The court ruled that provisions of the Kerala Forest Act restricting capture of wild elephants violate the fundamental rights of landowners, being expropriatory without compensation and lacking reasonable justification.

1 In this batch of 14 writ petitions, the petitioners, though different, who are all owners of forest lands in the area, commonly known as the Malabar area, attack the group of four sections, namely S.48 to 51, contained in Chap.7 of the Kerala Forest Act, 1961 (Act IV of 1962), hereinafter to be referred to as the Kerala Act, as unconstitutional and as infringing the fundamental rights guaranteed to the petitioners under Art.19(1)(f) & (g), and 31 of the Constitution. The State of Kerala is the main respondent in most of these writ petitions, though in some of them some of the officers of the Forest Department have also been included as additional respondents.

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 follow. 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 kinds of other forest produce, including wild animals, such as elephants etc. The petitioner has been cutting and removing timber and other trees from the forest 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 petitioner's 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 with, 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 other 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 Forest Act, 1961 (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 Chap.7 of the Kerala Act, S.48 to 51, are provisions which prohibit any person from capturing elephants even from his own forest lands, and also declare that any wild elephants 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 they have to be delivered to the nearest Forest or Police Officer. Those provisions, according to the petitioner, also prescribe for the grant of permits to any person for capturing or shooting wild elephants from his own forest lands; but the elephants captured or killed, even on the basis of such permission, are stated to belong to the Government as its property. Provision his also been made in these sections, making the violation of the provisions attacked, offences punishable under S.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 2 of the Seventh Schedule of the Constitution. The said Entry "Protection of wild animals and birds", does not comprehend the power to leg