Environmental Law Cases [18, 19, 20]

18. Pradeep Krishen vs Union Of India & Others (1996)

Facts:
The petitioner, an environmentalist actuated by public interest filed this petition under Article 32 of
the Constitution of India challenging the legality and constitutional validity of an order issued by
the State of Madhya Pradesh, Department of Forest permitting collection of tendu leaves from
Sanctuaries and National Parks by villagers living around the boundaries thereof with the avowed
object of maintenance of their traditional rights. The petitioner contends that this act of the State
Government is ultra- vires the provisions of the Wild Life (Protection) Act, 1972, as well as the
petitioner's fundamental rights guaranteed by Articles 14 and 1 of the Constitution and is even
otherwise inconsistent with the Directive Principle contained in Article 48A and the Fundamental
Duty cast on every citizen under clause (g) of Article 51A of the Constitution of India. The
petitioner further contends that the said order is mala fide and against public interest.

Keeping in view the traditional rights of the villagers living around the boundaries of those National
Parks and sanctuaries in respect of which the final notification U/s 26-A and 35 have not been
issued, the blocks/areas earmarked for collection of tendu leaves would be reopened as done in the
past.

In order to provide sufficient wages to the villagers living in these areas, labour intensive works
should be provided to them to the maximum extent possible.

The petitioner contends that while the impugned order dated March 28, 1995 permitting collection
of tendu leaves has been issued ostensibly with a view to providing employment and reasonable
livelihood to people living in the vicinity of the National Parks and Sanctuaries, it has ignored the
need to protect the flora and the fauna as well as wild life which are, so to say, nature's laboratory
where evolutionary process of life in all forms takes place and which ought not to be interfered
with. The presence of human beings, albeit in earmarked Parks, will not only adversely affect the
flora and the fauna but will also scare away wild life.

The collection of tendu leaves is a destructive process and can cause extensive damage to ecology
and regeneration of trees etc. Besides, the destruction of organic matter is bound to affect the
structure of the soil and there is the real apprehension of forest ires. The petitioner has, therefore,
filed this petition with a view to preserving the ecology, environment and wild life in the National
Parks and Sanctuaries which are likely to be adversely affected by the implementation of the
impugned order.

Issues:
• Whether an area declared as a Sanctuary and National Park under Section 18 and Section 35,
respectively, of the Wild Life (Protection) Act, 1972 can be exploited for the collection of
minor forest produce in violation of the restrictions contained in the said Act?
• Whether the State Government has the right to exploit minor forest produce from the
sanctuaries and National Parks which have been so declared for the protection and
preservation of ecology, flora, fauna, geomorphologies, natural or zoological significance?

Provisions of law:
• Articles 14, 21, 48-A, 51A(g) of the Constitution
• Sections 26, 26A, 35 of the Wildlife Protection Act, 1972
Contentions

On behalf of the respondents, contended that since no fundamental right of the petitioner has been
violated, the petition is not maintainable under Article 32.The petitioner has no locus standi to
challenge the impugned order on the strength of Articles 14, 21, 48A and/or 51A (g) of the
Constitution of India. The deponent further contends that the traditional rights of the villagers living
in and around the boundaries of the National Parks and Sanctuaries in respect of which the final
notification under Sections 26A and 35 of the Wild Life Protection Act, 1972 has not been issued,
cannot be questioned till the same has been acquired; due compensation has been paid and the
villagers have been rehabilitated. He has further contended that the State Government has the right
to exploit minor forest produce under the Act. While conceding that the State Government has, by
its order dated September 16, 1982, forbidden collection of minor forest produce from the
sanctuaries in the year 1982-83, it did permit collection of certain minor forest produce like Honey,
Tamarind, Mango, Mail leaves, Mail flowers etc., by the tribals for their bona fide use. By 1983 and
1990 orders it also permitted collection of tendu leaves, etc., from the Sanctuaries. The above orders
were partly modified by the 1994 order, whereby the collection of tendu leaves was permitted for
villagers living in and around the areas not notified as Sanctuaries and National Parks under Section
26 and 35 of the Act. Dealing with the petitioner's contention regarding the depletion of the forest
area, there was only a marginal decrease between 1991 and 1993. However, the petitioner's broad
contention in regard to the depletion of the forest cover in Madhya Pradesh remains unassailed.

In these National Parks and Sanctuaries, proceedings under Sections 19 to 25 of the Act were not
taken to acquire the rights of the people. That is why they were not finally notified. The State
Government could not have taken away the rights of the tribals and villagers dependent on minor
forest to produce without acquisition of those rights after payment of compensation. It is for this
reason that the final notification under Section 26A could not be issued unless provision for
payment of compensation and rehabilitation were simultaneously made. So also, in regard to
National Parks, the final declaration could not be issued under section 35 of the Act for the same
reason.

Dealing with the apprehension of the petitioner that setting fire to tendu bushes may set the forest
on fire, the deponent states that the practice of setting fire to tendu bushes has been completely
stopped and that the State Government is equally concerned about protecting the forest from fire as
well as ensuring that the ecology of the place and its bio-diversity are not adversely affected. With a
view to protecting the wild life and curbing poaching activities in the forest area, a special cell
comprising police and forest officials. Therefore, no real danger to the flora, fauna, trees and wild
life in the National Parks and Sanctuaries. The petition is based on suspicion and misconceived
apprehension.

