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HIGH COURT OF KERALA
C.A.VAIDIALINGAM, J.
Kuppathode Madhavan Hair
Versus
State of Kerala
O.P. Nos.875 of 1862 : and CMP No.2548 of 1962
Decided On : 24-07-1963
Kerala Forest Act, 1951 (Act IV of 1962) - Chapter VII - Sections 48 to 51 - Preservation of Wild Elephants - Constitutionality - Fundamental Rights - Articles 14, 19(1)(f) and (g), and 31 - Whether the provisions are ultra vires the powers of the State Legislature - Whether the provisions are violative of the fundamental rights of the petitioners - Whether the provisions are reasonable restrictions in the interests of the public - Whether the provisions are expropriatory and confiscatory in nature - Whether the provisions infringe the fundamental rights guaranteed under Part III of the Constitution.
Fact of the Case:
The petitioners, who are owners of forest lands in the Malabar area, challenge the constitutional validity of Sections 48 to 51 of Chapter VII of the Kerala Forest Act, 1951 (Act IV of 1962), which prohibit the capture of wild elephants even from their own property and declare that any wild elephant captured or the tusks and teeth of any wild elephant killed in the forest lands in the State, are to be regarded as property of the Government. The petitioners contend that these provisions are beyond the legislative competence of the State Legislature, violate their fundamental rights under Articles 14, 19(1)(f) and (g), and 31 of the Constitution, and are expropriatory and confiscatory in nature.
Finding of the Court:
The Court held that the impugned provisions of the Kerala Forest Act, 1951 (Act IV of 1962) are ultra vires the powers of the State Legislature and violative of the fundamental rights of the petitioners under Articles 14, 19(1)(f) and (g), and 31 of the Constitution. The Court held that the provisions are not reasonable restrictions in the interests of the public and are expropriatory and confiscatory in nature. The Court further held that the provisions infringe the fundamental rights guaranteed under Part III of the Constitution.
Issues: 1. Whether the impugned provisions of the Kerala Forest Act, 1951 (Act IV of 1962) are ultra vires the powers of the State Legislature? 2. Whether the impugned provisions violate the fundamental rights of the petitioners under Articles 14, 19(1)(f) and (g), and 31 of the Constitution? 3. Whether the impugned provisions are reasonable restrictions in the interests of the public? 4. Whether the impugned provisions are expropriatory and confiscatory in nature? 5. Whether the impugned provisions infringe the fundamental rights guaranteed under Part III of the Constitution?
Ratio Decidendi: 1. The Court held that the impugned provisions of the Kerala Forest Act, 1951 (Act IV of 1962) are ultra vires the powers of the State Legislature because they are not covered by Entry 20 of List II of the Seventh Schedule of the Constitution, which deals with "Protection of Wild Animals and Birds". The Court held that the provisions are expropriatory and confiscatory in nature and cannot be considered to be provisions for "Protection of Wild Animals and Birds". 2. The Court held that the impugned provisions violate the fundamental rights of the petitioners under Articles 14, 19(1)(f) and (g), and 31 of the Constitution. The Court held that the provisions infringe the petitioners' right to property, their right to carry on their business, and their right to equality before the law. The Court held that the provisions are not reasonable restrictions in the interests of the public and are not necessary for the protection of wild elephants. 3. The Court held that the impugned provisions are not reasonable restrictions in the interests of the public. The Court held that the State has not placed any materials on record to show how the provisions are necessary for the protection of wild elephants or how they serve the interests of the public. The Court held that the provisions are arbitrary and excessive and go beyond what is required to achieve the stated objective.
Final Decision: The Court allowed all the writ petitions and quashed the impugned provisions of the Kerala Forest Act, 1951 (Act IV of 1962). The Court also issued writs of mandamus directing the respondents to forbear from enforcing the impugned provisions and to return the tusks and teeth of the elephants captured by the petitioners to them.
2. Though the averments contained in all these writ petitions are slightly different, all the learned counsel appearing for the petitioners, as well as the learned Government Pleader appearing for the State, have agreed to treat the averments contained in O.P. No. 1108/62 as well as the counter-affidavit filed by the State in the said writ petition, as representing the respective stand taken by the various petitioners, as well as by the State in all these matters.
3. The averments contained in O.P. 1108/62 are briefly as follows. The petitioner is the owner of extensive forest lands belonging to him, absolutely and in his enjoyment. The forests contain timber and other trees, besides several hinds of other forest produce, including wild animals, such as elephants etc. The petitioner has been cutting and removing timber and other trees from the forests in accordance with the usual practice adopted by owners of forest lands; and the process of extraction of timber and removal of timber from the forests is - also adopted as incidental to the petitioners business as a dealer in timber which business again is being carried on by him for a number of years. The petitioner claims that as owner of the forest lands, he has the absolute right to the use and enjoyment of the forests and forest produce without those rights being in any manner curtailed, interfered who, or affected. One such right of enjoyment, according to the petitioner, is the right to capture wild elephants found therein, tame and train them, and employ them for purposes of removing timber trees felled from the forests and for ether purposes. In fact, the petitioner claims that the right to capture elephants found on his property, is incidental to his right as owner of the forest lands, just as his right to take the other forest produce, such as timber and other trees, honey, wax, tusks, etc.
4. The petitioner then refers to the Kerala Forests Act, 1951 (Act IV of 1962), as having come into force on 18-1-1962. The said Act purports to be an Act to unify and amend the law relating to the protection and management of forests in the State of Kerala. According to the petitioner, the provisions contained in Chapter VII of the Kerala Act, Sections 48 to 51, are provisions which prohibit any person from capturing elephants even from his own forest lands, and also declare that any wild elephant captured or the tusks and teeth of any wild elephant killed in the forest lands in the State, are to be regarded as property of the Government and that the have to be delivered to the nearest Forest or Police Officer. Those provisions, according to the petitioner, sis prescribe for the grant of permits to any person for capturing or shooting wild elephants from his own forest land; but the elephants captured or killed, even on the basis of such permission, are stated to belong to the Government as its property. Provision has also been made in these Sections, making the violation of the provisions attacked, offences punishable under Sec. 49.
5. According to the petitioner, these provisions are beyond the legislative competence of the State Legislature, and such legislation is not taken in by Entry No. 20 in List 11 of the Seventh Schedule of the Constitution. The said Entry "Protection of wild animals and birds",
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