Full Judgment Text
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CASE NO.:
Appeal (civil) 5519 of 1994
PETITIONER:
CHIEF FOREST CONSERVATOR (WILD LIFE) AND ORS.
RESPONDENT:
NISAR KHAN
DATE OF JUDGMENT: 18/02/2003
BENCH:
V.N. KHARE CJ S.B. SINHA & AR. LAKSHMANAN
JUDGMENT:
JUDGMENT
2003 (2) SCR 196
The following Order of the Court was delivered :
This appeal is directed against a judgment and order dated 27th August,
1993 passed by a Division Bench of the Allahabad High Court in Civil Misc.
Writ No. 36693 of 1991 whereby and whereunder a writ petition filed by the
respondent herein, inter alia, for issuance of a writ in the nature of
mandamus directing the appellants herein to grant a licence for carrying on
business as a dealer in birds which are bred in captivity, was allowed.
Before the High Court, the contention of the respondent was that he had
been dealing in birds of several varieties specified in the Schedule IV
appended to the Wild Life (Protection) Act 1972 (hereinafter called "the
Act") wherefor he had applied for and had been granted a licence which was
valid upto 31st December 1990. For renewal of the said licence for the year
1991, he filed an application but the same had not been granted. According
to the respondent he had mainly been dealing in Munias, Parakeets, Mainas
and Buntings which are found in abundance in the State of Uttar Pradesh and
as such no prohibition can be imposed on his business in captive birds by
the appellants in terms of the provisions of the Act or otherwise.
The contention of the appellants herein on the other hand, is that having
regard to the Amendment made in Section 9 of the Act as the term ’hunting’
includes ’trapping’ of birds as specified in Schedule IV appended to the
Act, no licence for dealing in them can be lawfully granted. It was further
contended that the appellants served a notice on or about 4th December,
1991 directing the respondent to dispose of all the birds in his possession
before 31st December 1991.
The High Court upon consideration of the respective contentions made by the
parties held that the respondent herein was entitled to carry on business
in the birds specified in Schedule IV of the Act and as such the matter
relating to grant of licence ought to have been considered. The High Court
directed as under:
"For the reasons, the petitioner partly succeeds and is allowed; the
impugned notice dated 4.12.1991 (Annexure "5" to the writ petition) is
quashed, the respondents are restrained from interfering in the business of
the petitioner dealing in the birds, specified in Schedule IV to the Act
and the respondents are further directed to grant licence to the petitioner
for carrying on business as a dealer in the birds as specified in Schedule
IV to the Act, which are bred in captivity either by the petitioner himself
or which he procures from other breeders, within three months from the date
a proper application is made in that behalf by the petitioner fulfilling
all the conditions, prescribed by the aforesaid Rules of 1974."
Mr. Y. P. Singh, learned counsel appearing on behalf of the appellants
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would submit that a bare perusal of the writ petition filed by the
respondent herein would clearly indicate that he in his pursuit of dealing
in birds categorically admitted that the birds are required to be trapped
and as such he was not entitled to carry on his business.
Mr. Mukul Rohtagi the learned Addl. Solicitor General appearing as Amicus
Curias inter alia, submitted that although dealing in birds in captivity as
such is not prohibited, no licence can be granted in terms of Section 44 of
the Act if by reason thereof the licensee would violate any of the
provisions of the Act.
The Act was enacted to provide for the protection of wild animals, birds
and plants and for matters connected therewith or ancillary or incidental
thereto.
Section 2(1) of the Act defines ’animal’ to mean amphibians, birds, mammals
and reptiles and their young, and also includes, in the case of birds and
rentfles their eggs. ’Captive animals’ has been defined in Section 2(5) of
the Act to mean any animal, specified in Schedule I, II, III or IV, which
is captured or kept or bred in captivity. The term ’dealer’ has been
defined in Section 2(11) to mean any person who carries on the business of
buying and selling any captive animal, animal article, trophy, uncured
trophy meat or specified plant.
’Hunting’ has been defined in Section 2(16) of the Act as under:
"hunting", with its grammatical variations and cognate expressions
includes;
(a) capturing, killing poisoning, sharing and trapping of any wild animal
and every attempt to do so.
(b) driving any wild animal for any of the purposes specified in sub-
clause (a),
(c) injuring or destroying or taking any part of the body of any such
animal or, in the case of wild birds or reptiles, damaging the eggs of such
birds or reptiles or disturbing the eggs or nests of such birds or
reptiles;
’Wild animal’ has been defined in Section 2(36) of the Act to mean any
animal found wild in nature and includes any animal specified in Schedule
1, II, III, IV or V, wherever found.
Section 9 of the Act underwent an amendment by Act 44 of 1991 w.e.f.
2.10.1991 which provides that no person shall hunt any wild animal
specified in Schedules I, II, III and IV except as provides under section
11 and Section 12. Section 11 provides for grant of permission for hunting
of wild animals in certain cases, whereas Section 12 provides for grant of
permit for special purposes.
’Trapping’ of birds which comes within the purview of the meaning of the
term ’hunting’ is thus prohibited in terms of Section 9 of the Act.
It is not in dispute that the birds which the respondent had been dealing
in, find place in Item Nos. 9, 44, 45 and 50 of Schedule IV appended to the
Act. Section 44 of the Act prohibits any person from commencing or carrying
on business, inter alia, as a dealer in captive animals subject to the
provisions of Chapter 5A except under in accordance with the licence
granted under sub-section (4) of Section 44 thereof, which reads thus.