The petitioner does not challenge the right of the tribals living in and around the National Parks and
the Sanctuaries to collect minor produce for their personal bona fide use, but only challenges the
commercial exploitation thereof, in particular, the tendu leaves through contractors. According to
the petitioner, Sanctuaries which were declared as such under Section 18 of the Act prior to its
amendment would continue as such even after the amendment and their status does not get affected
by the amendment and therefore, in respect thereof, a second notification under Section 26A is
unnecessary and the non- issuance of a fresh notification cannot take away the protection extended
by Sections 27 to 34 of the Act.

According to tribals, what they earn from the tendu leaves is barely enough for their sustenance and
is not a big commercial venture as is sought to be made out by the petitioner. The tribals contend
that they have been enjoying this privilege for generations and the denial of this privilege to the
small tribal population located around the sanctuaries would result in ruination of the entire tribal
population since their survival is on minor forest produce only. Briefly, they contend, that while the
petitioner is projecting himself to be eco-friendly, he has totally overlooked the rights and privileges
of the indigenous tribals living around the sanctuaries and surviving on minor forest produce like
tendu leaves, Mail flowers, tamarind and other wild berries. etc., which are nature's bounty to
human-beings.

Observations of Court

We may now interpret the relevant provisions of the Act. The 1972 enactment was a major step in
the direction of protecting wildlife and birds. Hunting of various animals specified in the First
Schedule to the Act is totally prohibited while hunting of certain other animals specified in
Schedules II, III and IV is permitted only on licence. Under the Act, the Central Government is
empowered to declare any area of adequate ecological, geomorphologies, natural or geological
significance, a Sanctuary. In such Sanctuaries, public entry is barred and hunting without a licence
is prohibited. The Act contemplates that a specified area can be declared a National Park. National
Parks so constituted are meant for protection, propagating and developing wildlife. Trade and
commerce in wild animals, articles and products of such animals, except in specified conditions, is
forbidden. Any violation of the provisions of the Act may be visited with penalties of imprisonment
and fine. Several authorities have been created under the Act to give effect to the provisions
intended to protect wildlife and birds. By a subsequent amendment made in 1991, specified plants
have also been brought under the protective umbrella of the Act. This, broadly speaking, is the
purport of the enactment.

2(21) "National Park" means an area declared, whether under Section 35 or Section 38, or deemed,
under sub-section (3) of Section 66, to be declared, as a National Park;
2(26) "Sanctuary" means an area declared, whether under Section 26A or Section 38, or deemed,
under sub-section (3) of Section 66, to be declared, as a wildlife sanctuary."
Sections 3 and 4 contemplate the appointment of certain officers for carrying out the purposes of
the Act. Section 6 provides for the Constitution of a Wildlife Advisory Board. Sections 7 and 8 set
out the functions and duties of the Board. By the 1991 Amendment, Section 8 was amended and
clause (cc) was inserted which added to the list of duties, the duty to advise the State Government
in relation to the measures to be taken for harmonising the needs of tribals and other dwellers of
the forest with the protection and conservation of wildlife. Chapter III deals with Hunting of Wild
Animals. Chapter IV, inter alia, deals with National Parks and Sanctuaries. Section 18 empowers
the State Government to declare by notification any area to be a sanctuary if the area is considered
to be of adequate ecological, faunal, floral, geomorphologies, natural or zoological significance.
Once a notification is issued under Section 18, Section 20 bars the accrual of new rights. Section
24 provides for the acquisition of extant rights.

"26A. (1) When-

(a) a notification has been issued under Section 18 and the period for preferring claims has
elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a
sanctuary, have been disposed of by the State Government; or
(b) any area comprised within any reserve forest or any part of the territorial waters, which is
considered by the State Government to be of adequate ecological, faunal, floral, geomorphologies,
natural or zoological significance for the purpose of protecting, propagating or developing wild life
or its environment, is to be included in a sanctuary, the State Government shall issue a notification
specifying the limits of the area which shall be comprised within the sanctuary and declare that the
said area shall be a sanctuary on and from such date as may be specified in the notification:
(3) No alteration of the boundaries of a sanctuary shall be made except on a resolution passed by
the Legislature of the State."
"35(1) Whenever it appears to the State Government that an area, whether within a sanctuary or
not, is by reason of its ecological, faunal, floral, geomorphologies, or zoological association or
importance, needed to be constituted as a National Park for the purpose of protecting, propagating,
or developing wildlife therein or its environment, it may, by notification, declare its intention to
constitute such area as a National Park.

Since 1989, the practice of setting fire to tendu bushes has been completely and totally stopped.
Therefore, in the absence of any reliable evidence in that behalf, the apprehension must be stated to
be rejected. Also, the Government has been taking all the precautions.

