C.A. Vaidialingam, J.
1. In this batch of 14 writ petitions, the pen-tinners, though different, who are all owners of forest lands in the area, commonly known as the Malabar area, attack the group of four Sections, namely, Sections 48 to 51, contained in Chapter VII of the Kerala Forest Act, 1951, (Act IV of 1962), hereinafter to be referred to as the Kerala Act, as unconstitutional and as Infringing the fundamental rights guaranteed to the petitioners under Articles 19(1) (f) and (g), and 31 of the Constitution. The State of Kerala is the main respondent in most of these writ petitions, though in some of them some of the officers of the Forest Department have also been included as additional respondents.
2. Though the averments contained in all these writ petitions are slightly different, all the learned counsel appearing for the petitioners, as well as the learned Gov-ernment Pleader appearing for the State, have agreed to treat the averments contained in O. P. No. 1108/62 as well as the counter-affidavit filed by the State in the said writ petition, as representing the respective stand taken by the various petitioners, as well as by the State in all these matters.
3. The averments contained in O. P. 1108/62 are briefly as follows. The petitioner is the owner of extensive forest lands belonging to him, absolutely and in his enjoyment. The forests contain timber and other trees. besides several kinds of oner forest produce, including wild animals, such as elephants etc. The petitioner has been cutting and removing timber and other trees from the forests in accordance with the usual practice adopted by owners of forest lands; and the process of extraction of timber and removal of timber from the forests is also adopted as incidental to the petitioner's business as a dealer in timber -- which business again Isibeing carried on by him for a number of years. The petitioner claims that as owner of the forest lands, he has the absolute right to the use and enjoyment of the forests and forest produce, without those rights being in any manner curtailed, Interfered with, or affected. On such right of enjoyment, according to the petitioner, is the right to capture wild elephants found therein, fame and train them, and employ them for purposes of removing timber trees felled from the forests and for other purposes. In fact, the petitioner claims that the right to capture elephants found on his property, is incidental to his right as owner of the forest lands, just as his right to take the other forest produce, such as timber and other trees, honey, wax, tusks, etc.
4. The petitioner then refers to the Kerala Forests Act, 1951 (Act IV of 1962), as having come into force on 18-1-1962. The said Act purports to be an Act to unify and amend the law relating to the protection and management of forests in the State of Kerala. According to the petitioner, the provisions contained in Chapter VII of the Kerala Act, Sections 48 to 51, are provisions which prohibit any person from capturing elephants even from his own forest lands, and also declare that any wild elephant captured or the tusXs and teeth of any wild elephant killed in the forest lands in the State, are to be regarded as property of the Government and that they have to be delivered to the nearest Forest or Police Officer. Those provisions, according to the petitioner, also prescribe for the grant of permits to any person to capturing or shooting wild elephants from his own forest land; but the elephants captured or killed, even on the basis of such permission, are stated to belong to the Government as its property. Provision has also been made in these Sections, making the violation of the provisions attacked, offences punishable under Section 49.
5. According to the petitioner, these provisions are beyond the legislative ccmpetence of the State Legislature, and such legislation is not taken in by Entry No. 20 in List II of the Seventh Schedule of the Constitution. The said Entry 'Protection of wild animals and birds', does not comprehend the power to legislate providing for the complete deprivation of rights of ownership over wild elephants and apppropriation by the State of such owner-ship, without paying any compensation and for no public purpose. The petitioner further avers that in law, an owner of forest or tract of land has got the right to trap and capture wild animals, including wild elephants that are found on his property, and that such capture confers absolute ownership over the animals captured. It is further averred that in law, wild animals found on the property of a person, and when killed, become! the property of owners of forest or tracts wherefrom they are killed. In fact, according to the petitioner, such rights of killing and capturing wild animals found on his property, appertain to the owner of such hands, and constitute property of a very valuable character.
6. The petitioner further avers that tamed elephants form the backbone of timber business in Malabar and elsewhere, and the process of removing and dragging timber trees cut down from the forest is not possible to be achieved except with the help of elephants which are trained for such purpose. Even such of those timber dealers, who do not own elephants themselves, take elephants on hire, paying larger amounts for the purpose of removing and dragging the timber that has been cut. The petitioner, apart from being an owner of forest, is also a dealer in timber; and the elephants captured and tamed ara very valuable to him inasmuch as he could employ them in his business in timber. The petitioner claims that he owns about 4 elephants. He also takes on hire other elephants from other persons in connection with his timber business.
7. The petitioner then states that the average price of a tusker of 7 to 10 years will be between Rs. 10,000 and Rs. 15,000/-, and the price increases with the age of the elephants, and even goes up to more than Rs. 20,000/- when the animal reaches the age of 20 years. Similarly, female elephants also cost between, Rs. 5000 to Rs. 10,000/-, and rise up to Rs. 15,000. The tusks are very valuable property, as one set is easily worth Between Rs. 3000 and 4000, or even more, having regard to the size and quality. According to the petitioner, in view of all these circumstances, the provisions of Section 50 of the Kerala Act in question, depriving the legitimate owner of property, of elephants dead or alive or over its tusks, without any payment of compensation, or for any public purpose, are expropriatory and violative of Article 31 of the Constitution, and, as such, ultra vires the powers of the State Legislature, and void.
8. The petitioner further avers that Section 48 of the Kerala Act prohibits absolutely the capture of wild elephants by persons from their own property and from places in their possession and enjoyment except with the sanction of Government. Those provisions are illegal and violative of the fundamental rights of the petitioner under Articles 14, 19(1)(f) and (g), and 31 of the Constitution, as they amount to a deprivation of his rights of enjoyment of his forest lands in the usual and customary manner. The petitioner again reiterates that he has got a right in law to capture wild elephants found on his property without let or hindrance by anybody. Therefore, in consequence, the provision that such a right can be exercised with the permission of the State Government, is highly Illusory, and is a mere camouflage. Even if a person obtains a licence or permit from the Government, no benefit accrues to the owner of the property because the elephant, that is either so captured or killed, becomes under Section 50, the property of the Government and has to be delivered to the State officials. The petitioner further states that more than Rs. 3000 will have to to spent for the purpose of capturing and taming an elephant and further amounts will have to be spent for digging elephant pits every year, renovating the existing pits, and keeping watchmen for the purpose of trapping elephants; and therefore it is not worthwhile for any forest owner to apply for and obtain permission from the Government under Section 48 or 51 of the Kerala Act.
