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CASE NO.: Appeal (civil)  7533 of 1997

PETITIONER: Indian Handicrafts Emporium & Ors.                       

RESPONDENT: Vs. Union of India & Ors.                                    

DATE OF JUDGMENT: 27/08/2003

BENCH: CJI, Y.K. Sabharwal & S.B. Sinha.

JUDGMENT: J U D G M E N T

W I T H                         CIVIL APPEAL NOS.7534, 7535/1997        AND W.P. (C) No. 35/2003                          ......

S.B. SINHA, J :

INTRODUCTORY REMARKS:

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 in dispute that the said import had legally been made  as there did not exist any restriction in that regard.

 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.   

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 49-C 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.  

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

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dispose of the imported ivory held in stock by them even during the  said period.   

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

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.  

It was urged that even assuming that 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 Another vs. State of Andhra Pradesh and Others  [(1984) 1 SCC 222],  Rattan Arya and Others vs. State of Tamil Nadu and  Another [(1986) 3 SCC 385] and Synthetics and Chemicals Ltd. and Others  vs. State of U.P. and Others [(1990) 1 SCC 109].  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 Another vs. Union of India and  Others [(1960) 2 SCR 671].             

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 49-C thereof.  It was urged that once such a  declaration is filed in terms of sub-section  (1) of Section 49-C, 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 be ultra vires  Article 300A   of the Constitution.  Sub-section (7)of Section 49-C, Mr. Sanghi would  submit, must be construed so as to uphold the right of property of the

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appellants in the property as otherwise the same would be rendered  unconstitutional.

According to the learned counsel, the Parliament  amended the Act   by way of Act 16 of 2003, in terms 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 respondents 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 unbriddled 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 vs. Union of India [(1970) 3 SCR 530].

       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:

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 49-C 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 49-C 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 49-C.  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.        

Drawing our attention to the provision 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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that they be permitted to trade in ivory for any purpose whatsoever.   Our attention was further drawn to the fact that ivory still is in  Appendix-I so far as India is concerned.      

STATUTORY PROVISIONS:

       The said Act was enacted to provide for the protection of wild  animals, birds and plants and for matters connected therewith or  ancillary thereto or incidental therewith.  Section 2 thereof contains  the interpretative provisions.  Some of the relevant provisions are :    

2. Definitions.--In this Act, unless the  context otherwise requires,--  [(1) "animal" includes mammals, birds,  reptiles, amphibians, fish, other chordates and  invertebrates and also includes their young and  eggs;]  (2) "animal article" means an article made  from any captive animal or wild animal, other  than vermin, and includes an article or object  in which the whole or any part of such animal  [has been used, and ivory imported into India  and an article made therefrom];  (11) "dealer" in relation to any captive  animal, animal article, trophy, uncured trophy,  meat or specified plant, means a person, who  carries on the business of buying or selling  any such animal or article, and includes a  person who undertakes business in any single  transaction;  (14) "Government property" means any property  referred to in section 39; [or section 17H;] (36)    "wild animal" means any animal specified in  Schedules I to IV and found wild in nature;"

       Chapter V of the Act deals with trade or commerce in wild  animals, animal articles and trophies.   

Section 39(1)(c) occurring in Chapter V of the said Act provides  that every ivory imported into India and an article made from such  ivory in respect of which any offence against this Act or any rule or  order made there-under has been committed, shall be the property of the  State Government.

Section 40 provides for declaration.  Sub-section (1) whereof is   in the following terms :  40. Declarations.--(1) Every person having at  the commencement of this Act the control,  custody or possession of any captive animal  specified in Schedule I or Part II of Schedule  II, [or animal article, trophy or uncured  trophy] derived from such animal or salted or  dried skins of such animal or the musk of a  musk deer or the horn of a rhinoceros, shall,  within thirty days from the commencement of  this Act, declare to the Chief Wild Life Warden  or the authorised officer the number and  description of the animal, or article of the  foregoing description under his control,  custody or possession and the place where such  animal or article is kept".

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Sub-section (2) of Section 40 prohibits acquisition, receiving,  keeping in his control, custody or possession, sell, offer for sale or  otherwise transfer or transport any animals specified in Schedule I or  Part II of Schedule II and allied things by any person whatsoever.    Sub-sections (2A) and (2B) which have been inserted by Act 16 of 2003  read thus :

"(2A) No person other than a person having a  certificate of ownership, shall, after the  commencement of the Wild Life (Protection)  Amendment Act, 2002 acquire, receive, keep in  his control, custody or possession any captive  animal, animal article, trophy or uncured  trophy specified in Schedule I or Part II of  Schedule II, except by way of inheritance.  (2B) Every person inheriting any captive  animal, animal article, trophy or uncured  trophy under sub-section (2A) shall, within  ninety days of such inheritance make a  declaration to the Chief Wild Life Warden or  the authorised officer and the provisions of  sections 41 and 42 shall apply as if the  declaration had been made under sub-section (1)  of section 40:  Provided that nothing in sub-sections (2A) and  (2B) shall apply to the live elephant.]  (3) Nothing in sub-section (1) or sub-section  (2) shall apply to a recognised zoo subject to  the provisions of section 381 or to a public  museum. (4) The State Government may, by notification,  require any person to declare to the Chief Wild  Life Warden or the authorised officer [any  animal or animal article] or trophy (other than  a musk of a musk deer or horn of a rhinoceros)  or salted or dried skins derived from an animal  specified in Schedule I or Part II of Schedule  II in his control, custody or possession in  such form, in such manner, and within such  time, as may be prescribed."     

Section 40A provides for immunity in certain cases which is in  the following terms :         "40A. Immunity in certain cases.- (1)  Notwithstanding anything contained in sub-sections  (2) and (4) of section 40 of this Act, the Central  Government may, by notification, require any person  to declare to the Chief Wild Life Warden or the  authorised officer, any captive animal, animal  article, trophy or uncured trophy derived from  animals specified in Schedule I or Part II of  Schedule II in his control, custody or possession, in  respect of which no declaration had been made under  sub-section (1) or sub-section (4) of section 40, in  such form, in such manner and within such time as may  be prescribed.

(2) Any action taken or purported to be taken  for violation of section 40 of this Act at any time  before the commencement of the Wild Life (Protection)  Amendment Act, 2002 shall not be proceeded with and  all pending proceedings shall stand abated.

(3)  Any captive animal, animal article, trophy

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or uncured trophy declared under sub-section (1)  shall be dealt with in such manner and subject to  such conditions as may be prescribed."                     Section 41 deals with inquiry and preparation of inventories  which is in the following terms : 41. Inquiry and preparation of inventories.-- (1) On receipt of a declaration made under  section 40, the Chief Wild Life Warden or the  authorised officer may, after such notice, in  such manner and at such time, as may be  prescribed,--  (a) enter upon the premises of a person  referred to in section 40;  (b) make inquiries and prepare inventories of  animal articles, trophies, uncured trophies,  salted and dried skins and captive animals  specified in Schedule I and Part II of Schedule  II and found        thereon; and  (c) affix upon the animals, animal articles,  trophies or uncured trophies identification  marks in such manner as may be prescribed. (2) No person shall obliterate or counterfeit  any identification mark referred to in this  Chapter.            

               Chapter V-A was brought into the statute book by Act No.28  of 1986.  "Scheduled animal"  has been defined in clause (a) of Section  49-A in the following terms :

"(a) ’scheduled animal’ means an animal  specified for the time being in Schedule I or  Part II of Schedule II;"

                Clause (c) of Section 49-A defines ’specified date’ which in  relation to ivory imported into India or an article made therefrom  would mean the date of expiry of six months from the commencement  of  Wild Life (Protection) Amendment Act, 1991.  The said provision was  inserted by Act No. 44 of 1991.

       Section 49-B provides that subject to the other provisions of the  said Section, on and after the specified date, no person shall commence  or carry on the business as a manufacturer  of, or dealer in, scheduled  animal article, or a dealer in ivory imported into India or articles  made therefrom or a manufacturer of such articles.

       Section 49-C of the said Act  reads as under :          "49-C. Declaration by dealers. - (1) Every  person carrying on the business or occupation  referred to in sub-section (1) of Section 49-B  shall, within thirty days from the specified  date, declare to the Chief Wild Life Warden or  the authorised officer, -

(a)     his stocks, if any, as at the end of  the specified date of -

(i) scheduled animal articles; (ii) scheduled animals and parts thereof;    (iii) trophies and uncured trophies derived  from    scheduled animals;

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(iv) captive animals, being scheduled  animals; (v) ivory imported into India or articles  made therefrom;

(b)the place or places at which the  stocks mentioned in the declaration  are kept; and

(c)the description of such items, if any,  of the stocks mentioned in the  declaration which he desires to retain  with himself for his bona fide  personal use.

(2)  On receipt of a declaration under sub- section (1), the Chief Wild Life Warden or the  authorised officer may take all or any of the  measures specified in Section 41 and for this  purpose, the provisions of Section 41 shall, so  far as may be, apply.

(3) Where, in a declaration made under sub- section (1), the person making the declaration  expresses his desire to retain with himself any  of the items of the stocks specified in the  declaration for his bona fide personal use, the  Chief Wild Life Warden, with the prior approval  of the Director, may, if he is satisfied that  the person is in lawful possession of such  items, issue certificates of ownership in  favour of such person with respect to all, or  as the case may be, such of the items as in the  opinion of the Chief Wild Life Warden, are  required for the bona fide personal use of such  person and affix upon such items identification  marks in such manner as may be prescribed :

Provided that no such items shall be kept in  any commercial premises.   (4) No person shall obliterate or counterfeit  any identification mark referred to in sub- section (3).