We may now mention that according to the petitioner, the State of Madhya Pradesh has the largest
forest area out of which eleven areas have been declared National Parks ad thirty-three areas as
Sanctuaries. It is the State's contention that tendu leaves collected by the tribals are sold to a co-
operative which in turn sells them to the `Beedi' manufacturers so that the tribals can survive from
the small income made thereby. However, the petitioner laments the gradual erosion or destruction
of the forest area because of the damage caused by tribals. Besides, their presence disturbs animal
life, marine life, birds and reptiles, in addition to the damage caused to the fauna and flora. These
allegations have been specifically denied in the State's counter affidavit. Referring to the Forest
Survey of India for 1987 to 1993, it is shown that the actual forest cover has increased and not
decreased; the small reduction from 1991 to 1993 is due to interpretational correction. However,
according to the State Government, in these 8 Nation Parks and 33 Sanctuaries, proceedings under
Sections 19 to 25 of the Act were not conducted to acquire the rights of those living in and around
them and therefore, they are not finally notified. In other words, unless the traditional rights are
acquired, the final declaration cannot be used under Section 26A of the Act.

It is evident from the above pleadings that since neither the traditional rights of those living in the
vicinity of these parks and sanctuaries have been acquired, nor have provisions been made to either
compensate or rehabilitate them, the final declaration under Sections 26A and 35 has not been
possible. That is the reason why the State Government had to permit collection of tendu leaves by
the impugned notification dated 28.3.1995.

Section 18, in substance, the thrust of the Section is the same except that earlier the State
Government could straightaway declare any area to be a Sanctuary by issuing a notification but
under the amended Section, it has to declare its intention to constitute any area other than an area
comprised within any reserved forest or territorial waters as a Sanctuary. When a notification is
issued under section 18, the Collector is required to enter into and determine the existence, nature
and extent of the rights of any person in or over the land comprised within the limits of the
Sanctuary. After such a notification is issued under section 18, the Collector is required to enquire
into and determine the existence, nature and extent of the rights of any person in or over the land
comprised within the limits of the Sanctuary. After such a notification is issued, no rights can be
acquired in or over the land comprised within the said limits except by succession, testamentary or
otherwise. Section 21 requires the Collector to publish the notification in the regional language in
every town and village in or in the neighbourhood of the area comprised therein specifying the
situation and the limits of the Sanctuary and calling upon persons claiming any right to prefer the
claim before the Collector specifying the nature and extent o such right and the amount and
particulars of the compensation, if any, and the claim in respect thereof. The Collector is then
expected to inquire into the claim preferred by any person and pass an order admitting or rejecting
the same in whole or in part. If such a claim is admitted in whole or in part, the Collector may either
exclude such land from the limits of the proposed Sanctuary or proceed to acquire such rights unless
the rightholder agrees to surrender his rights on payment of agreed compensation, worked out in
accordance with the provisions of the Land Acquisition Act, 1894 or allow the continuance of any
right of any person in or over any lad within the limits of the Sanctuary. If he decides to proceed to
acquire such land or right in or over such land, he shall proceed in accordance with the provisions
of the Land Acquisition Act. Section 27 bars the entry of any person other than those specified in
clauses (a) to (e) thereof from entering or residing in the area of the Sanctuary except in accordance
with the conditions of permit granted under Section 28, Section 26A, which was introduced in the
Act by the amending Act 44 of 1991, has already been extracted earlier. Sections 29 and 30 prohibit
the destruction and setting of fire within the Sanctuary with any weapon unless specifically
permitted. Section 32 bans the use of injurious substances; Section 33 provides for control of
Sanctuaries; Section 34 requires registration of certain persons in possession of arms. These are the
provisions which relate to Sanctuaries. Section 35, which we have extracted earlier deals with
National Parks and sub-section (3) thereof provides that where any area is intended to be declared
as a National Park, the provisions of Sections 19 to 26A (both inclusive) shall, as far as may be,
apply to the investigation and determination of claims, and extinguishment of right, in relation to
any land in such area as they apply in the said matters in relation to any land in a Sanctuary. It will
be seen from this provision that the provisions which apply in relation to investigation and
determination of claims, and extinguishment of rights in the case of Sanctuaries also apply, as far as
may be, in the case of National Parks.

On a plain reading of these provisions, it is, therefore, obvious that the procedure in regard to
acquisition of rights in and over the land to be included in a Sanctuary or National Park has to be
followed before a final notification under Section 26A or Section 35(1) is issued by the State
Government. In the instant case, it is not the contention of the petitioner that the procedure for the
acquisition of rights in or over the land of those living in the vicinity of the areas proposed to be
declared as Sanctuaries and National Parks under Section 26A and 35 of the Act has been
undertaken. It was for this reason that the order of 28.3.1995 in terms stated that since no final
notification was issued under the said provisions, the State Government was not in a position to bar
the entry of villagers living in and around the Sanctuaries and the National Parks so long as their
rights were not acquired and final notifications under the aforesaid provisions were issued. It is,
therefore, not possible to conclude that the State Government had violated any provision of law in
issuing the notification dated 28.3.1995 in question.