9. The petitioner also claims that he has a fairly extensive timber business in respect of which he pays tax to the Government, and that business very much depends upon his being able to drag the felled timber logs from the forest areas which can be done only with the help of tamed elephants. In certain parts of the forests there are no roads and the terrain is also very steep and difficult, and no jeeps or any other vehicles can reach those places. The only manner in which the timber cut in those areas could be brought out of these (sic) is fay the practice adopted by the timber mer-(sic) fop many years namely to get it done through the help of tamed elephants. The petitioner further avers that these provisions in the Kerala Act continue to be (sic) the timber business will be completely crippled and destroyed. According to the petitioner, the impugned provisions in the Karale Act, totally prohibit an owner's right to capture elephants, tame them and to own them, and employ them in his timber business, and, as such, they constitute gross violation of Article 19(1) (f) and (g) of the Constitution. Those provisions cannot be considered to be restrictions, much less reasonable restrictions, in view of the fact that no public interest of any kind is served or sought to be furthered thereby.
The petitioner further states that there is absolutely no dearth of wild elephants in the forest areas in the Malabar area, nor in the forest areas in the other parts of Kerala State. Wild elephants roam about in the forest in large groups and in abundance, and they also multiply. There is absolutely no chance of such animals becoming rare or extinct. According to the petitioner, the number of elephants captured or tamed every year from the Malabar forests does not exceed on an average about 40, of which nearly more than half are those captured by Government from Government forests. The petitioner also states that no wild elephants are ordinarily kilted or destroyed by owners of forest lands, because they are very useful for their timber business.
10. According to the petitioner, the Kerala Act nas merely reproduced the provisions in Chapter VII of tha Travancore-Cochin Forests Act, III of 1952. So far as the Travancore-Cochin area is concerned, the petitioner states that all the forests are owned only by the Government and therefore such provisions may not be objectionable whereas in the Malabar area the bulk of the forest lands are held in private ownership. This very Important aspect, according to the petitioner, has been tost sight if by the Legislature when it enacted the impugned provisions. The Madras Wild Elephants Preservation Act, Madras Act 1 of 1873, was in force in the Malabar area till the Kerala Act was passed, and the said Madras Act does not in any manner prohibit or restrict the owners of forests from capturing, taming and owning wild elephants.
11. Ultimately, on the basis of these allegations, the petitioner winds up his petition, by stating that the provisions which are impugned in the Kerala Act, are unreasonable in character, and unrelated to the purpose for which Legislative power is conferred on the State Legislature under Entry 20 of List II in the Seventh Schedule of the Constitution and that the said provisions are grossly violative of the fundamental rights of the petitioner under Articles 14, 19(1)(f) and (g), and 31 of the Constitution. Accordingly the petitioner prays to declare these provisions, namely Sections 48 to 51 of the Kerala Act, as unconstitutional, ultra vires the powers of the State, and violative of the fundamental rights of the petitioner; and to issue writs in the nature of mandamus or other appropriate writ or direction to the respon-dent, the State, to forbear from enforcing the impugned provisions, viz., Sections 48 to 51 of the Kerala Forest Act, Act IV of 1962.
12. The averments of the State in its counter affidavit again are briefly as follows: According to the State, Sections 48 to 51 of the Kerala Act are intra vires the Constitution and are perfectly legal and valid. The State further avers that the true legal position is that animals 'ferae 'naturae', within a State, belong to the people in their collective sovereign capacity, and such animals are not the subject of private ownership except to the extent sanctioned by law; According to the respondent, it is open to the Legislature, if it considers fit and in the interests: of the public good, to prohibit absolutely the taking of such animals, or any traffic or commerce in them. It is again reiterated that the ownership of all animals 'ferae naturae', in so far as they are capable of ownership, is in the State, as the representative of and for the benefit of all its people in common, and any qualified right of property in such animals, which an individual may claim, is itself subject not merely to restrictions, but even to total prohibition in the interests of the public good.
According to the State, the impugned provisions in the Kerala Act, which have taken away such qualified rights as the petitioner may have had, are intended to subssrva the interests of the public good and are within the legislative competence of the State Legislature. The preservation of wild elephants, according to the State, is in the interests of the people of the State as a whole; and, in order to achieve and further those interests, it is necessary that an individual should not be permitted, merely because he may own the forests, to capture wild elephants found therein and to turn them to his private use; nor can he be permitted any traffic or commerce in such wild elephants. The prohibition. Imposed by the provisions under attack in the Kerala Act, is a reasonable restriction in the interests of the public, and there is no violation of any fundamental rights guaranteed under Articles 14, 19(1)(f) and (g), or 31 of the Constitution. The State winds up its counter affidavit by stating that the petitioner is not entitled to any relief and that the petition has to be rejected with its costs.
13. Before I proceed to consider the points arising for consideration in these writ petitions, it has to be stated that the State Government has not controverted the allegations contained in the petitioners' affidavits that the petitioners are the owners of the forests in their absolute right. The State has also not controverted the position that in the Travancore-Cochin area there are no private forests; whereas such private forests do exist in the Maiabar area. The State also does not controvert that the petitioners carry on the business in timber, for which business the capturing, taming and training of elephants in particular are absolutely necessary. The State has also not controverted the stand taken by the petitioners that there is no dearth of wild elephants in the various areas, either in the Malabar area or in the forest areas in the rest of the Kerala State, and that wild elephants roam about the forests in large groups and in abundance and that they multiply. Nor has the State controverted the allegation of the petitioners that there is no chance of the wild elephants becoming extinct, either in the near future or thereafter. Nor has the State controverted the allegations of the petitioner regarding the effect of the impugned provisions on their right to carry on business, and that those provisions amount to deprivation of their rights in property.
The stand taken by the State is that in law, animals 'ferae naturae' within the State, belong to the people collectively in their sovereign capacity and that it is open to the Legislature, in the interests of the public to prohibit the absolute taking of the animals or doing any traffic or commerce in them. According to the State, the ownership of such animals is in the State, for the benefit of all its people in common. Though the State has taken up the position that in the interests of the public good, the Legislature is entitled to prohibit absolutely the taking of these animals and that the presgr-vation of wild elephants is in the interests of the people cf the State as a whole, and that the prohibition in this case is a reasonable restriction in the interests of the public. Except making such averments, the State has not placed any materials as to how exactly it has come to such a conclusion. Therefore, the position is that un-less this Court accepts the stand that is taken by that State that in law, animals 'terae naturae' within the State belong to the people in their collective sovereign capacity, it may be very difficult to sustain the contribution-lity of the provisions under attack.
14. This will be a convenient stage to refer to the provisions of the Madras Wild Elephants Preservation Act, 1873, Madras Act I of 1873, as well as the provisions in the Elephants Preservation Act, Central Act VI of 1879. After considering the provisions in these two statutes, I will refer to the material provisions in the Travancore-Cochin Forests Act, 1951.