"(4)(a) Every application referred to in sub-section (3) shall be made in
such form and on payment of such fee as may be prescribed to the Chief Wild
Life Warden or the authorised officer.
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(b) No licence referred to in sub-section (1) shall be granted unless the
Chief Wild Life Warden, or the authorised officer having regard to
antecendents and previous experience of the applicant, the implication
which the grant of such licence would have in the status of wildlife to
such other matters as may be prescribed in this behalf and after making
such inquiry in respect of those matters as may think fit, is satisfied
that the licence should be granted."
Sub-section (6) of Section 44 provides that every licence granted
thereunder would be valid for one year would not be transferred and would
be renewable for a period nor exceeding one year at a time.
Section 63 of the Act provides for the rule making power of the Central
Government. Clause (i) of sub-section (1) of Section 63, inter alia,
empowers the Central Government to make rules in relation to the matters
covered under clause (b) of sub-section (4) of Section 44. Section 64 of
the Act empowers the State Government to make rules. Clause (d) of sub-
section (2) of Section 64 provides for the conditions subject to which any
licence or permit may be granted under the Act.
It is not in dispute that the Central Government in exercises of its power
conferred upon it under section 63 of the Act made the Wild Life
(Transactions and Texidermy) Rules, 1973, providing for the mode and manner
under which licence can be granted in terms of the Act.
The Central Government also made rules known as the Wild Life (Protection)
Licensing (Additional Matters for Consideration) Rules, 1983; Rule 3
whereof reads thus:
"Additional matters for consideration for grant of licence under section 44
of the Act - For the purposes of granting a licence referred to in sub-
section (1) of section 44 of the Act, the Chief Wild Life Warden or the
authorised officer, as the case may be, shall in addition to the matters
specified in clause (b) of sub-section (4) of that section have regard to
the following other matters, namely,..
(i) capacity of the applicant to handle the business concerned with
reference to facilities, equipment and suitability of the premises for such
business.
(ii) the source and the manner in which the supplies for the business
concerned would be obtained;
(iii) number of licences for the relevant business already in existence in
the area concerned;
(iv) implications which the grant of such licence would have on the hunting
or trade of the wild animals concerned.
Provided that no such licence shall be granted if the said implications
relate to any wild animal specified in Schedule I or Part II of Schedule II
to the Act, except with the previous consultation of the Central
Government."
It is now well settled that when rules are validly framed they should be
treated as a part of the Act. A conjoint reading of the provisions of the
Act and the Rules as referred to hereinbefore, leaves no manner of doubt
that although grant of licence in respect of birds in captivity is not
altogether prohibited but before grant of licence the licensing authority
is under a statutory obligation to ensure that thereby inter alia the
provisions of Section 9 of the Act as also the provisions of the Rules are
not violated. The Act, as noticed hereinbefore, seeks to protect wild
animals. Any provision contained in the Act aiming protection of wild
animals, must necessarily be strictly complied with. When hunting of the
birds specified in Schedule IV is prohibited, there cannot be any doubt
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whatsoever that no person can be granted a licence to deal in birds in
captivity which are procured by hunting which, as indicated hereinbefore,
would also include trapping. It is one thing to say that by reason of
breeding of birds in captivity their population is raised, but it is
another thing to say that the birds are trapped before they are made
captive so as to enable the licensee, to deal in them. The latter is
clearly prohibited. Rule 3 of the 1983 Rules clearly postulates that the
licensing authority is not only required to consider the source and the
manner in which the supplies for the business concerned would be obtained
but also is required to bestow serious consideration as regards
implications which the grant of such licence would have on the hunting or
trade of the wild animals concerned. When the licensing authority arrives
at a finding of fact having regard to the past transactions of a licensee
that it cannot carry on any business by reason of breeding of captive birds
but necessarily therefor he is to hunt, he would be justified in refusing
to grant a licence in terms of the provisions of the Act. Unless the
provisions of the Act and the Rules are construed strictly and in the
manner as observed hereinbefore, the very purpose for which the Act has
been enacted would be lost.
Having regard to the purpose and object which the Act seeks the achieve, we
have no other option but to hold that the High Court has proceeded on a
wrong premise by issuing the impugned directions.
The High Court, in our opinion, committed a manifest error in directing the
appellants herein to grant licence in favour of the respondent. As the
licensing authority in terms of the provisions of the Act and the Rules
framed, thereunder is required to consider the application filed by an
applicant and satisfy himself that in the event any licence is granted in
favour of the applicant, he is capable of strictly complying with the
provisions of the Act, the Rule as also the terms and conditions of the
licence laid down therefor. Only in the event of his being satisfied upon
considering the objective criteria laid down therefor in the statute, he
may issue a licence and as such it was not within the domain of the High
Court to issue the impugned direction. It is set aside accordingly.
For the reasons aforementioned, while allowing the appeal in part, we
direct that in the event the respondent herein files an application for
grant of licence for dealing in captive birds, the same shall be considered
by the Licensing Authority upon satisfying himself about the capability of
the respondent as regards strict compliance of the Act the Rules and/or the
relevant terms and conditions of the licence as also the fact as to whether
by reason of such grant any provisions of the said Act would be violated or
not.
This appeal is, thus, disposed of, but in the facts and circumstances of
this case there shall be no order as to costs.