Conclusion

We are, therefore, of the opinion that while we do not quash the order of 28.3.1995, we think that
the State Government must be directed to decide on the question of completing the process for
issuing final notifications and then take urgent steps to complete the procedure for
declaring/notifying the areas as Sanctuaries and National Parks under Sections 26A and 35 of the
Act. We, therefore, direct that the State Government shall take immediate action under Chapter IV
of the Act and institute an inquiry, acquire the rights of those who claim any right in or over any
land proposed to be included in the Sanctuary/National Park and thereafter proceed to issue a final
notification under Section 26A and 35 of the Act declaring such areas as Sanctuaries/National
Parks.
 19. M/s Ivory Traders and Manufacturers vs Union of India
Facts:

The writ petitioners in this writ petition are mainly aggrieved by the ban imposed by the Wild Life
(Protection) Amendment Act, 1991, on the trade in ivory derived from the African elephant. It is
asserted by them that they only deal with ivory imported before the coming into operation of
Amendment Act of 1991. It is claimed that the first petitioner is a Society registered under the
Societies Registration Act, 1860 and is an Association of persons connected with the trade and
business of Ivory, including persons manufacturing articles therefrom. The second petitioner to the
fourteenth petitioner are dealers in ivory. They assert that they are carrying on business and trade in
ivory including the manufacture of articles derived from ivory lawfully imported into India prior to
the ban and are members of the first petitioner. The fourteenth petitioner also claims to be an artisan
engaged in the business of carving raw ivory. The fifteenth petitioner too claims to be an artisan.
Therefore, they plead that they are persons affected by the Amendment Act.

The petitioners challenge Sections 5(i), 27(b), 30(i),(iii), 33(b)(ii), 34, 35 and 37 of the Wild Life
(Protection) Amendment Act, 1991 (Act No. 44 of 1991) (for short 'the Amendment Act') and the
corresponding amendments/changes carried out in the Principal Act known as Wild Life
(Protection) Act, 1972. These amendments/changes have been effected: (1) in Section 2(2); (2) by
introduction of Clause (C) in sub-section (1) of Section 39; (3) by omission of Clause (ia) from sub-
section (1) of Section 44; (4) by replacement of second proviso to Section 44; (5) by insertion of
sub-clause (iii) in Clause (C) of Section 49A; (6) by introduction of sub-clause (ia) in Clause (a) of
sub-section (1) of Section 49B; (7) in Section 49C(7); and (8) in Section 51 of the Principal Act.
The petitioners find serious fault with Sections 49A(c)(iii) & 49B(1)(a)(ia) of the Principal Act as
introduced by Sections 33 and 34 of the Amendment Act which have the effect of banning trade in
ivory imported into India or articles derived therefrom. According to the petitioners such a ban is
violative of Articles 19(1)(g), 14 and 300A of the Constitution of India. The further grievance of the
petitioners is that they cannot even retain the possession and control of the ivory lawfully imported
by them and articles made or derived therefrom as the same has been made an offence under
Section 51 of the Act read with Section 49C(2) thereof. According to the petitioners the ban is
unreasonable, unfair and arbitrary.

In another Writ Petition, petitioner is a dealer and manufacturer of jewellery. It is claimed that the
petitioner imported part of his stock of mammoth ivory from Russia and part of it from Hongkong
for the purposes of his business. It is further asserted that ivory derived from mammoth, an extinct
specie of wild animal, and ivory derived from elephants cannot be treated at par or on the same
footing as both are different from each other and can be distinguished.

In so far as the two instant petitions are concerned the only point of distinction between these writ
petitions and the other writ petitions is that the petitioners claim that mammoth ivory in which they
are dealing in is not covered by the provisions of the Act. It is stated in the writ petitions that
mammoth ivory is derived from an extinct species of elephant and actually it is a fossil ivory and
cannot be considered to be ivory at all for the purposes of the Act. The petitioners, however, do not
deny that mammoth ivory is imported from abroad.

Learned counsel contended that the restriction is unreasonable, unfair-and arbitrary and violates the
fundamental rights of the petitioners under Articles 14 and 19(1)(g) of the Constitution. petitioner
should be allowed to sell their stocks of ivory and products derived therefrom and the Government
should buy the same as no provision of compensation was made. He also canvassed that reasons for
not permitting the sale of imported ivory acquired prior to the ban has no nexus with the object
sought to be achieved by the Act. He further submitted that there was no link between elephants in
the remote forests of India and the sales of imported ivory or articles made therefrom in the show
rooms of the petitioners in the cities. Learned counsel contended that the functionaries of the wild
life department of the concerned States can prevent illegal hunting of elephants and there is no good
reason to ban the sale of imported ivory and articles made therefrom.

They contended that the Parliament is not competent to legislate in regard to remnants of ivory
belonging to long extinct Mammoth imported from abroad and actually the Act does not deal with
this kind of ivory at all. According to the learned counsel, the Act only covers elephant ivory and
articles made therefrom. They further canvassed that Elephant ivory" and Mammoth ivory are of
different types and can be distinguished from each other. In a nutshell the submission of learned
counsel is that the mammoth ivory in the possession of the petitioners is free from the provisions
and restraints of the Act.

