The absence of official gazette publication renders notifications invalid under the Wild Life Protection Act, necessitating strict compliance with statutory procedures.

JUDGMENT :

A.K. Jayasankaran Nambiar, J.

The above two writ petitions, being in the nature of public interest litigations, were initially posted before the bench of the Hon’ble the Chief Justice, who by his order on the administrative side thought it apposite to post these matters before this bench. It is thus that these matters were taken up by us for consideration and disposal on merits.

Brief Facts:

2. The petitioners before us are essentially aggrieved by the action of the respondent State Government in issuing notifications in terms of Section 40 (4) of the Wild Life Protection Act, 1972 [hereinafter referred to as the “1972 Act”] that permitted a celebrated film actor from the State to declare two pairs of Ivory Tusks and 13 Ivory artifacts before the Chief Wild Life Warden of the State, and the subsequent action of the State Government in issuing ownership certificates to the said person in respect of the same Ivory items in terms of Section 42 of the 1972 Act. It would appear that criminal proceedings had already been initiated against the respondent actor, at the instance of certain complainants, and those proceedings were pending before the Judicial First Class Magistrate Court, Perumbavoor, when the State Government exercised its power under Section 40 (4) of the 1972 Act in favour of the respondent actor. Although in these writ petitions, there is a prayer seeking a direction to the official respondents of the State to expedite the said criminal proceedings, we find that those proceedings are well underway and there are presently a Criminal Revision Petition and Criminal Miscellaneous Cases, that arose therefrom, that are pending consideration before this Court. We do not, therefore, propose to consider the said prayer in these proceedings and the said prayer is accordingly rejected.

3. The challenge to the permission granted under Section 40 (4), and to the ownership certificate granted in terms of Section 42 of the 1972 Act, is premised on two contentions, namely (a) that the power under Section 40 (4) of the 1972 Act was not exercised in the manner prescribed under the Statute since the notifications in question were not published in the official gazette; and (b) that even if the notification granting permission to declare the items was valid, there was no proper enquiry as to whether the possession of the Ivory articles by the respondent actor was lawful in terms of the 1972 Act. It was in respect of the above two issues that we heard the arguments of the learned counsel on either side.

The submissions made before us:

4. The submissions of Dr. Abraham P. Meachinkara, the learned counsel appearing on behalf of the petitioners in both the writ petitions, briefly stated, are as follows:

- The notifications issued by the State Government that permitted the respondent actor to submit declarations as mandated under Section 40 (1) of the 1972 Act in respect of the Ivory tusks and artifacts in his possession were not published in the official gazette as mandated under Section 40 (4) of the 1972 Act. Therefore, the notifications cannot be seen as resulting from a valid exercise of the State Government’s power under the statutory provision and are hence illegal and unenforceable in law. Consequently, the respondent actor could not have obtained any benefit such as immunity from prosecution or an entitlement to ownership certificates in respect of the Ivory tusks and artifacts in his possession. Reliance is placed on the judgments in Rajendra Agricultural University v. Ashok Kumar Prasad and Others – [(2010) 1 SCC 730] ; Sammbhu Nath Jha v. Kedar Prasad Sinha and Others – [(1972) 1 SCC 573]; Poonam Verma and Others v