15. The Madras Wild Elephants Preservation Act, 1873, was in force in the Maiabar area, in particular from 1-10-1873, till it was repealed by the Kerala Act on 18-1-1962. The said Madras Act was an Act to pro-vent the indiscriminate destruction of wild elephants. The preamble to the said Act states that it was found expedient to make provision to prevent the indiscriminate destruction of the wild elephants, within the presidency of Madras. Therefore it will be seen that the object of the statute itself was to prevent the indiscriminate destruction of wild elephants. Section 2 of the Act prohibited the destruction of wild elephants from and after the date of the coming into force of the Act, namely 1st October 1873, except as provided under the Act. Sections 3 and 3-A related to the shooting or destroying of any wild female elephant, upon waste or forest land, whether such land was the property of Government or otherwise.
Section 3 makes the shooting or intentional destroying or abetting the shooting or destroying, of any wild female elephant upon waste or forest land -- whether the property is Government property or otherwise -- unless authorised by a licence under the provisions of Section 3-A, an offence; and the punishment for the (sic) offence is also indicated. Under Section 3-A power is given to the Collector, subject to any rules that may be made by the Government from time to time, to grant to any person by name a special licence to shoot or destroy wild female elephants upon waste or forest land, whether such land be the property of the Government or otherwise. It also provided for the duration of the licence to be so granted. Therefore, it will be seen that the issue of a licence under Section 3-A and the prohibition contained in Section 3 were in respect of shooting or destroying of any wild female elephants, upon the property of the Government or even on private land.
16. Sections 4 and 7 of the Madras Act, again dear with shooting or destroying wild mate elephants upon waste or forest lands, which are the property of the Government. In particular, it will be noted that Sections 4 and 7 only relate to the shooting or destroying of (a) wild male elephants, and (b) upon Government property. Those Sections have nothing to do with the shooting or destroying of wild male elephants that may be found on private lands. Under Section 7 the Collector is given power to issue a licence to any person authorising him to shoot wild male elephants on the property of the Government and the duration of the licence is also mentioned therein. Section 4 makes the shooting or destroying of wild male elephants on the Government property, unless a licence is obtained under Section 7, an offence; and the punishment is also provided thereunder.
17. There is a very important Section in the Madras Act, namely Section 5, whereunder the right of an owner or occupier of land to shoot or destroy wild male elephants found on his waste or forest lands, has been well preserved. In fact, the said provision clearly says that the various provisions in the Act shall not be deemed to prevent such owner from shooting or destroying wild male elephants on bis waste or forest lands.
18. Section 8 of the Act gives power to the Stats Government to make rules for regulating the grant or renewal of licence, as also the licence fees to be charged for the grant or renewal of licence.
19. Therefore, it will be seen from the scheme of the Madras Act, referred to above, that its object was to prevent indiscriminate destruction of wild elephants, and that a licence was necessary under Section 3-A of the said Act only to shoot wild female elephants, whether it be on the property of the Government or private lands. So far as wild male elephants are concerned, a licence was necessary only for the purpose of shooting wild male elephants on Government property. There was no restriction in the right of an owner of forest lands for shooting or destroying wild male elephants found in his own forest lands. But the more important point to be noticed is that the right of the owner to shoot wild male elephants found on his property, is recognised by the State. Further, there is no provision in the Act that a wild female elephant, killed or captured by an owner from his own property, or a wild male elephant killed or captured by an owner from his own property, are to be considered as the property of the Government. There is also r,o provision which places any restriction regarding the right of an owner in capturing either a male or a female elephant from his own property and after capture, they con-tinue to be his property.
Therefore, the object of the statute is well preserved, by making suitable provisions regarding the indiscriminate destruction of wild elephants; and none of those provisions come into conflict with the rights of an owner of private property. These provisions also, in my view, give a clear indication to the effect that from 1873 the Government, including the Kerala State from 1-11-1956 to 18-1-1962, has never attempted to make any claim regarding right or title in such wild elephants, either before or after capture or killing, as vesting in them at any stage. There is also a provision in the Madras Act, namely Section 6, which authorises any person to shoot or destroy any wild male or female elephant, which is found Upon cultivated lands, or upon or in the immediate vicinity of any public road, or for the purpose of defending himself or any other person.
20. The other statute that has to be adverted to is the Central Act No. VI of 1879, namely the Elephants' Preservation Act. Admittedly, that statute had no application to Madras, because there was already the Madras Act I of 1873 in force in that area. Therefore the Central Act had no application at alt to the Malabar area as well. That again, was an Act for the preservation of wild elephants. The Preamble to the Act states that it was found expedient to provide for the preservation of wild elephants. The Act itself came into force with effect from 1st April 1879. Section 3 of the Act prohibits the killing, injuring, or capturing, or attempt to kill, injure, or capture, any wild elephants, unless it be : (a) in defenca of himself or some other person, (b) when such elephant is found injuring houses or cultivation, or upon, or in the immediate vicinity of, any main public road or any railway or canal, and (c) as permitted by licence granted under the Act. .
Section 4 provided that every wild elephant killed, by any person not licensed under the Act, shall be the property of Government. Section 5 provided for the issue of the licence mentioned therein, subject to any rules that may be in force for the time being under the Act, to kill, or to capture, wild elephants within the area concerned. But there is a proviso to Section 5 to the effect that no such licence shall authorise any person to enter upon any land without the consent of the owner or occupier thereof. Section 6 authorised the State Government declaring as to what shall be deemed to be main public roads and canals and also for making rules consistent with the Act. In particular, it is seen that under Section 6 (b) the rules may provide for the fees in money for the tusks or captured elephants, to be charged on such grant and renewal. Section 7 provides for penalty for killing, injuring, or capturing, or attempting to kill, injure or capture, any wild elephant, in contravention of Section 2.
21. it will be seen that the statute again prohibits killing, injuring or capturing any wild elephant, excepting under the three circumstances mentioned in clauses (a) to (c) of Section 3. Section 4 makes it very clear that it is only a wild elephant that has been captured, and the tusks of every wild elephant killed by a person not licensed under the Act, that shall be the property of Government. From this it follows that if a person kills or captures a wild elephant on his own land, by virtue of a licence granted under the Act, that elephant killed or captured, does not become the property of Government, but will be the property of the killer or captor. Similarly it also follows that the tusks of every wild elephant killed by a person who has obtained a licence to kill wild elephants, do not become the property of Government, but are the property of the killer himself.
Therefore, it will be seen that there is no provision in this Central Act to the effect that even an elephant captured under licence, or the tusks of an elephant killed under a licence, shall be the property of the Government. In fact, that the Government had no intention to claim ownership or property rights in respect of wild elephants captured, or the tusks of wide elephants killed under licence, is also made clear by Section 6 (b) of the Act. Under that provision the rules may provide for levy of fees in respect of the tusks of elephants killed, or captured elephants, for the purpose of Issuing licence and for renewing the same. Therefore, the provisions in this statute: also do not in any manner infringe the rights of owners of property in respect of such wild elephants, provided they have taken a licence under the Act for either killing, injuring or capturing, or for killing and capturing the wild elephants.