On the other hand, learned counsel for the respondent/Union of India submitted that the impugned
legislation was enacted to provide protection to wild life and it must be viewed in that perspective.
They further submitted that the necessity of protection and conservation of wild life is essential for
the very existence of human life. According to the learned counsel wild life is antithetic to
conservation and therefore, it is noxious and also threatens the very survival of human beings as
existence of different life forms are dependent for their survival on each other. the restrictions were
reasonable and necessary in public interest and the provisions were meant to give effect to the
directive principles of the State policy.

The petitioners had sufficient time to liquidate the stocks but they did not do so and on the contrary
kept augmenting the same. He further canvassed that dealing in ivory imported from Africa cannot
be claimed as a fundamental right. He vehemently contended that the traders in the garb of dealing
in ivory imported from Africa or mammoth ivory, had actually been dealing with Indian ivory
which resulted in illegal killing of Indian Elephants with the result that their population has gone
down and in order to arrest their further depletion it was necessary to bring about the present
amendments.

The subject of wild life being a State subject falling in Entry 20, List 11 of Seventh Schedule of the
Constitution, there was no way for the Parliament to enact a law in regard to the aforesaid subject
except by invoking the provisions of Art. 252 of the Constitution.

The Parliament enacted the Wild Life (Protection) Act, 1972. It came into effect from February 1,
1973. For the purpose of the present enquiry it will be advantageous to refer to the Statement of
Objects and Reasons of the Act, which reads as follows:

"The rapid decline of India's wild animals and birds, one of the richest and most varied in the
world, has been a cause of grave concern. Some wild animals and birds have already become
extinct in this country and others are in the danger of being so. Areas which were once teeming with
wild life have become devoid of it and even in sanctuaries and National Parks the protection
afforded to wild life needs to be improved. The Wild Birds and Animals Protection Act, 1912 (8 of
1912), has become completely outmoded. The existing State laws are not only out-dated but provide
punishments which are not commensurate with the offence and the financial benefits which accrue
from poaching and trade in wild life produce. Further, such laws mainly relate to control of hunting
and do not emphasise the other factors which are also prime reasons for the decline of India's wild
life, namely, taxidermy and trade in wild life and products derived therefrom.

Having considered the relevant local provisions existing in the States, the Government came to the
conclusion that these are neither adequate nor satisfactory. There is, therefore, an urgent need for
introducing a comprehensive legislation, which would provide for the protection of wild animals
and birds for all matters connected therewith or ancillary and incidental thereto.

Legislation in respect of the aforesaid subject-matter is relatable to entry 20 of the State List in the
Seventh Schedule to the Constitution, namley, protection of wild animals and birds and Parliament
has no power to make a law in this regard applicable to the State (apart from the provisions of Arts.
249 and 250 of the Constitution) resolu tion in pursuance of Art. 252 of the Constitu tion
empowering Parliament to pass the necessary legislation on the subject.”

Provisions

Amendment of Section 2
Amendment of Section 39
Amendment of Section 44
Amendment of Section 49A
Amendment of Section 49C
Amendment of Section 51

Taking into account the amendments, the Principal Act, in so far as it is relevant for the purposes
of the present writ petitions, reads as follow:--

2. Definitions In this Act

39. Wild animals, etc. to be Government property l
44. Dealings in trophy and animal articles without licence prohibited
49-A Definitions In this Chapter
49-B. Prohibition of dealing in trophies, animal articles, etc. derived from Scheduled animals.
49-C. Declaration by dealers
51. Penalties led animal article or ivory

......Having referred to the legislations which preceded the Principal Act and having set out the
objects and reasons of the Principal Act and the Amendment Acts of 1986 and 1991, we will like to
notice the arguments. He submitted that the legislation can impose only reasonable restrictions on
the fundamental rights of the people, including the right to trade and business, in public interest and
the restrictions on trade which are arbitrary, unfair and unjust are vocative of Art. 19(1)(g) of the
Constitution. However, we are adding a small caveat here to the extent that where the trade is
pernicious and noxious it does not attract the protection of Art. 19(1)(g).

Issues:

Whether the ban imposed on trade of imported ivory and articles made therefrom under S.
49B(1)(a)(ia) read with S. 49A(c)(iii) and S. 49C(7) of the impugned legislation violates Art.
19(1)(g) of the Constitution?

In the present case restriction undoubtedly imposes total ban on trade in ivory. The Central
Government has pointed out in its counter-affidavit dated April 30, 1992 that there was serious
problem to protect the Indian elephant as long as the traders were allowed to deal with the ivory,
imported from abroad. It is further pointed out that there is no ready-made and easy method of
distinction between imported ivory and Indian ivory. It is also pointed out that in the circumstances
it was necessary to strike at the root cause of poaching and remove the incentive to kill elephants by
banning ivory trade altogether.
The Minister of State of Environment and Forests while moving the amendment bill in the Lok
Sabha adverted to the fact that the population of Indian elephants, particularly in South India, was
under serious threat by ivory poachers. Although the trade in Indian ivory was banned in 1986, the
trade in imported ivory was giving 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 was
proposed to be banned after giving due opportunity to ivory traders to dispose of their existing
stocks. He also referred to the growing menace of poaching wild animals which had acquired
serious dimensions because of exponential rise in the price of the wild animals and their products.
Therefore, in this scenario when virtually all international trade in ivory stood prohibited and
Member States had given effect to the ban how trade in imported ivory could be permitted by India.
The pressing need to preserve ecology and bio-diversity cannot be sacrificed to promote the self-
interest of a few. Law enacted by Parliament to protect the Indian elephant, keeping in view the
above said international convention, cannot be flawed as imposing unreasonable restraints. Surely,
India cannot be a party to the decimation of the elephant. It is documented that some member
countries have even burnt and destroyed tones of ivory in order to discourage ivory trade and to
protect the elephant which is on the brink of extinction.