(5) An appeal shall lie against any refusal to  grant certificate of ownership under sub- section (3) and the provisions of sub-sections  (2), (3) and (4) of Section 46 shall, so far as  may be, apply in relation to appeals under this  sub-section.

(6)Where a person who has been issued a  certificate of ownership under sub-section (3)  in respect of any item, -

(a)     transfers such items to any person,  whether by way of gift, sale or  otherwise, or

(b)     transfers or transports from the  State in which he resides to another  State any such item,

he shall, within thirty days of such transfer

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or transport, report the transfer or transport  to the Chief Wild Life Warden or the authorised  officer within whose jurisdiction the transfer  or transport is effected.

(7) No person, other than a person who has been  issued a certificate of ownership under sub- section (3) shall, on and after the specified  date, keep under his control, sell or offer for  sale or transfer to any person any scheduled  animal, or a scheduled animal article or ivory  imported into India or any article made  therefrom."     

Section 50 deals with power of entry, search, arrest and  detention.   

Section 51 deals with penalties. The relevant portion of Section  51 is as follows : 51. Penalties.--(1) Any person who [contravenes  any provision of this Act [(except Chapter VA  and section 38J)]] or any rule or order made  thereunder or who commits a breach of any of  the conditions of any licence or permit granted  under this Act, shall be guilty of an offence  against this Act, and shall, on conviction, be  punishable with imprisonment for a term which  may extend to [three years] or with fine which  may extend to [twenty-five thousand rupees] or  with both: Provided that where the offence committed is in  relation to any animal specified in Schedule I  or Part II of Schedule II or meat of any such  animal or animal article, trophy or uncured  trophy derived from such animal or where the  offence relates to hunting in a sanctuary or a  National Park or altering the boundaries of a  sanctuary or a National Park, such offence  shall be punishable with imprisonment for a  term which shall not be less than three years  but may extend to seven years and also with  fine which shall not be less than ten thousand  rupees: Provided further that in the case of a second  or subsequent offence of the nature mentioned  in this sub-section, the term of the  imprisonment shall not be less than three years  but may extend to seven years and also with  fine which shall not be less than twenty-five  thousand rupees. (1A) Any person who contravenes any provisions  of Chapter VA, shall be punishable with  imprisonment for a term which shall not be less  than [three years] but which may extend to  seven years and also with fine which shall not  be less than [ten thousand rupees].]  (1B) Any person who contravenes the provisions  of section 38J shall be punishable with  imprisonment for a term which may extend to six  months, or with fine which may extend to two  thousand rupees, or with both: Provided that in the case of a second or  subsequent offence the term of imprisonment may  extend to one year, or with fine which may  extend to five thousand rupees.

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       Section 63 empowers the Central Government to makes rules.    INTERPRETATION OF THE ACT:

        The provisions of the said Act must be construed having regard  to the purport and object it seeks to achieve.  Not only inter alia  wild animal is to be protected but all other steps which are necessary  therefor so as to ensure ecological and environmental security of the  country must be enforced.  The interpretation provisions as regard  ’wild animal’ employs the word ’includes’ and, thus, must be assigned a  broad meaning.  The Amending Acts must be viewed in that perspective.   Protection and conservation of wild animal is essential for very  existence of human life.  A trade in wild animal which is sought to be  prohibited with an object to oversee survival of human beings must be  given its full effect.  The CITES was formulated keeping in view the  aforementioned policy.  India is a member State of the Convention.  It  is a signatory to the other treaties and conventions in this behalf.   Appendix I of CITES which came into effect from 18th January, 1990  provided for complete prohibition of internal and trans border trade in  ivory.  The Parliament enacted the Amendment Act (Act No. 44 of 1991)  with a view to save the species of Indian Elephant and to give effect  to the said international treaties.  Prior thereto, that is 1989, the  African Elephant was proposed to be brought in Appendix I of CITES.   

       In the Press Release of October, 2002, the following appears:

"Another high-profile item is the African  elephant.  After an eight-year ban on ivory  sales, in 1997 CITES agreed to allow three  African countries - Botswana, Namibia and  Zimbabwe - to make one time sales from their  existing legal stocks of raw ivory.  The ivory  - which weighed 49,574 kg. and represented  5,446 tusks - was sold to Japan in 1999 and  earned some USD5 million.  The funds were used  for elephant conservation activities in the  three range states.   

In the year 2002, the three countries plus  South Africa and Zambia are proposing one-off  sales of existing ivory stocks to be followed  later by annual quotas.  The proposals are for  a first sale of 20,000 kg. and an annual quota  of 4,000 kg. for Botswana, 10,000 Kg. and 2,000  kg. respectively for Namibia, 30,000 kg. and  2,000 kg. for South Africa and 10,000 kg. and  5,000 kg. for Zimbabwe.  Zambia is proposing a  one-off sale of 17,000 kg.  A proposal from  India and Kenya, on the other hand, argues that  further ivory sales from African elephants  should be clearly prohibited as a precautionary  measure for reducing future threats to the  elephant.

Meanwhile, Japan is seeking to open up trade in  most northern hemisphere populations of minke  whale and a Pacific population of Bryde’s  whale.  Its proposals stress the use of  national legislation and DNA identification of  individual whales to monitor catches and trade.   Similar proposals were presented without  success at the most recent CITES conferences in  1997 and 2000.  This year’s debate is likely to  involve issues related to science, sustainable

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use, possible enforcement problems, and the  international Whaling Commission’s moratorium  on commercial whaling."   

       Further, in the Press Release of 12th November, 2002, the  following appears:

"CITES has conditionally accepted proposals  from Botswana, Namibia and South Africa that  they be allowed to made one - off sales of 20,  10 and 30 tonnes, respectively, of ivory.  The  ivory is held in existing legal stocks that  have been collected from elephants that dies of  natural causes or as a result of government -  regulated problem - animal control.

Similar proposals from Zambia and Zimbabwe for  17 and 10 tonnes, respectively, were not  accepted.  Today’s decisions by CITES must  still be formally adopted by the full Plenary  on Friday, when the current two - week  conference ends."

       The rival contention as regard the interpretation and application  of the said Act must be considered having regard to the aforementioned  principles as also the international treaties and developments which  took place subsequently.          

WHETHER THE AMENDING ACT 44 OF 1991 IS ULTRA VIRES ARTICLES 19(1)(g)  AND 14 OF THE CONSTITUTION OF INDIA  

       Appellant No. 1 herein appeared to have imported ivory from 1971  to 1986.  It was in possession of 755.930 Kgs. Of solid Ivory Articles  and 10.050 Kgs. with metal.

       Dealing in imported ivory so long the law permits may be a  fundamental right but if the statute prohibits it, it must be held to  be a law within the meaning of Clause (6) of Article 19 of the  Constitution of India in terms whereof reasonable restriction is  imposed.  A trade which is dangerous to ecology may be regulated or  totally prohibited.  For the aforementioned purpose, regulation would  include prohibition.

       What would be a reasonable restriction which can be imposed in  public interest is a matter which is no longer res integra.

       In Narender Kumar and Others Vs. Union of India and Others [1960]  2 SCR 375, this Court while interpreting the word ’restrictions’ held  as follows:

"It is reasonable to think that the makers of  the Constitution considered the word  "restriction" to be sufficiently wide to save  laws "inconsistent" with Art. 19(1), or "taking  away the rights" conferred by the Article,  provided this inconsistency or taking away was  reasonable in the interests of the different  matters mentioned in the clause. There can be  no doubt therefore that they intended the word

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"restriction" to include cases of "prohibition"  also. The contention that a law prohibiting the  exercise of a fundamental right is in no case  saved, cannot therefore be accepted."

(See also State of Maharashtra Vs. Mumbai Upnagar Gramodyog Sang [1969]  2 SCR 392)

       In Synthetics and Chemicals Ltd. (supra), this Court held:

"76. Balsara case (1951 SCR 682 : AIR 1951 SC  318 : 52 Cri LJ 1361) dealt with the question  of reasonable restriction on medicinal and  toilet preparations. In fact, it can safely be  said that it impliedly and sub-silentio clearly  held that medicinal and toilet preparations  would not fall within the exclusive privilege  of the States. If they did there was no  question of striking down of Section 12(c) and  (d) and Section 13(b) of the Bombay Prohibition  Act, 1949 as unreasonable under Article  19(1)(f) of the Constitution because total  prohibition of the same would be permissible.  In K. K. Narula case (K. K. Narula v. State of  J & K, (1967) 3 SCR 50 : AIR 1967 SC 1368) it  was held that there was right to do business  even in potable liquor. It was not necessary to  say whether it is good law or not. But this  must be held that the reasoning therein would  apply with greater force to industrial  alcohol."

       In Ramana Dayaram Shetty Vs. The International Airport Authority  of India and Others [AIR 1979 SC 1628 : 1979 (3) SCR 1014], this Court  held:  

"...We fail to see how the plea of  contravention of Article 19(1)(g) or Article 14  can arise in these cases. The Government’s  power to sell the exclusive privilege set out  in Section 22 was not denied. It was also not  disputed that these privileges could be sold by  public auction. Public auctions are held to get  the best possible price. Once these aspects are  recognised, there appears to be no basis for  contending that the owner of the privileges in  question who had offered to sell them cannot  decline to accept the highest bid if he thinks  that the price offered is inadequate.  It will be seen from these observations that  the validity of clause (6) of the Order dated  January 6, 1971 was upheld by this Court on the  ground that having regard to the object of  holding the auction, namely, to raise revenue,  the Government was entitled to reject even the  highest bid, if it thought that the price  offered was inadequate. The Government was  bound to accept the tender of the person who  offered the highest amount and if the  Government rejected all the bids made at the  auction, it did not involve any violation of  Article 14 of 19(1)(g). This is a self-evident  proposition and we do not see how it can be of

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any assistance to the respondents."

       In Har Shankar and Others Vs. Dy. Excise and Taxation  Commissioner [AIR 1975 SC 1121 : (1975) 3 SCR 254], this Court held:  

"...The state, under its regulatory powers, has  the right to prohibit absolutely every form of  activity in relation to intoxicants - its  manufacture, storage, export, import, sale and  possession. In all their manifestations, these  rights are vested in the State and indeed  without such vesting there can be no effective  regulation of various forms of activities in  relation to intoxicants. In American  Jurisprudence", Volume 30 it is stated that  while engaging in liquor traffic is not  inherently unlawful, nevertheless it is a  privilege and not a right, subject to  governmental control (page 538). This power of  control is an incident of the society’s right  to self-protection and it rests upon the right  of the state to care for the health, morals and  welfare of the people. Liquor traffic is a  source of pauperism and crime (pp. 539, 540,  541)."  

       In order to determine whether total prohibition would be  reasonable the Court has to balance the direct impact on the  fundamental right of the citizens thereby against the greater public or  social interest sought to be ensured.  Implementation of Directive  Principles contained in Part IV is within the expression of  restrictions in the interest of the general public.

       In Municipal Corporation of the City of Ahmedabad and Others Vs.  Jan Mohammed Usmanbhai and Another [AIR 1986 SC 1205 : (1986) 2 SCR  700], this court held:

"15. Before proceeding to deal with the points  urged on behalf of the appellants it will be  appropriate to refer to the well-established  principles in the construction of the  constitutional provisions. When the validity of  a law placing restriction on the exercise of a  fundamental right in Article 19(1)(g) is  challenged, the onus of proving to the  satisfaction of the court that the restriction  is reasonable lies upon the State. If the law  requires that an act which is inherently  dangerous, noxious or injurious to the public  interest, health or safety or is likely to  prove a nuisance to the community shall be done  under a permit or a licence of an executive  authority, it is not per se unreasonable and no  person may claim a licence or a permit to do  that act as of right. Where the law providing  for grant of a licence or permit confers a  discretion upon an administrative authority  regulated by rules or principles, express or  implied, and exercisable in consonance with the  rules of natural justice, it will be presumed  to impose a reasonable restriction. Where,  however, power is entrusted to an  administrative agency to grant or withhold a  permit or licence in its uncontrolled  discretion the law ex facie infringes the

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fundamental right under Article 19(1)(g).  Imposition of restriction on the exercise of a  fundamental right may be in the form of control  or prohibition.  

"20. The tests of reasonableness have to be  viewed in the context of the issues which faced  the legislature. In the construction of such  laws and in judging their validity, courts must  approach the problem from the point of view of  furthering the social interest which it is the  purpose of the legislation to promote. They are  not in these matters functioning in vacuo but  as part of society which is trying, by the  enacted law, to solve its problems and  furthering the moral and material progress of  the community as a whole. (See Jyoti Prasad v.  Union Territory of Delhi ((1962) 2 SCR 125 :  AIR 1961 SC 1602). If the expression ’in the  interest of general public’ is of wide import  comprising public order, public security and  public morals, it cannot be said that the  standing orders closing the slaughter houses on  seven days is not in the interest of general  public."

       The primal object for which dealing in ivory imported from Africa  had been prohibited was to see that while holding the stock, the people  may not deal in Indian ivory which may be procured from illegal  killings of Indian Elephant.  The Amending Act indirectly seeks to  protect Indian Elephant and to arrest their further depletion.

       It may be necessary to go into the history of legislation leading  to enactment of the said Act for the purpose of undertaking how small  restrictions were replaced by and by with bigger ones and ultimately to  a total prohibition.  We may notice that the first legislation for  protection of birds was enacted in 1887 known as the Wild Birds  Protection act, 1887 (Act No. X of 1887) which was followed by the Wild  Birds and Animals (Protection) Act, 1912.  As the object sought to be  achieved by the said Acts was not fulfilled, the same was amended in  the year 1935 in terms of which the Provincial Government could declare  any area to be a sanctuary for the birds or animals and their killing  was made unlawful.  As wild life was a State subject of legislation, in  the year 1972 several States adopted resolutions in terms of Article  252 of the Constitution of India empowering the Parliament to pass the  necessary legislation.

       The provisions contained in the 1972 Act were found to be  inadequate necessitating extensive amendment.  One of the Objects and  Reasons for the said Act was to see that the wild animals or articles  and derivates thereof may not be smuggled out to meet the demand in  foreign markets as there is hardly any market within the country  therefor.  A clandestine trade abetted by illegal practices of poaching  which had taken a heavy toll of our wild animals and birds were sought  to be restrained.  It was pointed out that the stocks declared by the  traders at the commencement of the Wild Life (Protection) Act, 1972 are  used as a cover for such illegal trade.

       The Parliament in its wisdom thought to amend the said Act  further in the year 1991 in terms whereof the following changes were  made:

"(i)    It substituted new section for sections  9, 29 and 55 of the Principal Act;

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(ii)    It omitted sections 10, and 13 to 17 of  the Principal Act; (iii) It inserted two new chapters, namely,  Chapter IIIA and Chapter IVA, in the Principal  Act; and (iv)    It inserted new Schedule, namely,  Schedule VI, in the Principal Act."

       At this juncture, we may usefully take notice of the Statement of  Objects and Reasons of the said Act.

"Poaching of wild animals and illegal trade of  products derived therefrom, together with  degradation and depletion of habitats have  seriously affected wildlife population.  In  order to check this trend, it is proposed to  prohibit hunting of all wild animals (other  than vermin).  However, hunting of wild animals  in exceptional circumstances, particularly for  the purpose of protection of life and property  and for education, research, scientific  management and captive breeding, would  continue.  It is being made mandatory for every  transporter not to transport any wild life  products without proper permission.  The  penalties for various offences are proposed to  be suitably enhanced to make them deterrent.   The Central Government Officers as well as  individuals now can also file complaints in the  courts for offences under the Act.  It is also  proposed to provide for appointment of honorary  Wild Life Wardens and payment of rewards to  persons helping in apprehension of offenders.

To curb large scale mortalities in wild animals  due to communicable diseases, it is proposed to  make provisions for compulsory immunisation of  livestock in and around National Parks and  Sanctuaries.

It may be recalled that the Parties to the  "Convention on International Trade in  Endangered Species of Wild Fauna and  Flora"(CITES), being greatly concerned by the  decline in population of African elephant (sic)  the import and export of African ivory for  commercial purposes has been prohibited.  As a  result import of ivory would no longer be  possible to meet the requirements of the  domestic ivory trade.  If the lead to large  scale poaching of Indian elephants.  With this  point in view, the trade in African ivory  within the country is proposed to be banned  after giving due opportunity to ivory traders  to dispose off their existing stock."

       The Parliament while enacting the said Amending Act took note of  serious dimensions of poaching of wild animals and illegal trade giving  exponential rise of wild animals and their products.

       The Hon’ble Minister of State of the Ministry of Environment and  Forest in the House stated:

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"Population of Indian elephants, particularly  in South India, are under serious threat by  ivory poachers.  Although the trade in Indian  ivory was banned in 1986, the trade in imported  ivory gives 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 is proposed to  be banned after giving due opportunity to ivory  traders to dispose of their existing stocks."

       During pendency of these matters, as noticed hereinbefore, the  Parliament enacted the Wild Life (Protection) Amendment Act, 2002 (Act  No. 16 of 2003) which came into force with effect from 1st April, 2003.

       By reason of the Amending Act of 2003, the possession of an ivory  whether by a trader or a person is completely banned.

       There cannot be any doubt whatsoever that a law which was at one  point of time was constitutional may be rendered unconstitutional  because of passage of time.  We may note that apart from the decisions  cited by Mr. Sanghi, recently a similar view has been taken in Kapila  Hingorani Vs. State of Bihar [JT 2003 (5) SC 1] and John Vallamattom  and Anr. Vs. Union of India [JT 2003 (6) SC 37].

       In this case, however, we are faced with a different situation.   We are concerned with the reason and object for which the amendments  have to be made.  We must take into consideration the text and context  of the amending Acts and the circumstances in which they had to be  brought about.

       The provisions of the statute are also required to be considered  keeping in view Article 48-A and Article 51A(g) of the Constitution of  India which are in the following terms:

"48-A. Protection and improvement of  environment and safeguarding of forests and  wild life.-- The State shall endeavour to  protect and improve the environment and to  safeguard the forests and wild life of the  country."

"51-A. Fundamental duties. -- It shall be the  duty of every citizen of India --                                  ...     ...     ...     ...     ...     ...     ...

(g)     to protect and improve the natural  environment including forests, lakes, rivers  and wild life, and to have compassion for  living creatures;"

       We cannot shut our eyes to the statements made in Article 48-A of  the Constitution of India which enjoins upon the State to protect and  improve the environment and to safeguard the forests and wild life of  the country.  What is destructive of environment, forest and wild life,  thus, being contrary to the Directive Principles of the State Policy  which is fundamental in the governance of the country must be given its  full effect.  Similarly, the principles of Chapter IVA must also be  given its full effect.  Clause (g) of Article 51A requires every  citizen to protect and improve the natural environment including  forests, lakes, rivers and wild life and to have compassion for living  creatures.  The amendments have to be carried out keeping in view the

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aforementioned provisions.

       It is, therefore, difficult to accept the contention of Mr.  Sanghi that protection and preservation of wild life would not be in  public interest and/ or cannot be extended to imported ivory.  Wild  Life forms part of our cultural heritage.  Animals play a vital role in  maintaining ecological balance.  The amendments have been brought for  the purpose of saving the endangered species from extinction as also  for arresting depletion in their numbers caused by callous exploitation  thereof.

       In D.D. Basu’s Commentary on the Constitution of India (Sixth  Edition, Volume C) at page 45-46, the law has been summarized in the  following manner:

"It is now settled that no inflexible answer to  this question is possible, and that it is the  nature of the business or property which is an  important element in determining how far the  restriction may reasonably go:

(A) In the case of inherently dangerous or  noxious trades, such as production or trading  in liquors or cultivation of narcotic plants,  or trafficking in women, it would be a  ’reasonable restriction’ to prohibit the trade  or business altogether.

(B) Where the trade or business is not  inherently bad, as in the preceding cases, it  must be shown by placing materials before the  Court that prohibition of private enterprise in  the particular business was essential in the  interests of public welfare. Thus -

In order to prevent speculative dealings in  ’essential commodities’ (such as cotton),  during a period of emergency, the State may  impose a temporary prohibition of all normal  trading on such commodities.  In the later case  of Narendra Vs. Union of India (supra), the  Supreme Court has sustained even a permanent  law leading to the elimination of middle-men  from the business in essential commodities in  order to ensure the supply of such goods to the  consumers at a minimum price."

       The Amending Acts satisfy also the strict scrutiny test.

       The stand of the State that by reason of sale of ivory by the  dealers, poaching and killing of elephants would be encouraged, cannot  be said to be irrational.  Mr. Sanghi, as noticed hereinbefore, has  drawn our attention to the changes sought to be effected in CITES at  the instance of Botswana, South Africa, Namibia and Zimbabwe.  The  question as to whether a reasonable restriction would become  unreasonable and vice-versa would depend upon the fact situation  obtaining in each case.  In the year 1972 when the said Act was enacted  there might not have been any necessity to preserve the elephant as  also ivory.  The species might not have been on the brink of  extinction.  The Objects and Reasons set out for brining in amendments  in the said Acts in the years 1986, 1991 and 2003 clearly bring into  fore the necessity to take more and more stringent measures so as to  put checks on poaching and illegal trade in ivory.  Experience shows  that poaching may be difficult to be completely checked.  Preventive  measures as regard poaching leading to killing of elephants for the

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purpose of extraction of their tusks is a difficult task to achieve  and, thus, the Parliament must have thought it expedient to put a  complete ban in trade in ivory to meet the requirement of the country.

       India being a sovereign country is not obligated to make law only  in terms of CITES; it may impose stricter restrictions having regard to  local needs.

       In John Vallamattom and Anr. Vs. Union of India [JT 2003 (6) SC  37] this Court speaking through the Hon’ble Chief Justice of India  held:

"Furthermore, India being a signatory to the  Declaration on the Right to Development adopted  by the World Conference on Human Rights and  Article 18 of the United Nations Covenant on  Civil and Political Rights, 1966, the impugned  provision may be judged on the basis    thereof."   

       Referring to Article 1 of the Declaration on the Right to  Development and Article 18 of the United Nations Covenant on Civil and  Political Rights 1966, this Court following Kapila Hingorani Vs. State  of Bihar [JT 2003 (5) SC 1] observed that the provisions of law must be  judged keeping in view the international treaties and conventions  stating:

"It is trite that having regard to Article  13(1) of the Constitution, the  constitutionality of the impugned legislation  is required to be considered on the basis of  laws existing on 26th January, 1950, but while  doing so the court is not precluded from taking  into consideration the subsequent events which  have taken place thereafter.  It is further  trite that that the law although may be  constitutional when enacted but with passage of  time the same may be held to be  unconstitutional in view of the changed  situation.  

Justice Cardoze said :

"The law has its epochs of ebb and  flow, the flood tides are on us.   The old order may change yielding  place to new; but the transition is  never an easy process".

Albert Campus stated :

"The wheel turns, history changes".   Stability and change are the two  sides of the same law-coin.  In  their pure form they are  antagonistic poles; without  stability the law becomes not a  chart of conduct, but a gare of  chance: with only stability the law  is as the still waters in which  there is only stagnation and  death."           

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       Although in that case Section 118 of the Indian Succession Act  was declared unconstitutional but we are of opinion that legal  principles enunciated therein will have to be applied for the purpose  of judging the constitutionality of impugned provisions keeping in view  the subsequent changes.

       Submission of Mr. Sanghi to the effect that the Amending Acts  provide for arbitrary unguided and unbridled power is stated to be  rejected.  The submission of learned counsel was made on the premise  that after ban was imposed on trade in ivory, all traders become non- traders and, thus, traders and non-traders could not have been treated  differently.  When a trade is prohibited as has sought to be done by  reason of the 1991 Amendment Act by inserting Chapter VA, the matters  incidental thereto or connected therewith must be dealt with  accordingly.  For all intent and purport the statute would treat the  traders on a different footing than non-traders.  They form a different  and distinct class.

       The appellants used to trade in ivory stands admitted.  They,  thus, would come within the purview of the definition of the trader  also is undisputable.  The manner in which despite legal ban on trade a  person may not take recourse to illegal trading is a matter which  squarely falls within the purview of the legislative competence.  It is  now well-settled that the Parliament can not only enact a law for  avoidance or evasion of commission of an illegal trade but also may  make law to see that the law is not evaded by taking recourse to  machination or camouflage.  The loopholes, if any, in such matters can  and should be plugged.  "Means Affecting Means" principle as adumbrated  in United States Vs. Darby [312 US 100 (1941)] is an illustration on  the point.  Both substantial and procedural provisions can be made to  make a law in furtherance of the object for which the Act has been  enacted and to see that what is sought to be prohibited directly may  not be achieved by the traders indirectly.         For the purpose of Chapter VA the appellants remained traders  despite the fact that they have been prohibited from carrying on any  business.  How after imposing the ban, stock in trade is to be dealt  with is again a matter which can be dealt with by the Legislature.  It  has the requisite competence therefor.  Furthermore, it is now idle to  contend having regard to the provisions contained in Section 40(2A) of  the Act that the traders have been discriminated with vis-Ã -vis the  non-traders.  Traders are class by themselves and as such no question  of any discrimination arises.  The classification is well-defined and  well-perceptible.  Traders and non-traders constitute two different  classes and the classification is founded on an intelligible  differentia clearly distinguishing one from the other.

       A machinery must be so construed as to effectuate the liability  imposed by the charging section and to make the machinery workable - ut  res magis valeat quam pereat. (See D. Saibaba & Bar Council of India  and Anr. reported in JT 2003 (4) SC 435 and Welfare Assocn. A.R.P.  Maharashtra & Anr. Vs. Ranjit P. Gohil & Ors. reported in 2003 (2)  SCALE 288)

       Submission of Mr. Sanghi that the definition of wild animal is  vague cannot be accepted.  Hamdard Dawakhana (supra) whereupon Mr.  Sanghi has placed strong reliance is wholly mis-placed.  

       In Hamdard Dawakhana (supra) the ’magic remedy’ was held to be  incapable of giving a fixed meaning and, thus, was held ultra vires  Article 14 of the Constitution being vague in nature.  We do not find  any such vagueness in any of the provisions of the impugned Acts  including the definition of ’wild animal’.   It is clear and  unambiguous.

       Reliance placed by Mr. Sanghi on Rustom Cavasjee Cooper (supra)is

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equally mis-placed.  In that case, this Court was dealing with  nationalization of banks.  The Court held that the provisions impugned  therein are ultra-vires.  In that situation, it was held:

"Impairment of the right of the individual and  not the object of the State in taking the  impugned action, is the measure of protection.   To concentrate merely on power of the State and  the object of the State action in exercising  that power is therefore to ignore the true  intent of the Constitution."

       There is no quarrel with the aforementioned propositions inasmuch  as herein we are upholding vires of the statutes holding that the  restrictions imposed is reasonable.

       The Amending Acts in our opinion are constitutional, legal and  valid.

RES-EXTRA COMMERCIUM:

       We, however, agree with Mr. Sanghi that in a case of this nature  the doctrine of ’res extra commercium’ cannot be invoked.  When trade  in a particular commodity is governed by a statute, the same has to be  given its full effect.  Trade in ivory was permissible in law.  It was  restricted in 1986.  It has totally been prohibited in the year 1991.   The Amendment Act, 2003 brought about further changes in terms whereof  further restrictions have been imposed even on the private owners to  possess ivory or any other animal article.

       CITES banned trade in ivory but as regard some countries the ban  has been relaxed.  At least in five countries ivory has been placed in  Appendix II from Appendix I.  We do not know whether in a few years  from now having regard to increase in population of elephant, a  restricted trade in ivory would be permitted.  If that is permitted by  amending the said Act, the trade in ivory would be legal.

       The submission of the appellants, however, to the effect that the  elephant has been downlisted from Appendix I to Appendix II of CITES is  incorrect.  All international trade in elephants or articles thereof  including Asian elephants (Indian species) is prohibited as it  continues to be listed in Appendix I excepting for certain specified  African elephant populations of Botswana, Namibia, South Africa and  Zimbabwe which have now been listed in Appendix II.  This limited trade  has been allowed under very strict conditions as mentioned in the CITES  Appendix.  Further, India at the CITES Conference (2002) had seriously  opposed permitting of such limited trade and had even submitted a  proposal for a continuation of the ban on ivory trade.

       Education having regard to its nature was held to be beyond pale  of business or occupation within the meaning of Article 19(1)(g) of the  Constitution of India.

       In Unni Krishnan J.P. and Others Vs. State of Andhra Pradesh and  Others [(1993) 1 SCC 645], it was observed:

"198. We are, therefore, of the opinion,  adopting the line of reasoning in State of  Bombay v. R.M.D. Chamarbaugwala (1957 scr 874 :  air 1957 sc 699) that imparting education  cannot be treated as a trade or business.  Education cannot be allowed to be converted  into commerce nor can the petitioners seek to  obtain the said result by relying upon the

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wider meaning of "occupation". The content of  the expression "occupation" has to be  ascertained keeping in mind the fact that  clause (g) employs all the four expressions  viz., profession, occupation, trade and  business. Their fields may overlap, but each of  them does certainly have a content of its own,  distinct from the others. Be that as it may one  thing is clear - imparting of education is not  and cannot be allowed to become commerce. A  law, existing or future, ensuring against it  would be a valid measure within the meaning of  clause (6) of Article 19. We cannot, therefore,  agree with the contrary proposition enunciated  in Sakharkherda Education Society v. State of  Maharashtra (air 1968 Bom LR 690) Andhra Kesari  Education Society v. Govt. of A.P. (AIR 1984 AP  251 : (1984) 1 APLJ 45)and Bapuji Educational  Assn. v. State.(AIR 1986 Kant 80)"

       An 11-Judge Bench of this Court in T.M.A. Pai Foundation Vs.  State of Karnataka [(2002) 8 SCC 481], however, held that imparting of  education would come within the purview of the definition of occupation  within the meaning of Article 19(1)(g) of the Constitution of India.   This court following Sodan Singh Vs. New Delhi Municipal Committee  [(1989) 4 SCC 155] opined: "In Unni Krishnan’s case (Unni Krishnan, J.P.  v. State of A.P. (1993) 1 SCC 645 at p. 687)  while referring to education, it was observed  as follows :-  "It may perhaps fall under the category of  occupation provided no recognition is sought  from the State or affiliation from the  University is asked on the basis that it is a  fundamental right."  While the conclusion that "occupation"  comprehends the establishment of educational  institutions is correct, the proviso in the  aforesaid observation to the effect that this  is so provided no recognition is sought from  the state or affiliation from the concerned  university is, with the utmost respect,  erroneous. The fundamental right to establish  an educational institution cannot be confused  with the right to ask for recognition or  affiliation. The exercise of a fundamental  right may be controlled in a variety of ways.  For example, the right to carry on a business  does not entail the right to carry on a  business at a particular place. The right to  carry on a business may be subject to licensing  laws so that a denial of the licence prevents a  person from carrying on that particular  business. The question of whether there is a  fundamental right or not cannot be dependent  upon whether it can be made the subject-matter  of controls.  The establishment and running of an educational  institution where a large number of persons are  employed as teachers or administrative staff,  and an activity is carried on that results in  the imparting of knowledge to the students,  must necessarily be regarded as an occupation,  even if there is no element of profit  generation. It is difficult to comprehend that

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education, per se, will not fall under any of  the four expressions in Article 19(1)(g).  "Occupation" would be an activity of a person  undertaken as a means of livelihood or a  mission in life. The above quoted observations  in Sodan Singh case (Sodan Singh v. New Delhi  Municipal Committee, (1989) 4 SCC 155)  correctly interpret the expression "occupation"  in Article 19(1)(g)."  

       The said view has been reiterated recently by a Constitution  Bench in Islamic Academy of Education and Anr. Vs. State of Karnataka  and Ors. decided on 14th August, 2003 [JT 2003 (7) SC 1].

       The High Court has referred to the decision in P. Crowley Vs.  Henry Christensen [(1890) 34 Law. Ed. 620] so as to hold that a citizen  has no inherent right to sell intoxicating liquors.  Therein the U.S.  Supreme Court was dealing with a federal law imposing restrictions on a  person dealing in retail trade in liquor without obtaining a due  licence therefor.  The law was upheld negativing the contention that  the restriction was unreasonable.  It was not held therein that trade  of liquor is impermissible in all situations.  

       Restriction in trade, therefore, would depend upon the nature of  the article and the law governing the field.  By reason of judicial  vagaries, fundamental right under Article 19(1)(g) of the Constitution  cannot be further restricted.  (See Krishna Kumar Narula Vs. The State  of Jammu and Kashmir & Ors. AIR 1967 SC 1368).

       Dr. D.D. Basu in his Commentary on the Constitution of India  (Sixth Edition) Volume L at page 238 stated:

"In Chamarbaugwala’s case (supra) as well as in  Fatehchand’s case (AIR 1977 SC 1825), the Court  relied upon the observations of Taylor, J. in  Mansell’s case (1956) C.L.R. 550, in support of  the theory of res extra commercium, but as  appears from the following observations of  Wynes (1970), p. 263, the doctrine has not had  a peaceful career in Australia, and has  produced conflicting decisions which are not  beyond criticism:

"The question whether exceptions to the  otherwise express provisions of s.92  based upon inherent quality of goods can  be made has not been settled... Since the  Hughes case (1954) 93 C.L.R. 1 it is no  doubt true to say that a State may  legitimately regulate the incidents of  traffic in such cases, but this does not  derive from inherent quality, but from  the proposition that regulation can be  consistent with freedom..""

WHETHER THE APPELLANTS ARE ENTITLED TO POSSESS ANIMAL ARTICLES:

       A mere perusal of the definition of ’animal article’ in Section  2(2) of the Act would show that the imported ivory falls within it.  In  that view of the matter the question as to whether the African elephant  is a scheduled animal or not is irrelevant.  Dealing in trade in ivory  is prohibited under Chapter VA.  The appellants, therefore, being  traders in ivory would come within the purview of the prohibitions

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contained therein.  Once they come within the purview of the said  Chapter, they have to be dealt with accordingly.  If he has been a  trader, he must make a declaration in terms of Sub-Section (1) of  Section 49-C of the Act.  Chapter IV would not apply in his case.  The  said Chapter deals with the matters contained therein.  Traders in  ivory forming a different class have been dealt with in Chapter VA.   Doctrine of ’generalia specialibus non derogant’ would be applicable in  this case.  We would deal with this subject in details a little later.

       The contention of the appellants that it is covered by the newly  added provision Section 40-A or that the said section discriminates  individual owners and traders is ill-founded.

       At the time of passing of the main Wild Life Protection Act in  1972, there were two categories of persons who could be in possession  of animal articles, etc. namely (a) individual (non-traders) - who had  possession of animals articles for their own personal use and (b)  traders - who had possession of such articles for the purpose of sale.   Consequently, the 1972 Act requires individuals to declare and apply  for ownership certificates of the animal articles which were in their  possession.  And as regard the traders, Sections 44 to 48 and 49  mandated the traders to declare their stocks and to apply for a  licence.  Section 40-A has been incorporated solely for the purpose of  mitigating the omission of individual non-traders who due to lack of  information or ignorance could not declare the animal articles in their  possession within the limited period of 30 days from the commencement  of the 1972 Act as specified in Section 40 of the Act.  By reason  thereof another chance has been given to the non-traders to make a  declaration.  All the appellant traders on the other hand had  admittedly applied within the period of 30 days as specified in Section  44 of the Act.  Hence, the object and purpose of Section 40-A is  limited to individual non-traders and does not discriminate the traders  or inter se the traders.

       In any event after the incorporation of Chapter V-A and the  inclusion of ivory in the said Chapter the appellant traders are  governed by the provisions of Chapter V-A.  The provisions of Chapter V  which includes Section 40-A is not applicable to the appellant traders.   Chapter V-A is a complete Code in itself and it would be a fallacy to  read into or extend by implication the mitigating provision of Section  40-A into Chapter V-A.  The Legislature, had it so desired could have  incorporated a similar provision in Chapter V-A.

       Section 49-C provides that  every person carrying on the business  or occupation referred to in sub-section (1) of Section 49-B, within  thirty days from the specified date, declare to the Chief Wild Life  Warden or the authorised officer, his stocks, if any, as at the end of  the specified date of ivory imported into India or articles made  therefrom, the place or places at which the stocks mentioned in the  declaration are kept and the description of such items, if any, of the  stocks mentioned in the declaration which he desires to retain with  himself for his bona fide personal use.  Sub-section (3) of Section 49- C further provides that where, in a declaration made under sub-section  (1), the person making the declaration expresses his desire to retain  with himself any of the items of the stocks specified in the  declaration for his bona fide personal use, the Chief Wild Life Warden,  with the prior approval of the Director, may, if he is satisfied that  the person is in lawful possession of such items, issue certificate of  ownership in favour of such person with respect to all, or as the case  may be, such of the items as in the opinion of the Chief Wild Life  Warden, are required for the bona fide personal use of such person and  affix upon such items identification marks in such manner, as may be  prescribed.  Sub-section (6) of Section 49-C further provides that  where a person who has been issued a certificate of ownership under  sub-section (3) in respect of any item, it is permissible for him to

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transfer any such item to any such person, whether by way of gift, sale  or otherwise, or transfer or transport from the State in which he  resides to another State any such item and he shall within thirty days  from such transfer or transport, report the transfer or transport to  the Chief Wild Life Warden or the authorised officer within whose  jurisdiction the transfer or transport is effected.

       On coming into force of Act No.28 of 1986 or Act No.44 of 1991,  however, it may be true that the property does not automatically vest  in the Government.  It is not in dispute that in terms of clause (c) of  Section 39 of the Act which was inserted by Act No.44 of 1991 only  ivory imported into India and articles made from such ivory in respect  of which any offence against this Act or any rule or order made  thereunder has been committed, would be the property of the State  Government and not otherwise. But the issue is required to be  considered from a different angle.           On or from the specified date, however,  carrying on any trade or  commerce, inter alia, in relation to ivory imported into India or any  article made therefrom is completely prohibited.  Despite such  provision, however, a person carrying on a business or occupation or   dealing in trophies, animal articles etc. derived from scheduled  animals would be, in terms of sub-section (1) of Section 49-C of the  Act, entitled to file a declaration disclosing his stocks  of  ivory  imported into India or articles made therefrom.  Once such a  declaration is made and in the event such person makes a declaration  expressing his desire to retain with himself any of the items specified  therein for his bona fide use, a certificate of ownership may be  granted for such item or items which in the opinion of the Chief Wild  Life Warden are required therefor.  Only in relation to items for which  such certificate of ownership has been granted, a transfer thereof is  permissible subject to the restrictions imposed under sub-section (6)  of Section 49-C.  Sub-section (7) of Section 49-C, however, provides  for  prohibition of such ivory imported into India or any article made  therefrom from being kept under the control of the trader for sale or  offer for sale or transfer to any person whatsoever.

       The upshot of the aforesaid provisions is that any trader who has  imported ivory legally into India prior to coming into force of the Act  No.44 of 1991, although would not be entitled to carry on any business  or trade in respect thereof, but having regard to the provisions  referred to hereinbefore, unless he commits an offence in relation  thereto, the same would not vest in the Government.   He would,   however, not be entitled to keep possession thereof except in the mode  and manner provided for in Section 49-C of the Act.

       On a conjoint reading of the aforesaid provisions, there cannot  be any doubt whatsoever that any person who has obtained such a  certificate under sub-section (3) of Section 49-C only may keep  possession of the property i.e. subject to grant of ownership  certificate.  In the event he complies with the aforesaid provisions,  he would be entitled to transfer or transport such item as provided for  in sub-section (6) of Section 49-C.  There cannot further be any doubt  that in the event no certificate of ownership is granted in favour of a  trader in terms of sub-section (3) of Section 49-C, the question of his  becoming entitled to transfer or transport the property would not  arise, in which event, in terms of  sub-section (7) of Section 49-C, he  would be disentitled not only from selling or offering for sale or  transfer the said items but also from keeping the said items under his  control.

       The statutory provisions, in our opinion, are absolutely clear

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and unambiguous.

       The submission of Mr. Sanghi to the effect that the Chief Wild  Life Warden has been conferred with an unguided power to declare any  item as being capable of bona fide personal use of a  trader cannot be  accepted. Not only in terms of the provisions of the said Act, a trade  or commerce, inter alia, in relation to ivory has been prohibited,  having regard to the proviso appended to sub-section (3) of Section 49- C, even such item cannot be kept for display in any commercial  premises.  As such ivory or any article made therefrom can neither be  subject matter of trade or commerce nor displayed in any commercial  premises for any reason whatsoever.  By reason of the provisions of the  said Act, the trader was given six months’ time to dispose  of the  articles in his possession.  No foundational fact has been laid before  the High Court nor any contention has been raised before us that the  period specified therein under the Act was not reasonable. Articles  which cannot be subject matter of trade or commerce can only be kept  for personal use.  Such personal use must be a bona fide one.  Once the  requirement for keeping the possession of such article by a trader had  specifically been laid down, it cannot be said that the Chief Wild Life  Warden had been conferred  with unguided and uncanalized power.  In the  event, an order is passed, the person dissatisfied therewith, may  prefer an appeal in terms of sub-section (5) thereof.                    Against such original orders or appellate orders, even a judicial  review would be maintainable.

       Sub-section (7) of Section 49-C would be applicable only in  relation to such items or articles wherefor certificate of ownership  has not been granted.  If a person keeps under his control, sells or  offers for sale or transfers the same to any other person, he would be  subject to a penalty as provided under sub-section (1-A) of Section 51  of the Act.   

       Sub-section (2) of Section 51 empowers the competent court to  direct that such property be forfeited by the Government, in which  event, clause (c) of Section 39 would be attracted.  We, therefore, do  not find that the provisions of the said Act are anomalous in nature.   It is true, as has been pointed out by Mr. Sanghi, that the respondents  made a statement before the High Court that the property in possession  of the appellants did not vest in the Government but such a statement  was made evidently having regard to the provisions of clause (c) of  Section 39 of the Act read with sub-section (2) of Section 59 thereof.   Such property would vest in the Government subject to an order of  forfeiture and subject to an order of conviction and sentence against  the offender for violation of sub-section (7) of Section 49-C is  recorded.  We, in view of the provisions of the said Act, therefore,  must hold that not only trade or occupation in relation to ivory in  question is prohibited but possession or any transfer thereof in any  manner whatsoever is prohibited under the Act subject, however, to the  provisions of sub-sections (1), (3) and (6) of Section 49-C of the Act.            

       The legislature has deliberately used the words ’bonafide  personal use’ in Section 49-C and has placed the onus on the traders to  prove the same so as to be entitled to retain the articles out of the  stocks decalred by it.  This requirement is due to the fact that the  acquisition of an animal article by an individual non-trader at the  time of purchase would be presumed to be one for his own personal  bonafide use while on the other hand in the case of the traders the  acquisition of animal articles as reflected in the stocks of a trader  would be solely be for the purpose of sale.  Hence, the imposition of  the requirement of personal bonafide use in the case of traders cannot  be said to be discriminatory or arbitrary or irrational or perverse  entitling the Appellants to continue to have control thereover.

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WHETHER THE IVORY VESTS IN THE GOVERNMENT?

       We, however, do not agree with the contention of Mr. Malhotra  that having regard to the fact that appellants have admittedly been  found to be in possession of animal article, they have committed an  offence and as such they would come within the purview of Section  39(a)(i) of the Act as a result whereof the same could vest in the  State.

       The question as to whether an offence under the Act has been  committed or not at that stage cannot be determined.    Such a  determination furthermore cannot be left for adjudication at the hands  of the executive authority.  As and when a seizure is made and the  trader is prosecuted for alleged commission of an offence having regard  to sub-section 7 of Section 49-C of the Act; adjudication therefor must  be made by a competent court of law having jurisdiction in this behalf.   Before a person is convicted a Court has to arrive at the finding that  the accused has committed an offence wherefor a full-fledged criminal  trial would be necessary.  In absence of such criminal trial and  offence having been found committed, Section 39 may not have any  application.  In that view of the matter it is evident that the  properties do not stand vested in the Government in terms thereof.   

HOW THE DICHOTOMY SHOULD BE RESOLVED?

       The question, however, would remain as to what would happen to  the property in question.  In our opinion, the answer must be found out  by reading all the provisions in their entirety.

       It is now well-settled that for the purpose of interpretation of  statute the entire statute is to be read in entirety.  The purport and  object of the Act must be given its full effect.

       Furthermore, in a case of this nature, principles of purposive  construction must come into play.

       In Chief Justice of A.P. Vs. L.V.A. Dikshitulu [AIR 1979 SC 193 :  (1979) 2 SCC 34], this Court observed: "The primary principle of interpretation is  that a Constitutional or statutory provision  should be construed "according to the intent of  they that made it" (Coke). Normally, such  intent is gathered from the language of the  provision. If the language or the phraseology  employed by the legislation is precise and  plain and thus by itself proclaims the  legislative intent in unequivocal terms, the  same must be given effect to, regardless of the  consequences that may follow. But if the words  used in the provision are imprecise, protean or  evocative or can reasonably bear meanings more  than one, the rule of strict grammatical  construction ceases to be a sure guide to reach  at the real legislative intent. In such a case,  in order to ascertain the true meaning of the  terms and phrases employed, it is legitimate  for the Court to go beyond the arid literal  confines of the provision and to call in aid  other well-recognised rules of construction,  such as its legislative history, the basic  scheme and framework of the statute as a whole,

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each portion throwing light, on the rest, the  purpose of the legislation, the object sought  to be achieved, and the consequences that may  flow from the adoption of one in preference to  the other possible interpretation.  

       In Kehar Singh Vs. State (Delhi Admn.) [AIR 1988 SC 1883 : (1988)  3 SCC 609], this Court held: "During the last several years, the ’golden  rule’ has been given a go-by. We now look for  the "intention" of the legislature or the  ’purpose’ of the statute. First, we examine the  words of the statute. If the words are precise  and cover the situation on hand, we do not go  further. We expound those words in the natural  and ordinary sense of the words. But, if the  words are ambiguous, uncertain or any doubt  arises as to the terms employed, we deem it as  our paramount duty to put upon the language of  the legislature rational meaning. We then  examine every word, every section and every  provision. We examine the Act as a whole. We  examine the necessity which gave rise to the  Act. We look at the mischiefs which the  legislature intended to redress. We look at the  whole situation and not just one-to-one  relation. We will not consider any provision  out of the framework of the statute. We will  not view the provisions as abstract principles  separated from the motive force behind. We will  consider the provisions in the circumstances to  which they owe their origin. We will consider  the provisions to ensure coherence and  consistency within the law as a whole and to  avoid undesirable consequences."

       In District Mining Officer Vs. Tata Iron & Steel Co. [JT 2001 (6)  SC 183 : (2001) 7 SCC 358], this Court stated:

"A statute is an edict of the legislature and  in construing a statute, it is necessary, to  seek the intention of its maker. A statute has  to be construed according to the intent of them  that make it and the duty of the court is to  act upon the true intention of the legislature.  If a statutory provision is open to more than  one interpretation, the court has to choose  that interpretation which represents the true  intention of the legislature. This task very  often raises difficulties because of various  reasons, inasmuch as the words used may not be  scientific symbols having any precise or  definite meaning and the language may be an  imperfect medium to convey one’s thought or  that the assembly of legislatures consisting of  persons of various shades of opinion purport to  convey a meaning which may be obscure. It is  impossible even for the most imaginative  legislature to forestall exhaustively  situations and circumstances that may emerge  after enacting a statute where its application  may be called for. Nonetheless, the function of  the courts is only to expound and not to  legislate. Legislation in a modern State is  actuated with some policy to curb some public

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evil or to effectuate some public benefit. The  legislation is primarily directed to the  problems before the legislature based on  information derived from past and present  experience. It may also be designed by use of  general words to cover similar problems arising  in future. But, from the very nature of things,  it is impossible to anticipate fully in the  varied situations arising in future in which  the application of the legislation in hand may  be called for and words chosen to communicate  such indefinite referents are bound to be in  many cases, lacking in clarity and precision  and thus giving rise to controversial questions  of construction. The process of construction  combines both literal and purposive approaches.  In other words, the legislative intention i.e.  the true or legal meaning of an enactment is  derived by considering the meaning of the words  used in the enactment in the light of any  discernible purpose or object which comprehends  the mischief and its remedy to which the  enactment is directed."

       In State of A.P. Vs. Mc. Dowell Company [AIR 1996 SC 1627], this  Court held:

"An enactment cannot be struck down on the  ground that Court thinks it unjustified.  The  Parliament and the Legislatures, composed as  they are of the representatives of the people,  are supposed to know and be aware of the need  of the people and what is good and bad for  them.  The Court cannot sit in judgment over  their wisdom.  In this connection, it should be  remembered that even in the case of  administrative action, the scope of judicial  review is limited to three grounds viz., (i)  unreasonableness, which can more appropriately  be called irrationality, (ii) illegality and  (iii) procedural impropriety (See Council of  Civil Services Union Vs. Minister for the Civil  Services (1985 AC 374), which decision has been  accepted by this Court as well).  The  applicability of doctrine of proportionality  even in administrative law sphere is yet a  debatable issue.  (See the opinions of Lords  Lowry and Ackner in R. v. Secretary of State  for the Home Department Ex-parte Brind, (1991  AC 696 at 766-67 and 762).  It would be rather  odd if an enactment were to be struck down by  applying the said principle when its  applicability even in administrative law sphere  is not fully and finally settled."

       In High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor  Panchayat and Others[(2003) 4 SCC 712] this Court noticed:

"In Reserve Bank of India  vs.  Peerless Co.   reported in 1987(1) SCC 424, this Court said:-

"Interpretation must depend on the text and the  context.  They are the basis of interpretation.   One may well say if the text is the texture,  context is what gives the colour.  Neither can

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be ignored.  Both are important. That  interpretation is best which makes the textual  interpretation match the contextual.  A statute  is best interpreted when we know why it was  enacted.  With this knowledge, the statute must  be read, first a whole and then section by  section, clause by clause, phrase by phrase and  word by word.  If a statute is looked at, in  the context of its enactment, with the glasses  of the statute maker, provided by such context,  its scheme, the sections clauses, phrases and  words may take colour and appear different than  when the statute is looked at without the  glasses provided by the context.  With these  glasses we must look at the Act as a whole and  discover what each section, each clause, each  phrase and each word is meant and designed to  any as to fit into the scheme of the entire  Act. No part of a statute and no word of a  statute can be construed in isolation, Statutes  have to be construed so that every word has a  place and everything is in its place..."

In "The Interpretation and Application of  Statutes" by Reed Dickersen, the author at page  135 has discussed the subject while dealing  with the importance of context of the statute  in the following terms:-

"...The essence of the language is to reflect,  express, and perhaps even effect the conceptual  matrix of established ideas and values that  identifies the culture to which it belongs.   For this reason, language has been called  ’conceptual map of human experience’."

The purport and object of the Statute is  to see that a Tribunal becomes functional  and as such the endeavors of the Court  would be to see that to achieve the same,  an interpretation of Section 10 of the  Act be made in such a manner so that  appointment of a President would be  possible even at the initial constitution  thereof.

Such a construction is permissible by  taking recourse to the doctrine of  strained construction, as has been  succinctly dealt with by Francis Bennion  in his Statutory Interpretation. At  Section 304, of the treatise; purposive  construction has been described in the  following manner:-

"A purposive construction of an enactment is  one which gives effect to the legislative  purpose by -

(a) following the literal meaning of the  enactment where that meaning is in accordance  with the legislative purpose (in this Code  called a purposive-and-literal construction),

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or

(b) applying a strained meaning where the  literal meaning is not in accordance with the  legislative purpose (in the Code called a  purposive-and-strained construction).

In DPP  vs.  Schildkamp (1971) AC 1, it was  held that severance may be effected even where  the ’blue pencil’ technique is impracticable.          In Jones  vs.  Wrotham Park Settled Estates  (1980) AC 74 at page 105, the law is stated in  the following terms:-

"..I am not reluctant to adopt a purposive  construction where to apply the literal meaning  of the legislative language used would lead to  results which would clearly defeat the purposes  of the Act.  But in doing so the task on which  a court of justice is engaged remains one of  construction,  even where this involves reading  into the Act words which are not expressly  included in it.   Kammins Ballrooms Co. Ltd.   vs.  Zenith Investments (Torquay) Ltd. (1971 AC  850) provides an instance of this; but in that  case the three conditions that must be  fulfilled in order to justify this course were  satisfied.  First, it was possible to determine  from a consideration of the provisions of the  Act read as a whole precisely what the mischief  was that it was the purpose of the Act to  remedy; secondly, it was apparent that the  draftsman and Parliament had by inadvertence  overlooked, and so omitted to deal with an  eventuality that required to be dealt with if  the purpose of the Act was to be achieved; and  thirdly, it was possible to state with  certainty what were the additional words that  would have been inserted by the draftsman and  approved by Parliament had their attention been  drawn to the omission before the Bill passed  into law.  Unless this third condition is  fulfilled any attempt by a court of justice to  repair the omission in the Act cannot be  justified as an exercise of its jurisdiction to  determine what is the meaning of a written law  which Parliament has passed."

In Principles of Statutory Interpretation of  Justice G.P. Singh, 5th Edition, 1992, it is  stated:

"The Supreme Court in Bangalore Water Supply   vs.  A. Rajappa (AIR 1978 SC 548) approved the  rule of construction stated by DENNING, L.J.  while dealing with the definition of ’Industry  in the Industrial Disputes Act, 1947.  The  definition is so general and ambiguous that  BEG, C.J. said that the situation called for  "some judicial heroics to cope with the  difficulties raised".  K. IYER, J., who  delivered the leading majority judgment in that  case referred with approbation the passage  extracted above from the judgment of

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DENNING,L.J. in Seaford Court Estates Ltd.  vs.   Asher.  But in the same continuation he also  cited a passage from the speech of LORD SIMONDS  in the case of Magor & St. Mellons R.D.C.  vs.   Newport Corporation,  1951(2) All ER 839 as if  it also found a part of the judgment of  DENNING, L.J.  This passage reads: "The duty of  the court is to interpret the words that the  legislature has used.  Those words may be  ambiguous, but, even if they are, the power and  duty of the Court to travel outside them on a  voyage of discovery are strictly limited." As  earlier noticed LORD SIMONDS and other Law  Lords in Magor and St. Mellon’s case were  highly critical of the views of DENNING, L.J.  However, as submitted above, the criticism is  more because of the unconventional manner in  which the rule of construction was stated by  him.  In this connection it is pertinent to  remember that although a court cannot supply a  real casus omissus it is equally clear that it  should not so interpret a statute as to create  a casus omissus when there is really none."