22. I am particularly referring to these aspects in the Central Act, because one of the points that has been urged by the learned Government Pleader appearing for the State, is that the Impugned provisions in the Kerala Act are practically modelled on the provisions of the Central Act. In my view, the provisions of the Kerala Act, to which I will be referring later, are entirely different from the provisions of the Central Act, to which I have already made reference.
23. it may also bo stated that there was another statute, namely the Madras Forest Act, 1882 (Act V cf 1882), which was enacted for the purpose of protection and management of forests in the Presidency of Madras. There was also another Central Act, namely the Indian Forest Act, 1927 (Central Act 16 of 1927). But this latter Central Act had no application to the Madras area, inasmuch as the Madras State had already a special Act, namely the Madras Forest Act, 1882 (Act V of 1832). There is no controversy that there are no provisions either in'the Madras Act V of 1882, or in the Central Act, 16 of 1927 regarding the aspects which this Court has now to consider. But it will be noted that the Kerala Act has repealed the Madras Forest Act, V of 1882, as also, the Madras Wild Elephants Preservation Act, 1873 (Act I of 1873). (24) I will have now to advert to the provisions of the Travancore-Cochin Forest Act, 1951, (Act III of 1952). It will be seen that prior to the said enactment, there were two separate statutes, namely the Travancore Forest Act, 1068 (Act II of 1068), having application in the Travan-core area, and the Cochin Forest Act (Act III of 1030) having application in the Cochin area. Both these statutes have been repealed by Section 101 of the Travaneore-Cochin Forest Act, 1951 (Act III of 1952).
25. The Travancore-Cochin Act was an Act to make better provisions for the protection and management of forests in the State of Travancore-Cochin. Chapter VII of the Act, consisting of Sections 47 to 51 inclusive, deait with Wild Elephants. As it is the case of the petitioners that these Sections have been bodily, so to say, re-enacted in the Kerala Forest Act, without taking note of the circumstance that in the Malabar area there are a larger number of private forests, it is desirable to set out the provisions themselves. Chapter VII is as follows:
47. Killing etc. of wild elephants prohibited: No wild elephant shall be killed, wounded, or captured in any place within the State, except with the sanction of the Government.
48. Punishment for killing, wounding or capturing wild elephants without authorisation: Whoever, not being authorised thereto under the provisions of Section 50, kills, wounds or captures or abets within the meaning of that term as defined in the Indian Penal Code killing, wounding or capturing of a wild elephant in any place within the State shall be punished with imprisonment which may extend to six months or with fine or both for each animal. Any person convicted of a second offence under this Section shall be liable to double the punishment mentioned above.
Exception : it is not an offence under this Section for any person to kifl or wound any wild elephant in defence of himself or of any other person or in defence of property;
Provided that the right of defence of person or property in ho case extends to the causing of more harm than is necessary for the purpose! of defence.
49. Tusks and. teeth of elephants killed or captured, the property of Government : Any wild elephant captuted or the tusks and teeth of any wild elephant killed shall be regarded as the property of the Government and shall be delivered to the nearest Forest or Police Officer.
50. Grant of permit for the shooting or capturing of wild elephants : The Government may, subject to such rules as may be made by them in this behalf, from time to time, grant general or special permits in writing to any person for the shooting or capturing of wild elephants and such person shall be exempted from the operation of Section 48 so long as he acts in accordance with the rules given in the permit.
51. Power to make rules regulating the killing or wounding of wild elephants in defence of person or property : The Government may make rules regulating the killing or wounding of any wild elephant in defence of person or property.'
It will be noted from the provisions extracted above, that there is an absolute prohibition regarding the killing, wounding, or capturing of a wild elephant in any part of the Travancore-Cochin State, except with the sane-, tion of the Government. Such killing, wounding or capturing without the sanction of the Government was made an offence, and the punishment is also indicated. No doubt, the Exception to Section 48 gave a limited right to kill or wound any wild elephant in defence of oneself or any other person or in defence of property. But the proviso to the Exception further limited the sard right, by providing that the right of defence of person or property in no case extends to the causing of more harm than is necessary for the purpose of defence. It is really in consequence of the Exception and the proviso to Section 48, that Section 51 was necessary in the Travancore-Cochin Act, wherety provision is made enabling the Government to make rules regulating the killing, or wound-ing of wild elephants in defence of person or property.
It will also be noted that under the material provisions, a wild elephant captured, or the tusks and teeth of wild elephant killed, shall be regarded as the property of Government, and there is an obligation to deliver the same to the Government officers. Provision is' also mads, subject to rules, for the Government granting general or special permits to any person for shooting or capturing wild elephants and such a person is exempted from being held guilty of the. offence punishable, in the manner mentioned in Section 48. These provisions dearly show that, notwithstanding the fact that a person may kill a wild elephant or capture a wild elephant, on the basis of a permit obtained from the Government, nevertheless the property in the wild elephant captured, or in the tusks and teeth of the wild elephant killed, is in the Government. As l mentioned earlier, Section 101 of the Travancore-Cochin Act, repeals the relevant Travancore and the Cochin Forest Acts.
26. Then we come to the Kerala Act, namely the Kerala Forest Act, 1961, Act IV of 1962. There is no controversy that the said Act came into force with effect from 18-1-1962. Here again, it will be noted that the Act itself was passed for the purpose of unifying and amending the law relating to the protection and manage-ment of forests, in the State of Kerala. The Preamble is to the effect that
'Whereas it is expedient to unify and amend the law relating to the protection and management of forests in the State of Kerala .....'
The particular provisions that are under attack, are four Sections namely Sections 48 to 51 Inclusive, under the heading 'Preservation of Wild Elephants' occurring in Chapter VII. It is necessary to extract the Sections themselves.
PRESERVATION Of WILD ELEPHANTS,
48. Killing etc. of wild elephants prohibited : No wild elephant shall be killed, wounded or captured in any place within the State except with the sanction of Govern-ment or except as hereafter provided.
49. Punishments for hilling etc., wild elephants without authorisation: Whoever, not being authorised thereto under the provisions of Section 48 or Section 51, kills, wounds or captures, or abets within the meaning of that term as defined in the Indian Penal Code, hilling, wounding, or capturing of, a wild elephant in any place within the State, shall be punished with imprisonment which may extend to two years or with fine which may extend to three thousand rupees, or both, for each animal besides recovery of loss as assessed by the Forest Department. Any person convicted of a second or subsequent offence under this section shall be liable to double the punishment mentioned above :
Provided that nothing in this section shall be deemed to prevent any person from killing or wounding any wild elephant in defence of himself or of any other person or property :
Provided further that any person killing any wild elephant in defence of himself or of any other person or property, shall immediately report the matter to the nearest Police or Forest Officer and also take steps to protect the dead body until it is taken charge of by the Police or Forest Officer.
