JAMES MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) 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.

(2.) The petitioners before us are essentially aggrieved by the action of the respondent State Government in issuing notifications in terms of Sec. 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 Sec. 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 Sec. 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 Sec. 40(4), and to the ownership certificate granted in terms of Sec. 42 of the 1972 Act, is premised on two contentions, namely (a) that the power under Sec. 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: