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Indian Handicrafts Emporium And vs Union Of India (Uoi) And Ors. on 27 August, 2003

Indian Handicrafts Emporium And vs Union Of India (Uoi) And Ors. on 27 August, 2003
Equivalent citations: AIR 2003 SC 3240, 2003 (5) ALD 39 SC
Author: S Sinha
Bench: V Khare, Y Sabharwal, S Sinha

JUDGMENT

S.B. Sinha, J.

INTRODUCTORY REMARKS:

1. Applicability of the provisions of the Wild Life (Protection) Act, 1972 is in question in this set of appeals which arise out of a common judgment and order dated 20.3.1997 passed by a Division Bench of the Delhi High Court. The appellants herein are engaged in the business of manufacture and sale of articles relating to art and craft manufactured from ivory. The appellants herein imported ivory from African countries. They have manufactured certain articles out of the same. It is not dispute that the said import had legally been made as there did not exist any restriction in that regard.

2. The Wild Life (Protection) Act, 1972 (hereinafter referred to as ‘the said Act’ for the sake of brevity) was enacted to provide for the protection of wild animals, birds and plants and for matters connected therewith or ancillary thereto or incidental therewith. Indian elephant was brought within the purview of Schedule A of the Act on or about 5.10.1977. The Union of India also banned export of ivory in the said year.

3. Chapter V of the said Act deals with trade or commerce in wild animals, animal articles and trophies. By Act No. 28 of 1986 Chapter V-A was inserted therein whereby and restrictions were imposed on trade or commerce in wild animals, cattle and trophies. By Act No. 44 of 1991, Section 49C was inserted in Chapter V-A whereby and where-under a total prohibition in trade of imported ivory was imposed. The said Act was brought into force by the Government of India by issuing a Notification dated 27.9.1991 with effect from 2.10.1991. Six months’ time had been granted to make the said Act operational, that is to say, until 2.4.1992. Within the aforementioned period, the trader, thus, could dispose of his stock.

4. The appellants herein filed writ petitions before the Delhi High Court, inter alia, questioning the constitutionality and validity of the 1991 Amendment Act prohibiting trade in the imported ivory on several grounds. The High Court by an interim order dated 26.3.1992 stayed the operation of the Act. The said interim order was, however, vacated on 22.5.1992. The appellants herein did not take any step to dispose of the imported ivory held in stock by them even during the said period.

5. By reason of the impugned judgment the High Court upheld the vires of the said Act. Against the said judgment the appellants are in appeal before us.

SUBMISSIONS OF THE APPELLANTS

6. Mr. G.L. Sanghi, the learned senior counsel appearing for the appellants, would urge that the impugned provisions of the Act are violative of Article 19(1)(g) of the Constitution of India inasmuch as thereby the right of the appellant to trade in ivory has unjustly been prohibited. The learned counsel would submit that restrictions imposed by reason of the said Act being excessive, the same must be held to be confiscatory in nature. The Amending Act is also ultra vires Article 14 of the Constitution of India, being irrational and arbitrary. The learned counsel has drawn our attention to the fact that the population of elephants has gone up in several countries, e.g., Botswana, South Africa. Namibia and Zimbabwe, and these countries have been permitted by Convention on International Trade in Endangered species of Wild Fauna and Flora (for short ‘CITES’) to deal in ivory subject of course to certain restrictions. Our attention has further been drawn to the fact that ivory which was placed in Appendix-I of the CITES has now been placed in Appendix-II thereof. It was also submitted that ivory collected from dead animals should also be permitted to be dealt in.

7. It was urged that even assuming the Amending Act of 1991 was a valid piece of legislation, in the year 1991 having regard to the subsequent event viz. increase in the population of Elephant worldwide the same may be held to be ultra vires Article 14 of the Constitution of India. Strong reliance in this behalf has been placed on Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. , Rattan Arya and Ors. v. State of Tamil Nadu and Anr. and Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors. . The learned counsel would submit that in any event the Amending Act being vague in nature, the same should be held ultra vires Article 14 of the Constitution of India. Reliance in this connection has been placed on Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Anr. v. Union of India and ors. .

8. Mr. Sanghi, would further submit that the ivory which has legally been imported by the appellants herein prior to coming into force of the 1991 Amendment Act, having not vested in the Government, the appellants should be held to be at liberty to deal therewith. According to the learned counsel ivory having lawfully been imported and the appellants having, thus, been in lawful possession thereof, there could be no reason as to why they should be deprived of the possession therefrom, particularly having regard to the provisions of Sub-section (3) of Section 49C thereof. It was urged that once such a declaration is filed in terms of Sub-section (1) of Section 49C, the Chief Wild Life Warden should be held to be statutorily obligated to give to the appellants a certificate of ownership in respect of the entire stock-in-trade, entitling them to transfer the same to any person whether by way of gift, sale or otherwise, as is provided under Sub-section (6) thereof. The learned counsel would argue that there does not exist any provision in the said Act for payment of compensation and as the property vests in the Government only on certain conditions, the appellants herein cannot be dispossessed therefrom without any authority of law and in that view of the matter, the impugned provisions must be held to the ultra vires Article 300A of the Constitution. Sub-section (7) of Section 49C, Mr. Sanghi would submit, must be construed so as to uphold the right of property of the appellants in the property as otherwise the same would be rendered unconstitutional.

9. According to the learned counsel, the Parliament amended the Act by way of Act 16 of 2003, in terms of whereof Section 40A was inserted enabling the holders of stock of ivory to file a fresh declaration. The learned counsel would contend that having regard to the fact that the appellants are prohibited from carrying on any trade or business in ivory, for all intent and purport, they should be held to be covered by the aforementioned provisions. In any event, the learned counsel would contend that the guidelines issued by the respondent must be held to be ultra vires Section 63 of the Act as also the rules framed thereunder, and, thus, the Central Government cannot be said to have any jurisdiction to direct that out of the seized articles, only one item shall be released and the rest would be destroyed. Such a power conferred upon the statutory authority being wholly arbitrary as thereby unbridled power has been conferred, the same must also be held ultra vires Article 14 of the Constitution. Mr. Sanghi would urge that the statute cannot be construed only with reference to its objective sought to be achieved without considering the constitutionality thereof. Strong reliance in this behalf has been placed on Rustom Cavasjee Cooper v. Union of India .

10. The learned counsel would further submit that the High Court wrongly applied the principle of ‘res extra commercium’ in the instant case which is per se inapplicable.

SUBMISSIONS OF THE RESPONDENTS:

11. Mr. Malhotra and Mr. Panjwani, learned counsel appearing on behalf of the respondents, on the other hand, would submit that having regard the purpose and object
, the said Act seeks to achieve, there cannot be any doubt whatsoever that the Parliament has the requisite legislative competence. By reason of the provisions of the Amending Act 28 of 1986, trade in various articles had been prohibited, Imported ivory was, however, brought within the purview of Act 44 of 1991. The learned counsel would contend that a bare perusal of the provisions of the 1986 and 1991 Amending Acts would clearly go to show that the intention of the Parliament was that those who carry on trade or business in the imported African ivory should dispose of the same within a period of six months i.e. before coming into force thereof whereafter their possession would become illegal, subject, however, to the grant of certificate of ownership by the Chief Wild Life Warden in terms of Sub-section (3) of Section 49C of the said Act. It was submitted that a trader cannot claim the entire imported ivory or the articles manufactured therefrom to be necessary for his bona fide personal use and in that view of the matter the Chief Wild Life Warden has been conferred with a discretionary jurisdiction in relation thereto and only such articles in respect whereof the certificate of ownership is issued, can be subject matter of the transfer in terms of Sub-section (6) of Section 49C of the Act. Any article in respect whereof no certificate of ownership has been granted, would fall within the mischief of Sub-section (7) of Section 49C. Such a provision, it was urged, must be held to be reasonable as a trader was given sufficient time to dispose of all the articles in his possession.

12. Drawing our attention to the provisions of the Wild Life (Protection) Act, 1972, Mr. Malhotra would submit that the trade and possession of ivory having been totally prohibited. Even non-traders are not entitled to possess the same in terms of Section 40(2A) of the Act. The learned counsel would further submit that it would not be correct to contend that legislative policy has changed in India inasmuch from the minutes of meeting of CITES, it would appear that India and Kenya differed with the proposal of five African countries

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