50. Captured wild elephants and tusks and teeth of elephants hilled, the property of Government : Any wild elephant captured or the tusks and teeth of any wild elephant hilled, shall be regarded as the property of Government and shall be delivered to the nearest Forest or Police Officer.
51. Grant of permits for shooting or capturing of wild elephants : The Government may, subject to such rules as may be made by them in this behalf, from time to time, grant general or special permits in writing to any person for the shooting or capturing of wild elephants and such person shall be exempted from the operation of Section 49 so long as he acts in accordance with the rules.'
27. it will be noted that Section 48 of the Kerala Act corresponds to Section 47 of the Trauancore-Cochin Act; Section 49 corresponds to Section 48; Section 50 corresponds to Section 49 and Section 51 corresponds to Section 50. There is no provision in the Kerala Act corresponding to Section 51 of the Travancore-Cochln Act as such, because provision has been made in the first proviso to Section 49 of the Kerala Act. There is also 3 slight difference in the wording of the proviso to Section 48 of the Travancore-Cochin Act and in the wording of the provisos to Section 49 of the Kerala Act. But it will be seen that substantially both the sets of provisions clearly make an offence for any person to kill, wound, or capture a wild elephant, except with the sanction of the Government. Both the groups of Sections again provide that even a wild elephant captured on the basis of a licence or permit, or the tusks and teeth of any wild elephant killed even on the basis of a permit, shall be regarded as the property of the Government and shall be deliver-ed to the nearest Forest Officer or Police Officer.
There is an absolute prohibition against the owner of forest lands from killing, wounding or capturing wild elephants that are found on his property, except with the sanction of the Government, i. e., an owner of forest lands, even for the purpose of capturing a wild elephant found in his own forest, will be committing an offence if he so captures a wild elephant without obtaining sanction from Government. Similarly, even if an owner of private forest obtains a permission from the Government for killing or capturing an elephant found in his own forest, he does not get any benefit out of the hilling or capturing of the wild elephant, because under Section 50, such a wild elephant captured, and the tusks and teeth of a wild elephant hilled, are regarded as the property of Government. Therefore the fact that the owner of property obtains a licence or permit for the purpose of killing or capturing wild elephants found on his own property, serves no material purpose whatsoever so far as he is concerned, because they immediately become the property of Government. Further, under Section 51 it is specifically provided that if a person obtains a permit to shoot or capture wiid elephants even from his own property, the utmost benefit that he gets is that he will not be liable for prosecution under Section 49 of the Act. Therefore, these provisions have been very strenu-ously attached by Mr. K. V. Surianarayana Iyer, learned counsel for the petitioner, as being illusory, ultra vires the powers of the Government and also as affecting the fundamental rights of persons like the petitioners. That stand has bean adopted by the other learned counsel appearing for the various petitioners in the other writ petitions also.
28. Mr. K. V. Surianarayana lyer, learned counsel for the petitioner, has urged that by virtue of these provisions, an owner of forest cannot' capture even from his-own property, any wild elephant, which capturing is absolutely essential for the purpose, of taming and training them, so that they may be used in connection with his timber business. Even though the statute says that the elephant so captured shall be regarded as the property of Government, there is absolutely no provision made for payment of any compensation. As to why exactly these provisions have been made and what is the purpose that is sought to be served for the purpose of considering as to whether they would be considered to be reasonable restrictions in the interest of the public, is not at all indicated by the Government in its affidavit.
If an owner of property kills a wild elephant foundon his own property without a licence, he is liable forprosecution; whereas if he obtains a licence and thenkills a wild elephant, he is only exempt from prosecutionunder Section 49 whereas the tusks and teeth of theelephant so killed are again regarded as the property ofthe Government. That is why the learned counsel urgedthat there is an infringement of the fundamental rightsguaranteed under Articles 19(1) (f) and (g), and 31 ofthe Constitution. No dcubt, the learned counsel urgedthat the legislation cannot be upheld under Entry No. 20in List II of the Seventh Schedule of the Constitution.Entry No. 20 is to the effect 'Protection of Wild Animalsand Birds'; and inasmuch as these provisions are expro-priatcry and confiscatory in nature, they cannot by anystretch of imagination be considered to be provisions for'Protection of Wild Animals and Birds'.
29. The stand taken by the learned Government Pleader is that there is no individual right recognised in law in animals 'ferae naturae' and such animals belong to the people in their collective sovereign capacity. It may be that after the wild animals are captured and reduced to possession by an individual, he may have to be considered to have a qualified right of property in those animals. But the various provisions of the statute, which are under attack, clearly show that the State has stepped in at an anterior stage and prohibited the killing, wounding or capturing of wild elephants within the State. Therefore, before an individual owner could claim any qualified rights in such animals, it is open to the State to provide for the absolute prohibition regarding the killing, wounding or capturing. The learned Government Pleader also urged that those provisions are for the purpose of subserving the interests of the public. The [earned Government Pleader also urged that if an individual like the petitioner cannot claim any right in animals 'ferae naturae', it is not really necessary that the State should furnish any other particulars to justify the legislation as a reasonable restriction of the rights of the petitioner, because that question will arise only if the petitioners have any right, recognised in law, in respect of animals 'ferae naturae'.
30. Therefore, the question arises as to how far the provisions under attack infringe the fundamental rights, if any, of persons like the petitioners, as alleged by them. That again raises the question as to what exactly is the position in law of wild animals 'ferae naturae', and what are the rights if any, of an owner of property on which wild animals 'ferae naturae' exist
31. Though, no doubt, the competency of the Legislature to enact the provisions in question on the basis of Entry 20 in List II of the Seventh Schedule has also been raised by Mr. K. V. Surianarayana Iyer, learned counsel for the petitioner, I do not think it necessary to embark upon any elaborate consideration of that aspect. Even assuming that the Legislature has got the competency to enact the provisions in question under Entry 20 of List II of the Seventh Schedule, the further question will arise as to whether any of the rights guaranteed to persons like the petitioner have been infringed.
32. The statute is a post-Constitution statute, and Article 13(2) will apply, wherein it is provided that any law made by the State, which takes away or abridges the rights conferred by Part III of the Constitution, shall, to the extent of the contravention, be void. Therefore if these provisions infringe the fundamental rights guaranteed under Part III, it follows that they will have to be declared void under Article 13(2) of the Constitution.
33. The position of wild animals 'ferae natural, as well the rights of an owner of property in respect of such wild animals 'ferae naturae', have been discussed in various text books, as well as in certain decisions, to which I will have to refer immediately. In Halsbury's Laws of England, III Edn., Vol. 1, the learned author discusses at page 655 'Property in Animals'. At page 656, paragraph 1252, it is stated that
'There is no absolute property in wild animals while living, and they are not goods or chattels'.