In Hameedia Hardware Stores  vs. B. Mohan Lal  Sowcar  reported in (1988) 2 SCC 513 at 524 the  rule of addition of word had been held to be  permissible in the following words:-

"We are of the view that having regard to the  pattern in which clause (a) of sub-section (3)  of Section 10 of the Act is enacted and also  the context, the words ’if the landlord  required it for his own use or for the use of  any member of his family’ which are found in  sub-clause (ii) of Section 10(3)(a) of the Act  have to be read also into sub-clause (iii) of  Section 10(3)(a) of the Act. Sub-clauses (ii)  and (iii) both deal with the non-residential  buildings. They could have been enacted as one  sub-clauses by adding a conjunction ’and’  between the said two sub-clauses, in which  event the clause would have read thus : ’in  case it is a non-residential building which is  used for the purpose of keeping a vehicle or  adapted for such use if the landlord required  it for his own use or for the use of any member  of his family and if he or any member of his  family is not occupying any such building in  the city, town or village concerned which is  his own; and in case it is any other non- residential building, if the landlord or member  of his family is carrying on, a non-residential  building in the city, town or village concerned  which is his own’. If the two sub-clauses are  not so read, it would lead to an absurd result.

In Punjab Land Development and Reclamation  Corporation Ltd., Chandigarh  vs. Presiding  Officer, Labour Court, Chandigarh and Ors.  reported in (1990) 3 SCC 682, this Court held: "The court has to interpret a statute and apply  it to the facts. Hans Kelsen in his Pure Theory  of Law. (p. 355) makes a distinction between

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interpretation by the science of law or  jurisprudence on the one hand and  interpretation by a law-applying organ  (especially the court) on the other. According  to him "jurisprudential interpretation is  purely cognitive ascertainment of the meaning  of legal norms. In contradistinction to the  interpretation by legal organs, jurisprudential  interpretation does not create law". "The  purely cognitive interpretation by  jurisprudence is therefore unable to fill  alleged gaps in the law. The filling of a so- called gap in the law is a law-creating  function that can only be performed by a law- applying organ; and the function of creating  law is not performed by jurisprudence  interpreting law. Jurisprudential  interpretation can do no more than exhibit all  possible meanings of a legal norm.  Jurisprudence as cognition of law cannot decide  between the possibilities exhibited by it, but  must leave the decision to the legal organ who,  according to the legal order, is authorised to  apply the law". According to the author if law  is to be applied by a legal organ, he must  determine the meaning of the norms to be  applied : he must ’interpret’ those norms (p.  348). Interpretation therefore is an  intellectual activity which accompanies the  process of law application in its advance from  a higher level to a lower level. According to  him, the law to be applied is a frame. "There  are cases of intended or unintended  indefiniteness at the lower level and several  possibilities are open to the application of  law." The traditional theory believes that the  statute, applied to a concrete case, can always  supply only one correct decision and that the  positive-legal ’correctness’ of this decision  is based on the statute itself. This theory  describes the interpretive procedure as if it  consisted merely in an intellectual act of  clarifying or understanding; as if the law- applying organ had to use only his reason but  not his will, and as if by a purely  intellectual activity, among the various  existing possibilities only one correct choice  could be made in accordance with positive law.  According to the author : "The legal act  applying a legal norm may be performed in such  a way that it conforms (a) with the one or the  other of the different meanings of the legal  norm, (b) with the will of the norm-creating  authority that is to be determined somehow, (c)  with the expression which the norm-creating  authority has chosen, (d) with the one or the  other of the contradictory norms; or (e) the  concrete case to which the two contradictory  norms refer may be decided under the assumption  that the two contradictory norms annul each  other. In all these cases, the law to be  applied constitutes only a frame within which  several applications are possible, whereby  every act is legal that stays within the  frame."

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In S. Gopal Reddy  vs.  State of Andhra Pradesh   reported in (1996) 4 SCC 596 this Court  observed :  

"It is a well-known rule of interpretation of  statutes that the text and the context of the  entire Act must be looked into while  interpreting any of the expressions used in a  statute. The courts must look to the object  which the statute seeks to achieve while  interpreting any of the provisions of the Act.  A purposive approach for interpreting the Act  is necessary."

       (See also M/s. DLF Qutab Enclave Complex Edu. Charit. Trust Vs.  State of Haryana & Ors. 2003 (2) SCALE 145)

       The words, which are used in declaring the meaning of other words  may also need interpretation and the legislature may use a word in the  same statute in several different senses.  In that view of the matter,  it would not be correct to contend that the expression as defined in  the interpretation clause would necessarily carry the same meaning  throughout the statute.   

       The question came up for consideration before this Court in State  of Maharashtra vs. Indian Medical Association and Others [(2002) 1 SCC  580] wherein this Court speaking through one of us (Khare V.N., CJI)  was concerned with the term "management" occurring in Maharashtra  University of Health Sciences Act, 1998.  Therein a question arose as  to whether the State Government is required to obtain the approval of  the Medical Council of India for establishment of new medical college.  "Management" as contained in Section 2(21) of the Act, which was in the  following terms:-

"Section 2.  In this Act, unless the context  otherwise requires, -

(21)    ’Management’ means the trustees, or the  managing or governing body, by whatever name  called, of any trust registered under the  Bombay Public Trusts Act, 1950 Bom. XXIX of  1950 or any society registered under the  Societies Registration Act, 1860 21 of 1800  under the management of which one or more  colleges or recognised institutions or other  institutions are conducted and admitted to the  privileges of the University.

Provided that, in relation to any college or  institution established or maintained by the  Central Government or the State Government or a  local authority such as a Zila Parishad,  municipal council or municipal corporation, it  means, respectively, the Central Government or  the State Government or the concerned local  authority that is the Zila Parishad, municipal  council or municipal corporation, as the case  may be."

       The question which arose for consideration was as to whether the  State Government would come within the purview of the said Act.  This  Court answered the said question in the negative holding that the  expression ’Management’ must be read contextually in the following

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terms:

"We are, therefore, of the opinion that the  defined meaning of the expression ’management’  cannot be assigned or attributed to the word  ’management’ occurring in Section 64 of the  Act. The word ’management’ if read in the  context of the provisions of Section 64 of the  Act, means any one else excepting the State  Government applying to a State Government for  permission to establish the proposed medical  college at proposed location to be decided by  the State Government."

       The doctrine of purposive construction, thus, must be applied in  a situation of this nature.

       A trader in terms of a statute is prohibited from carrying on  trade.  He also cannot remain in control over the animal article.  The  logical consequence wherefor would be that he must be deprived of the  possession thereof.  The possession of the animal article including  imported ivory must, therefore, be handed over to the competent  authority.  In a case of this nature where a statute has been enacted  in public interest, restriction in the matter of possession of the  property must be held to be implicit.  If Section 49(7) is not so  construed, it cannot be given effect to.

       We, therefore, are of the opinion that the appellants have no  right to possess the articles in question.  Keeping in view of the fact  that the provisions of the statute have been held to be intra vires the  question of compensating the appellants would not arise as vesting of  possession thereof in the State must be inferred by necessary  implication.

ARE THE PROVISIONS OF THE AMENDING ACT VIOLATIVE OF THE RIGHT OF  PROPERTY OF THE APPELLANTS?

       It is true that right to property is a human right as also a  constitutional right.  But it is not a fundamental right.  Each and  every claim to property would not be property right.

       Control of property by the State short of deprivation would not  entail payment of compensation. (See Davies Vs. Minister of Land,  Agriculture and Water Development [1997] 1 LRC 123 (Zimbabwe Supreme  Court)[Interpreting Convention Rights by Hugh Tomlinson and Vina Shukla  - page 470]

       As at present advised, we do not intend to deal with the question  as regard sovereign power of the State vis-Ã -vis the maxim "salus  populi suprema lex" as stated in Charan Lal Sahu vs. Union of India  [1990) 1 SCC 613],the same may have to be considered in an appropriate  case.     

ARE THE GUIDELINES CONSTITUTIONAL?

       We, however, are of the opinion that the guidelines issued by the  Central Government do not meet the requirements of law particularly  Section 63 of the Act.  Keeping in view the clear and unambiguous  provisions contained in Sub-section (1), (3), (5) and (6) of Section  49-C, the Central Government could not have directed that the

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appellants would be entitled to only one piece of article and  the rest  would be destroyed.  These guidelines,  

therefore, in our opinion cannot be given effect to and the appellants  may pursue their remedies, if any, in terms of Sub-Section (3) of  Section 49-C of the Act and their applications filed in this behalf, if  any, must be disposed of in terms of the aforementioned law.

CONCLUSION:

       We, therefore, are of the opinion that the respondents would be  entitled to take physical possession of the ivory now in seizure.  The  question, however, would be as to whether the Central Government should  destroy the articles including idols of gods and goddesses and  household items like sofa sets depicting cultural and religious  heritage.   

       It is stated that similar articles are being displayed in museums  as a part of cultural and religious heritage of India.   

       In view of our findings aforementioned, the appropriate authority  would be entitled to continue to keep in possession the said articles.   We, however, direct that the same be kept at appropriate museums or at  such suitable places where the statutory authorities feel fit and  proper but they should not be destroyed.

       With the aforementioned directions and observations, these  appeals and writ petition are dismissed.