Issue:
Whether trade in ivory is pernicious and not covered by Article 19(1)(g) of the Constitution?

The trade in ivory (word 'ivory' is used in comprehensive sense including indigenous as well as
imported ivory is dangerous, subversive and pernicious as it has the potential to deplete the elephant
population and to ultimately extinguish the same. It is well settled that trade which is pernicious can
be totally banned without attracting Article 19(1)(g) of the Constitution. There is a string of
authority for the proposition that no citizen has any fundamental right guaranteed under Article
19(1)(g) of the Constitution to carry on trade in any noxious and dangerous goods like intoxicating
drugs or intoxicating liquors. Trade and business in intoxicating drugs or liquors is only one of the
noxious types of enterprises. This category does not close with drugs & intoxicating liquors. What
was not considered harmful at an earlier point of time, may be discovered to be so later. Time has a
way of changing norms.

It needs to be noticed that the Amendment Act of 1991 has been enacted to carry out the mandate of
the directive principles as enshrined in Article 48-A. The State has the power to completely prohibit
a trade or business which has an adverse impact on the preservation of species of wild life which are
on the verge of extinction both because it is inherently dangerous practice to destory such animals
in terms of ecology and also because of the directive principles contained in Article 48A of the
Constitution. When the Legislature prohibits a pernicious, noxious or a dangerous trade or business
it is in recognition of society's right of self protection.

We hold that:

(1) no citizen has a fundamental right to trade in ivory or ivory articles, whether indigenous or
imported;

(2) assuming trade in ivory to be a fundamental right granted under Article 19(1)(g), the prohibition
imposed thereon by he impugned Act is in public interest and in consonance with the moral claims
embodied in Article 48A of the Constitution; and (3) the ban on trade in imported ivory and*
articles made therefrom is not violative of Article 14 of the Constitution and does not suffer from
any of the maladies, namely, unreasonableness, unfairness and arbitrariness.

Issue:
Whether Sections 39(1)(c) and 49C(7) read with Section 51(2) of the impugned legislation are
violative of Article 300A of the Constitution :

The next question for consideration is whether Sections 39 (1)(c) and 49C(7) read with Section
51(2) of the impugned legislation are void since they do not provide for payment of compensation
to the owners on account of extinguishment of their title in the imported ivory or articles made
therefrom. These provisions have already been extracted in the earlier portion of the judgment and it
is not necessary to extract them again. In regard to these provisions it was contended that even after
the Constitution (Forty-Fourth) Amendment Act, 1978 whereby Article 31 was deleted from Part IV
of the Constitution w.e.f. June 20, 1979, a citizen cannot be deprived of his property without being
paid compensation for the same in accordance with Article 300A, which is a reincarnation of Article
31. Learned Counsel referred to the decisions of the Supreme Court which were rendered in the
context of Article 31 of the Constitution he submitted that the State has no police powers under the
Constitution to acquire the property without payment of compensation. The submissions of the
learned Counsel do not arise in the facts and circumstances of the instant case and the above
decisions have no application thereto.

Having regard to the above decisions it is not necessary for the State to pay compensation to the
petitioners for extinguishment of title of the petitioners in imported ivory or article made therefrom.
Since the State is not under any obligation to buy the stocks of the petitioners in acceptance of the
one time sale proposition propounded by the petitioners, we cannot direct the State to either buy the
same or pay compensation for it.

It was submitted that the Parliament was not authorised to make possession of the imported ivory,
which was lawfully acquired by the petitioners, as an offence under Section 52 read with Section
49C (7) of the Amendment Act 44 of 1991. Learned Counsel submitted that this amounted to
creation of an offence retroactively which is hit by Article 20(1) of the Constitution. We do not
agree with the submission of the learned Counsel as the Legislature has not created any offence
retro-actively. At this stage it will be important to mention that the Asian elephant was included in
Appendix I of the CITES in the year 1975, which meant that international trade in Asian ivory or
articles made therefrom, was prohibited and as a consequence of it Indian ivory could be sold only
in the domestic market. India being a signatory to CITES was also bound to ban trade in Indian
ivory. The traders knew that such a ban was coming. India actually banned the trade in Indian ivory
in 1986. The traders should have disposed of their stocks of Indian ivory from 1975 to 1986. As
regards the African elephant it was proposed on October 18, 1989 to be included in Appendix-I of
the CITES and was so included on January 18, 1990. Ivory traders were allowed to carry on come
tic trade in imported ivory till the expiry of six months' from the coming into force of the
Amendment Act of 1991. Furthermore, as a result of interim stay granted by this Court the
petitioners could dispose of their stocks by July 7, 1992. From the above it is clear that ivory traders
were under a notice of the intending ban since 1989 and had sufficient time to dispose of their
stocks of ivory in the domestic market. Though the statute gave six months time to the petitioners to
liquidate the stocks from the specified date, the petitioners actually being under the protection of the
Court's order could trade up to 7th July, 1992. It is significant to note that the Parliament has merely
made the possession of imported ivory and articles made therefrom, after the specified date an
offence. The petitioners are not being subjected to a penal law on account of their having imported
ivory during the period when there was no ban in existence.