But it is also stated therein :
'There may, however, be what is known as a qualified property in them, either (1) 'ratione impotentise of loci', (2) 'ratione soli and ratione privllegil', or (3) 'per industriam'. This qualified property is defeasible, for if the animal has not animus revertendi but resumes its wildness and is at large again and not under pursuit it is free and may be taken by another person. Thus the special right of property, called qualified property, if acquired ratione impotentise et loci, ratione soli or ratione privilesll is in substance an exclusive right to the possession of the wild animal which, in the case of a living animal, will continue while it has animus revertendi.'
The qualified rights in such wild animals under the various heads referred to above, have again been discuss-ed by the learned author. In paragraph 1255 at page 657, the learned author expresses the opinion that the owner of land, who has retained the exclusive right to hunt, take and kill animals ferae naturae on his own land, has a qualified property, i.e., ratione soli, in them for the time being while they are there. Again, in paragraph 1256 at page 653, the learned author dealing with 'property in wild animals when killed', states that though there is only qualified property in animals ferae naturae while they are alive, yet, if they are killed, or die, there is an absolute property in the dead animal, which vests in the owner or occupier of the land. In fact, it is also stated in paragraph 1257 that the absolute property which the owner or occupier of land, has in dead animals ferae nature, is not confined to animals killed by him or his agents, and if the animals are killed by trespasser, the trespasser will have no property in them. The expression 'ratione soli' signifies a right by virtue of ownership or occupation of the soil. Again, at page 661 in paragraph 1262, the learned author says that unless reclaimed, living animals ferae naturae are not the subject of ownership and they are not in the possession of the owner of the soil, he having, at most, a qualified property in them, of a right to reduce them to possession. And it is also stated that animals ferae naturae belong to the soil, savour of the realty, and until reduced into possession are pul-lius in bonis.
34. Again, in Halsbuay's Laws of England, III Edn., Vol. 18, at page 128, the learned author discusses 'Property in and Rights Over Games'. In paragraph 262 it is stated:
'The law of England does not admit a right of absolute property in game, which belongs to the class of animals ferae naturae, but it does intervene to protect private interests in game by limiting the right over it to certain classes of persons. These classes acquire their rights in one or other of two ways:-- (1) ratione privi-legii, that is, by special grant from the Crown; (2) ratione soli that is, by virtue of ownership or occupation of the soil'.
In the latter part of paragraph 262, the learned author says that the rights of the occupier of the soil have been admitted and extended until at the present day the right to kill and take game is recognised as being Incidental to the occupation of land, and that the property in such animals is therefore not absolute or actual, but qualified and potential. Again, at page 129 in paragraph 263, it is stated that property which, when the game is alive and free, is only qualified or potential, becomes absolute when the game is killed or otherwise reduced Into possession. It is also stated that the game, when dead or captured, belongs to the owner of the land where it is killed, and he can claim possession of it, and, if necessary, bring an action for trover.
35. The expression 'qualified property' is referred to in Black's Law Dictionary, IV Edn., at page 1383, as follows:
'Property in chattels which is not in its nature permanent, but may at some time subsist and not at other times, such for example, as the property a man may have in wild animals which he has caught and keeps, and which are his only so long as he retains possession of them'.
36. in the Penal Law of India by Hari Singh Gour, VII Edition, Vol. III, at page 1883 it is stated that in the case of animals ferae naturae the property in them can only be acquired if they are dead, tame or confined; otherwise they are presumed to be in their original state.
37. The House of Lords, in the decision reported in Blades v. Higgs, (1865) 11 HLC 621, had occasion to consider the legal position when a stranger without the permission of the owner of the property kills an animal on the latter's land and carries it away. The Lord Chancellor states at p. 631:
'Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil.'
Again, Lord Chelmsford, at p. 637, poses the question that arises for decision, namely, whether animals, ferae naturae, killed or reduced into possession by a trespasser on the land of another, become the property of the owner of the land. The learned Lord on the same page states:-
'By the civil law, the person who took or reduced into possession any animal ferae naturae, although he might be a trespasser in so doing, acquired the property in it. This appears clearly from the passage in the Institutes cited in the argument. If the same rule prevails in cur tew, when the rabbits in question were not the property of Lord Exeter, but of the poacher who took and killed them open His lordship's land.
This doctrine, however, as to the right of property in wild animals captured, seems never to have prevailed in our law to its full extent. With respect only to live animals in a wild and unreclaimed state, there seems to be so difference between the Roman and the Common Law.'
The position is again stated by the learned Lord at p. 338 as follows:
'With respect to wild and unreclaimed animals, there-fore, there can be no doubt that no property exists in them so long as they remain in the state of nature. It is also equally certain that when killed, or reclaimed by the owner of the land on which they are found, or by his authority, they become at once his property, absolutely when they are lulled, and in a qualified manner when they are rectaimed.'
Therefore, it will be seen that though there can be no property existing in an owner of a land in animals ferae naturae, so long as they remain in the state of nature, when such animals are killed or reclaimed by the owner of the land they become his property, absolutely when they are hilled, and in a qualified manner when they are reclaimed.
38. The question had also arisen for decision in the Madras High Court in Makath Unni Moyi v. Kandapunnl Nair, ILR 4 Mad 268. The question was whether an elephant which had fallen into a pit made by A in his own land, is his property, or is the property of X who removes the said elephant and takes it out of the property of A. Tha Madras High Court has held in the said decision that tha person who removed the elaphant has no right or title in the said elaphant, and the said elaphant is the property of the owner of the land in whose pit the elaphant was captured. Kernan, J, delivering the judgment on behalf of the Bench, refers to the decisions of the House of Lords in (1865) 11 HLC 621 referred to above, and, in particular, also refers to the principle laid down by the House of Lords that the owner of land has the exclusive right to take and kill all such animals, ferae naturae, as may, from time to time, be found upon his land; and that, as soon as such right is exercised, the animal caught of killed becomes the property of the owner of the soil. Therefore, the right of an owner of forest to capture wild elephants existing on his land, as also his title in the said elephant, when so captured, have been recognised by the Madras High Court in the decision referred to above, as early as 1880 when Madras Act I of 1873 was in force.
39. in Ramakrishna v. Unni Cheik, ILR 16 Mad 280, which again, was rendered in 1892, by a Division Bench, the Madras High Court has recognised the right of the owner of forest to assign his right to capture wild elephants existing on the said forest. There is another Division Bench decision of the Madras High Court, reported in Manavikraman Thirumulpad v. Secy, of State for India, 7 Mad LJ 13. Though the actual decision rendered therein is not material for the present purpose, it will be seen that the decision renders support to the contention of Mr. Surianarayana Iyer, learned counsel for the petitioner, that the Government have at no time claimed any proprietary right as such in the wild elephants that existed on the property of jenmies in Malabar. It will be seen that in that decision, the jenmi, who owned certain forest lands, had entered into a karar with the Government, authorising the latter to fell timber on Kuttikka-nam. But the point to be noted is that the karar stipulated that the Government should not object to. the ienmt washing for gold or digging pits for the capture of elephants.
It is also seen that there was a subsequent notification issued under the Madras Forest Act; and that notification was being challenged before the Court. It is also seen that whatever may be the controversy on other matters, the Forest Settlement Officer, who was acting on behalf of the Government in that matter, though he refused to offer any commutation for certain other rights claimed by the jenmi, accepted the claim for compensation from the owner of the forest, namely the jenmi for his right of washing for gold and digging pits for capture of elephant, becausa the Madras Government itself was a party to tha karar entered into with the jenmi and the Government had clearly recognised the right of the owner of private forests in Malabar to dig pits and capture elephants. No dispute appears to have been raised by the Government in those proceedings regarding either the right of the owner of the forest to capture elephants or regarding the title of the owner of such forest in respect of the elephants so captured. Government also did not lay any claim, either by virtue of its sovereign rights or as a trustee for the people in respect of wild animals ferae naturae in private land.
40. The decision of the Madras High Court in ILR 4 Mad 268, as well as the principles laid down by the House of Lords in (1865) 11 HLC 621 have been quoted with approval in an unreported Division Bench decision of this Court in A. S. No. 681 of 1954 (M) (Ker). M. S. Menon, J., (as he then was), speaking for the Court, has referred to the position in law that the owner of land has the exclusive right to take and Kilt all such animals --ferae naturaei -- as may from time to time, be found upon his land, and as soon as this right is exercised the animal caught or killed becomes the absolute property of the owner of the soil. Based upon these decisions, Mr. Surianarayana Iyer, learned counsel for the petitioner urged that the position is now well established that the Government have no right as such, in respect of wild animals ferae naturae found in private forests, and the rights of the owers of such lands in the manner indicated above, have been recognised. Therefore the learned counsel urged that the provisions of !he statute, which are under attack, are expropriatory and have to be struck down.
41. The learned Government Pleader, no doubt, has referred me to the decision of the American Supreme Court reported in Geet v. State of Connecticut, (1896) 161 US 519 : 40 Law Ed. 793. No doubt, the American law appears to be slightly different. In that decision the attach was against a particular piece of legislation prohibiting the killing of certain birds during a particular season, for the purpose of conveying the same beyond the limits of the State. There was also a prohibition regarding the transport of such birds killed within the State. That was the provision which came up for attack on the ground that it violates inter-State' Commerce clause of the Constitution of the United States. At p. 794 of the report it is stated:
'From the earliest traditions the right to reduce animals ferae naturae to possession has been subject to the control of the law giving power.' Again at p. 797, it is stated:'We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the state, not as proprietor but in its sovereign capacity, as the representative and for the benefit of all its people in common.'
Based upon these observations, the learned Government Pleader urged that in this country also the ownership of wild animals is in the State in its sovereign capacity and as the representative and for the benefit of all its people in common. Therefore, the State is entitled to make regulations, which may have even the effect of a total prohibition of the exercise of the rights lhat persons like the petitioners may have.
42. in my view, it is not possible to accept this contention of the learned Government Pleader, because even from the extract referred to above, it will be seen that emphasis is laid on the fact that the State is not the proprietor of the animals ferae naturae; but it can exercise only general regulatory powers by virtue1 of its sovereign capacity.
43. The learned Government Pleader also referred me to the passage in Corpus Mis Secundum, Vol. Ill, page 1087, wherein it is stated that
'the wild animals at large within its borders are owned by the State in its sovereign, as distinguished from Its proprietary, capacity, and neither such animals nor any parts thereof are subject to private ownership except in so far as the State may choose to make them so. Such animals become the subject of private ownership only so far as the people through their legislature may elect to make them so.....'
The learned Government Pleader has also referred me to a passage in American Jurisprudence, Vol. II, at page 694, to the effect
'In the United States the ownership of wild animals and fish not reduced to actual possession by private persons is in the people of the State in their collective sovereign capacity, or in the State as representing all the people'.
But it will be seen that at page 695 it is also stated that the State's ownership of wild animals is not such proprietary interest as will authorise a sale thereof, or the granting of special interest or special rights therein, but is solely for the purposes of regulation and preservation for the common use.
Even the position in America appears to be that the State has no proprietary interest in animals ferae naturae-but only has got a sovereign right to make regulations in the interests of the public. In this case also it must be stated in fairness to the petitioners, that none of them hat claimed any absolute right, as such, to indiscriminately kill or wound any wild animals that may be found on then? forest lands. The only right that they have claimed is the right to capture wild elephants found on their forest lands for the purpose of training and taming them so that they could be useful to them in the conduct of their timber trade.
44. Whatever it is, so far as this country is concerned, the position is well established by the various decisions referred to above, that the State has no proprietary interest in the wild animals ferae naturae, and the right of an owner of land, though it is called qualified right, has been recognised from very early times. The right to hold a fair has been considered to be a fundamental right under Article 19(1)(f) and (g) of the Constitution, by the Supreme Court in the decision reported in Ganapati Singhji v. State of Ajmer, (S) AIR 1955 SC 188, Again, the right to capture fish in a stream in the property of an owner, has been considered to be a right in immovable property, in Ananda Behera v. State of Crisis, (S) AIR 1956 SC 17.
45. Though in this case in view of the stand taken by the State, it may not be strictly necessary to consider the question as to whether the provisions impugned amount to reasonable restriction in the interests of the public, it is necessary to note as to what exactly a reasonable restriction is, as referred to by the Supreme Court in Chinthaman Rao v. State of M. P., AIR 1951 SC 118, at p. 119, wherein it is stated:
'The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in. the interests of the publlo. The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dict-ates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.'
No doubt, in Narendra Kumar v. Union of India, AIR 1960 SC 430 it is laid down that restriction may include cases of prohibition also. But the Supreme Court has also stated that when the restriction reaches the stage of prohibition, special care has to be taken by the Court to see that the test of reasonableness is satisfied and that greater the restriction, the more the need for scrutiny by the Court. In considering the test of reasonableness, the Supreme Court has observed at p. 436 of the report as follows:
'In applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused; to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public.'
Pausing here for a minute, it must be stated that in this case, the State has not placed any materials what-soever to enable this Court to consider whether the plea of reasonable restriction raised in this case is made out or not. In Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305, Mudholkar, J. speaking for the Court has laid down that the constitutional guarantee of fundamental rights safeguarded under the Constitution will have to to interpreted in a very broad manner. The learned Judge at p. 311, states as follows:
'It must be borne in mind that the Constitution must be interpreted in a broad way, and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental, and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure, subject, of course, to permissible restrictions.'
