purely

intellectual activity, among the various

existing possibilities only one correct choice

could be made in accordance with positive law.

According to the author : "The legal act

applying a legal norm may be performed in such

a way that it conforms (a) with the one or the

other of the different meanings of the legal

norm, (b) with the will of the norm-creating

authority that is to be determined somehow, (c)

with the expression which the norm-creating

authority has chosen, (d) with the one or the

other of the contradictory norms; or (e) the

concrete case to which the two contradictory

norms refer may be decided under the assumption

that the two contradictory norms annul each

other. In all these cases, the law to be

applied constitutes only a frame within which

several applications are possible, whereby

every act is legal that stays within the

frame."

In S. Gopal Reddy vs. State of Andhra Pradesh

reported in (1996) 4 SCC 596 this Court

observed :

"It is a well-known rule of interpretation of

statutes that the text and the context of the

entire Act must be looked into while

interpreting any of the expressions used in a

statute. The courts must look to the object

which the statute seeks to achieve while

interpreting any of the provisions of the Act.

A purposive approach for interpreting the Act

is necessary."

(See also M/s. DLF Qutab Enclave Complex Edu. Charit. Trust Vs.

State of Haryana & Ors. 2003 (2) SCALE 145)

The words, which are used in declaring the meaning of other words

may also need interpretation and the legislature may use a word in the

same statute in several different senses. In that view of the matter,

it would not be correct to contend that the expression as defined in

the interpretation clause would necessarily carry the same meaning

throughout the statute.

The question came up for consideration before this Court in State

of Maharashtra vs. Indian Medical Association and Others [(2002) 1 SCC

580] wherein this Court speaking through one of us (Khare V.N., CJI)

was concerned with the term "management" occurring in Maharashtra

University of Health Sciences Act, 1998. Therein a question arose as

to whether the State Government is required to obtain the approval of

the Medical Council of India for establishment of new medical college.

"Management" as contained in Section 2(21) of the Act, which was in the

following terms:-

"Section 2. In this Act, unless the context

otherwise requires, -

(21) 'Management' means the trustees, or the

managing or governing body, by whatever name

called, of any trust registered under the

Bombay Public Trusts Act, 1950 Bom. XXIX of

1950 or any society registered under the

Societies Registration Act, 1860 21 of 1800

under the management of which one or more

colleges or recognised institutions or other

institutions are conducted and admitted to the

privileges of the University.

Provided that, in relation to any college or

institution established or maintained by the

Central Government or the State Government or a

local authority such as a Zila Parishad,

municipal council or municipal corporation, it

means, respectively, the Central Government or

the State Government or the concerned local

authority that is the Zila Parishad, municipal

council or municipal corporation, as the case

may be."

The question which arose for consideration was as to whether the

State Government would come within the purview of the said Act. This

Court answered the said question in the negative holding that the

expression 'Management' must be read contextually in the following

terms:

"We are, therefore, of the opinion that the

defined meaning of the expression 'management'

cannot be assigned or attributed to the word

'management' occurring in Section 64 of the

Act. The word 'management' if read in the

context of the provisions of Section 64 of the

Act, means any one else excepting the State

Government applying to a State Government for

permission to establish the proposed medical

college at proposed location to be decided by

the State Government."

The doctrine of purposive construction, thus, must be applied in

a situation of this nature.

A trader in terms of a statute is prohibited from carrying on

trade. He also cannot remain in control over the animal article. The

logical consequence wherefor would be that he must be deprived of the

possession thereof. The possession of the animal article including

imported ivory must, therefore, be handed over to the competent

authority. In a case of this nature where a statute has been enacted

in public interest, restriction in the matter of possession of the

property must be held to be implicit. If Section 49(7) is not so

construed, it cannot be given effect to.

We, therefore, are of the opinion that the appellants have no

right to possess the articles in question. Keeping in view of the fact

that the provisions of the statute have been held to be intra vires the

question of compensating the appellants would not arise as vesting of

possession thereof in the State must be inferred by necessary

implication.

ARE THE PROVISIONS OF THE AMENDING ACT VIOLATIVE OF THE RIGHT OF

PROPERTY OF THE APPELLANTS?

It is true that right to property is a human right as also a

constitutional right. But it is not a fundamental right. Each and

every claim to property would not be property right.

Control of property by the State short of deprivation would not

entail payment of compensation. (See Davies Vs. Minister of Land,

Agriculture and Water Development [1997] 1 LRC 123 (Zimbabwe Supreme

Court)[Interpreting Convention Rights by Hugh Tomlinson and Vina Shukla

- page 470]

As at present advised, we do not intend to deal with the question

as regard sovereign power of the State vis-à-vis the maxim "salus

populi suprema lex" as stated in Charan Lal Sahu vs. Union of India

[1990) 1 SCC 613],the same may have to be considered in an appropriate

case.

ARE THE GUIDELINES CONSTITUTIONAL?

We, however, are of the opinion that the guidelines issued by the

Central Government do not meet the requirements of law particularly

Section 63 of the Act. Keeping in view the clear and unambiguous

provisions contained in Sub-section (1), (3), (5) and (6) of Section

49-C, the Central Government could not have directed that the

appellants would be entitled to only one piece of article and the rest

would be destroyed. These guidelines,

therefore, in our opinion cannot be given effect to and the appellants

may pursue their remedies, if any, in terms of Sub-Section (3) of

Section 49-C of the Act and their applications filed in this behalf, if

any, must be disposed of in terms of the aforementioned law.

CONCLUSION:

We, therefore, are of the opinion that the respondents would be

entitled to take physical possession of the ivory now in seizure. The

question, however, would be as to whether the Central Government should

destroy the articles including idols of gods and goddesses and

household items like sofa sets depicting cultural and religious

heritage.

It is stated that similar articles are being displayed in museums

as a part of cultural and religious heritage of India.

In view of our findings aforementioned, the appropriate authority

would be entitled to continue to keep in possession the said articles.

We, however, direct that the same be kept at appropriate museums or at

such suitable places where the statutory authorities feel fit and

proper but they should not be destroyed.

With the aforementioned directions and observations, these

appeals and writ petition are dismissed.