There cannot be any quarrel with the principle laid down, but the question is whether the Parliament
has entrenched upon the sphere of activity of the judiciary. Our emphatic answer is in the negative.
The contentions of the learned Counsel for the petitioners in Writ Petition Nos. 1303/92 and
1964/93 that the impugned legislation does not apply to mammoth ivory as the same is not covered
by the provisions thereof and in any case the Parliament was not competent to legislate with regard
to the subject of mammoth ivory, does not appeal to us. It is significant to note that Act 44 of 1991
inserted Clause (ia) in Section 49-B(1)(a) in the principal Act. As per this clause, no person can
commence or carry on business as a dealer in ivory imported into India or articles made, therefrom,
or as manufacturer of such articles. It is also noteworthy that Sub-clause (ia) uses the words 'ivory
imported into India'. These words have been designedly and deliberately used by the Legislature.
The legislation was intended to cover all descriptions of ivory imported into India including
mammoth ivory. This was to prevent Indian ivory from entering into the market under the pretext of
mammoth ivory or African ivory.

Thus the words 'ivory imported into India' occurring in Section 49B(1)(a)(ia) would include all
descriptions of imported ivory, whether elephant ivory or mammoth ivory.

We are also of the view that the impugned legislation falls within the power and competence of the
Parliament as the same is meant to protect the Indian elephant. In order to achieve that purpose, the
Parliament has undoubted power to deal with matters which, effectuate the same. It can legislate
with regard to all ancillary and subsidiary subjects including the imposition of ban on trade in
imported ivory of all descriptions, Whether drawn from mammoth or elephant, for the salutary
purpose of the preservation of the Indian elephant.

For the foregoing reasons we do not find any merit in the writ petitions and the same are dismissed,
but without any order as to costs. Petition dismissed.

20. Samatha vs State of Andhra Pradesh and Others

Overview:
A writ petition was filed by Samatha, a social action group working for the rights of tribals in the
High Court of Andhra Pradesh in 1993 on the ground that the government was also a 'person' and
hence does not have the power to grant lease in a scheduled area to non tribals for mining purpose.
The A.P. High Court dismissed the writ petition. Then a Special Leave Petition was filed before the
Supreme Court where by full bench judgement Court decided in favour of the tribals and held that
Government lands, forest lands and tribal lands in the scheduled area cannot be leased out to non
tribals or to private industries. The issue which started as non settlement of lands in reserve forest
enclosures in Borra Panchayat was addressed by the bench by directing the State Government to
immediately issue title deeds to tribals in occupation of these lands and ruled that government has
no right to grant mining leases in these enclosure lands belonging to tribal people.
Government cannot lease out lands in schedule areas for mining operations to non tribals as it in
contravention of the Fifth Schedule of the Constitution; Mining activity in scheduled area can be
taken up only by Andhra Pradesh State Mineral Development Corporation or a cooperative of
tribals and that too if they are in compliance with the Forest (Conservation) Act 1980 and the
Environment (Protection) Act 1986.
The Court recognised the 73rd Constitution Amendment Act and the Andhra Pradesh Panchayat Raj
(Extension to Scheduled Areas) Act by stating that the Gram Sabhas shall be competent to
safeguard and preserve community resources and thereby reiterated the need to give the right of self
governance to tribals.The Court also felt that it would be appropriate to constitute a conference of
chief ministers and concerned union ministers to take a policy decision so as to bring about a
suitable enactment for a Consistent scheme throughout the country in respect of tribal lands and
exploitation of mineral wealth. The State Government was, therefore, directed to stop all industries
from mining operations. The Court opined that since the Executive is enjoined to protect social,
economic and educational interests of the tribals, when the state leases out the lands in the
scheduled areas to the non tribals or industries for exploitation of mineral resource, it transmits the
above correlative constitutional duties and obligation to those who undertake to exploit the natural
resources. The Court directed, that at least 20% of the net profits should be set apart as a permanent
fund as part of industrial/business activity for establishment and maintenance of water resources,
schools, hospitals, sanitation and transport facilities by laying roads, etc. This 20% allocation would
not include the expenditure for reforestation and maintenance of the ecology