46. Therefore, to conclude on this aspect : The claim of the State that animals ferae naturae within the State belong to the people in their collective sovereign): capacity, cannot be accepted. No such recognition of claim was made by the Madras Wild Elephants Preservation Act, 1873, which continued to be in force in the Malabar area, till that statute was repealed by Section 85 of the Kerala Forests Act, 19'61. No such recognition was given by the Central Act, namely the Elephants Pressrva-tion Act, (Central Act VI of 1879). The Madras decisions also do not recognise. The object and purport of these two enactments were totally different, and the right of the State to the captured elephants, as of right, was not recognised at all. In my view, even Section 50 of the Kerala Act clearly shows that the State itself was aware that they do not have any proprietary right in any wild elephant captured, or the tusks and teeth of any wild elephant killed, because it is by that Section that a wild elephant captured, or the tusks and teeth of a wild elephant killed, shall be regarded as property of the Government. Therefore that clearly shows that the Government had no rights prior to that stage.
47. I have already indicated that the various alle-gations contained in the affidavit of the petitioners that they are carrying on business in timber, and as part of that business they have to catch elephants for taming and training them in dragging the timber, have not been controverted by the State. Admittedly there is no provision, for compensation payable by the State in respect of the elephants captured and the tusks and teeth of a wild elephant killed Which are regarded as property of the State. Therefore, there has been a total deprivation of the rights of persons like the petitioners in respect of their lawful exercise of their rights as owners of forest lands. Therefore, in consequence, it follows that the provisions of Articles19(1) (f) and (g), and 31 Of the Constitution have been very grossly violated. I have already indicated that there is no indication in the counter affidavit filed on behalf of the State as to how these restrictions are reasonable and in the interests of general public. Therefore, the provisions contained in Sections 48 to 51 under Chapter VII of the Kerala Forest Act, 1961, will have to be declared void under Article 13(2) of the Constitution inasmuch as they affect the fundamental rights of the petitioners,
48. Then the question naturally arises as to whe-ther any of the impugned Sections, or any part of the Sections contained in Chapter VII, can be salvaged. No. doubt, none of the petitioners claim any absolute right in themselves to indiscriminately kill or wound any wild elephant found in their forests. Their grievance is that their right to capture and reduce to their possession the wild elephants for the purpose of training them to drag. the timber in connection with their timber business, should he upheld by this Court. But the question is whether the various provisions could be allowed to stand in so far as they prohibit killing and wounding of wild elephants and making it an offence. Regarding the several principles to be borner in mind by the Court to consider whe-ther the impugned provisions are severable or separable guidance is to be found in the principles laid down by the Supreme Court in R. M. D. C. v. Union of India, (S) AIR 1957 SC 628 as well as the recent decision of the Supreme Court reported in Supdt. Central Prison, Fateh-garh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633. One principle that emerges from the said decisions is that If the provisions of a Section are so intricably mixed up that it is not possible to apply the doctrine of severabl-lity so as to enable the Court to affirm the valid part of it and to reject the rest, then the entire section will have to be held invalid.
Though the petitioners may not kill or wound wild elephants intentionally, nevertheless the killing or wound-ing can take place when they exercise their right to capture wild elephants from their forests. Even in such a case, the prohibition contained in Section 48 of the Kerala Act, as well as the penal provision contained in Section 49 will come into play. Section 50, it will be seen, is exproprietary, because what in law, is the property of the land owner is straightaway to be regarded as the property of the Government. The grant of permits for shooting or capturing wild elepants provided under Section 51, is absolutely, in my opinion, illusory, because even If the shooting or capturing is done on the basis of those permits, the person concerned will be duly exempt from the operation of Section 49 of the Act, i.e. prosecution and the property in the elephants pass on to the State, with the result that the land owner does not got any benefit by obtaining a licence. This is absolutely an Illegal provision. Therefore, it will be seen that the entire group of Sections, namely Sections 48 to 51 in Chapter VlI of the Kerala Forest Act, 1961, (Act IV of 1962), will have to be struck down as unconstitutional and void and as infringing the fundamental rights of the petitioners.
49. in this connection it may be noted that the Supreme Court has upheld the validity of the Kerala Agrarian Relations Act, 1960, Act IV of 1961, so far as one part of the Kerala State is concerned, namely the Cochin area. See Purushothaman Nambirdiri v.. State, 1962 Ker LT (SC) 1 : (AIR 1962 SC 694). The Supreme Court struck down the said Act regarding another part of the Kerala State, namely the area forming part of South Kanara District in the former Madras State, which came into the Kerala State. See Kunhikoman v. State of Kerala, 1962 Ker LT (SC) 42 : [AIR 1962 SC 723). Similarly, a Full Bench of this Court, in. the decision reported in Suktia-puram Sabhayogam v. State of Kefala, 1962 Ker LT 924 : (AIR 1963 Ker 101 (FB)), struck down the same Act as unconstitutional with reference to the ryotwari lands in the Malabar area. Again, another Full Bench of this Court in the decision reported in Govindaru Nambudiripad. v. State of Kerala, 1962 Ker LT 913 : (AIR 1963 Ker 86 FB), struck down the said Aet as unconstitutional, regarding particular tenures in the Travancore area.
50. Following these decisions, I hold that Sections 48 to 51 inclusive, in Chapter VII of the Kerala Forests Act. 1961, (Act IV of 1962), are void and unconstitutional under Article 13(2) of the Constitution, so far as private forests and their owners, in the Malabar area are concerned.
51. Now I will deal with the reliefs that have to be granted to the various petitioners. In O. P. 1097/62, 1106 to 1110 inclusive, of 1962, and 1312/62, the petitioners have prayed for declaring those provisions of the Kerala Forest Act, 1961 as unconstitutional. These writ petitions are allowed in terms of the prayer contained therein.
52. in 0. P. No. S75/62, 1282/62, 675/C3, 856/63 and 858/63, notices have been issued by the concerned forest officials to the respective petitioners to surrender the elephants captured by them from their private forests, and also to show cause as to why prosecution should not be launched as against them. It follows that these notices will have to be quashed, and the writ petitions allowed.
53. in 0. P. 1191/63 a notice has been issued to the petitioner therein by the forest officials calling upon him to attend an inquiry, proposed to be held in connection with the capture of elephants by the petitioner In his own land. Here again, it follows that no action can be taken by the respondents therein, and the writ petition has to be allowed.
54. in 0. P. 1936/62 it is seen that the elephant, which was shot, actually died in the private forest of the petitioner therein. The petitioner appears to have surrendered the tusks and teeth of the elephant, to the forest officials and made a request to the authorities to return the same to him. But the Collector has declined to return the same on the ground that they are the pro-perty of the Government, as per Section 50 of the Kerala Forests Act Here again, it follows that the stand taken by the Collector cannot be accepted, and a writ of mandamus, as prayed for will issue.
55. in the result, all the writ petitions are allowed, in the manner indicated above. Parties wilt bear their costs. writ petitions themselves have all been disposed of all the stay petitions are dismissed.