Kochi: The Kerala High Court Friday held that the Forest Department’s ownership certificates for ivory items in the possession of actor Mohanlal were void and legally unenforceable.
A Division Bench comprising Justices A K Jayasankaran Nambiar and Jobin Sebastian, however, clarified that the state government may issue a fresh notification under Section 40(4) of the Wildlife (Protection) Act, 1972, if it wishes to allow the actor to retain the ivory articles.
The ruling came on a petition filed by Paulose K A of Eloor, Kochi, challenging the state government’s notifications issued under Section 40(4) of the Act that had allowed Mohanlal to declare two pairs of ivory tusks and 13 ivory artefacts before the Chief Wildlife Warden and subsequently obtain ownership certificates under Section 42 of the Act.
The petitioner argued that the Forest Department had issued the certificates even though criminal proceedings related to the ivories were already pending before the Judicial First Class Magistrate Court, Perumbavoor.
After hearing both sides, the court noted that while the government had issued notifications requiring Mohanlal to declare the ivory items and the actor had complied, the core question was whether those notifications met the statutory requirements.
The Bench pointed out that the state had admitted that the notifications were not published in the official gazette, a mandatory step under the Act.
The government’s contention that adequate publicity through other means was sufficient was rejected by the court.
We are afraid we cannot accept the said contention of the State Government, the Bench observed.
The provisions of Section 40(4) are special provisions that empower a State Government to confer immunity on persons otherwise in unlawful possession of animal articles or trophies. Such power must be exercised strictly in the manner prescribed under the Act.
The court held that failure to publish the notification in the official gazette rendered the orders invalid, ruling that when a statutory power is not exercised in the manner prescribed under the Act, then that power cannot be seen as having been exercised at all.
It further stated that publication through electronic media could not substitute the statutory requirement of gazette publication.
We therefore conclude by holding that the government orders dated December 16, 2015, and February 17, 2016, are void ab initio and legally unenforceable, the court said.
However, while striking down the government orders, the court refrained from commenting on how the ownership certificates were issued, noting that such observations could prejudice the actor in the pending criminal proceedings.
The Bench clarified that the state government is at liberty to issue a fresh notification in accordance with Section 40(4) of the Act to confer immunity as permitted under the law.