Facts:
Borra reserved forest area along with its environs consisting of 14 villages, is the notified scheduled
area in Anan – thagiri Mandal of Vishakhapatnam District of Andhra Pradesh. The State
Government granted mining leases in this area to several non – tribal per – sons.
Appeals are directed to resolve mutually inconsistent law adumbrated by two division benches of
Andhra Pradesh in which it dismissed the writ petitions filed by the appellant challenging the power
of government to transfer the government land situated in tribal area to the non – tribals for mining
purpose. Also states that statues referred do not prohibit grant of mining leases of government land
to non – tribals and does not apply to the renewals.
It is the case of appellant that after re – survey, the entire area was identified as reserved forest or at
any rate is a forest area in scheduled area.
On the factual matrix, the appellant society claimed to protect the interests and life of the schedule
tribes in the area.
The division bench held that by operation of the prohibition contained in Section 3 of the
Regulations and Section 2 of FC act, the appellant is not entitled to mining operations.
The appeals of Samatha were allowed and judgement of high court were set aside.
Appellant therefore, filed the appeal under Supreme Court of India.

Statutes referred:
• The Forest Conservation Act, 1980
• Andhra Pradesh Forest Act, 1967
• Andhra Pradesh Scheduled Area Land Transfer Regulation (1 of 1959) as amended by
Regulation II of 1970 (Regulation).

Issues:

• Whether the Regulation would apply to transfer of government land to non – tribal ;
• Whether the government can grant mining lease of the lands situated in scheduled area to a
non – tribal;
• Whether the leases are in violation of Environment Act, 1986?

Contentions:

Appellant’s Arguments:
The appellant advanced the contention that under the Regulation transfer of all lands in schedule
area to a non – tribal is prohibited and the said prohibition equally applied to the government land
and as such the mining leases in favour of the private respondents who are non – tribals are void.
Further it was argued that the word ‘person’ in Section 3(1) of the Regulation would include
government.
In view of Section 2 of Conservation Act no forest land can be utilised for non – forest purpose
without the consent of Central Government.
Lastly, it was contended that Section 11(5) of the MMRD act the leases in favour of the private
respondent who are non tribals must be declared void
The history of the tribal areas traced from the administration under the British rule to the inclusion
of schedule 5 in the constitution conferring a special power to frame regulation for peace and good
government in area clearly indicate that there should not be any allotment of land to the non –
tirbals in tribal area.
The term ‘peace and good government’ should be given a wide interpretation.
The entire object of amendment act of 1970 was to prohibit totally transfer of any land in favour of
a non – tribal member within the agency tract. Also the word ‘person’ should be given widest
perspective.
Relied strongly that the majority view held the word “vest” in Section 3 of the act has shades taking
colour from the context in which it is used.
Forest should include all forests commonly known as forest and therefore, even if the area on which
mining activities are carried on by respondent do not form a part of reserved forest.
Mining leases within the tribal areas must also be annulled, as the mining activities pollutes the
tribal atmosphere becoming hazardous to human life.

Respondent’s Arguments:
The regulation in question prior to its amendment does not prohibit transfer of land by any person in
favour of non – scheduled tribe person but extremely postulates that such a transfer must be with
the consent of competent authority.
If interpretation as to word “person” as contended by appellant is accepted it would lead to
absurdity and provisions of Section 3(1) would be meaningless. Further argued that the word person
as per clause (a) does not include state.
Bearing in mind the object with which the constitution has conferred power on the governor to
frame regulation, there is no imperative to construct the word ‘person’.
Ordinarily a particular word used in a particular statute should receive same meaning unless and
until it is necessary to ascribe a different meaning.
Respondent counsel contended that the respondents does not dispute the proposition that the
expression forest land in conservation act should be given wider meaning and the mining activities
over the forest land cannot continue unless prior approval of central government.

Judgement:
The vesting of disputed area in the central government by virtue of Section 3 of the act is limited as
a statutory receiver with the duty for its management and administration, whereas the vesting of
adjacent area other than the disputed area acquired by the act in central government is absolute with
the power of management and administration.
However, constructing Section 3 and 4(1) held that the area includes the whole bundle movable and
immovable property and all other rights and interests and whole bundle of property and rights vests
by reason in Section 4(2) in the central government free and held the act to be unconstitutional as
the provisions Section 3,4 and 8 were held to be invalid.
Though ordinarily a particular word used in statute should be given the same meaning but it is
permissible to construe the said word differently depending upon the object of the act and the
scheme of the act and the purpose sought to be achieved yet.
The word ‘person’ occurring in Section 3(1) of the regulation does not include State and as such the
mining leases granted in favour different persons do not contravene the provisions of the regulation
but leases should be required to spend a part of profit for the upliftment of the tribals and for
maintaining the ecology of scheduled areas.
In the state of affairs even though the court is of considered opinion that the forest land in Section 2
of conservation act; until it is so determined by state government that the mining activities of the
respondents were being carried on over forest land it would not be possible to hold the provisions.
The only possible direction court had issued was of the consideration that forest department should
inspect the mining areas of private respondents.
The leases in favour of respondent cannot be said invalid on the ground of infraction of Section
11(5) of MMRD act. Appellant’s contention cannot be sustained.
Moreover, on the facts alleged it was not possible to embark upon the inquiry as to whether the
grant of leases within the tribal area are in violation of the provisions of Environment Protection Act
nor the leases could be annulled on that score. Contention of appellant must be rejected.