‘Illegal, unforceable’: Here’s why Kerala HC struck down certificates granted by state to actor Mohanlal for possession of ivory

Here are the key findings in the bench’s verdict:

• Not impressed by Mohanlal saying the publication of the notifications in electronic media is sufficient for compliance under the Wildlife Protection Act, 1972.
• When statutory provisions clearly ask for publication of the notification in the official gazette, the publication has to be in the official gazette of the state, either in print format or in electronic format.
• Can’t accept the state admitting that notifications were not published in the official gazette and justifying adequate publicity was given to the notifications and no prejudice anyone, and non-publication was only a technical irregularity with no legal consequence.
• Courts must look beyond the surface to assess whether the litigation has been genuinely initiated in the interest of the public or as a result of mischief. Petitioners were essentially aggrieved by the legal mala fides occasioned by the state in exercising a power that they have in favour of the actor without following the mandatory procedure.
• Government orders of December 16, 2015, and February 17, 2016, are void ab initio (from the beginning) and legally unenforceable besides ownership certificates of January 16 and April 6, 2016, issued to the respondent actor.

Contention of petitioners

• Notifications issued by the state that allowed the actor to submit declarations as mandated under Section 40(1) of the 1972 Act in respect of the ivory tusks and artefacts in his possession were not published in the official gazette.
• Actor cannot claim immunity from prosecution or a right to ownership certificates for the ivory tusks and artifacts due to the invalid notifications.
• Even if the notifications are seen as valid, the authorities under the 1972 Act could not have issued a valid ownership certificate to the actor as the enquiry contemplated under Sections 41 and 42 of the 1972 Act read with Rules 35 to 37 of the Kerala Wild Life (Protection) Rules, 1978 would have rendered it impossible to grant the ownership certificates to the actor who could not prove the possession of ivory was legal, especially as criminal cases are pending against him for the unlawful possession.

Arguments by state

• Additional director general of prosecution Grashious Kuriakose argued that only because the notifications issued were not published in the official gazette, they would not be considered as “illegal or unenforceable”.
• Notifications provided sufficient publicity since it was circulated widely among the parties concerned and the press.
• No procedure for objecting to the specific individual’s declaration in the gazette; hence, the lack of its publication did not cause any legal prejudice.
• No definition of ‘Official Gazette’ in the 1972 Act. Therefore, the definition provided under the General Clauses Act, 1897, which recognises gazettes of states (like Kerala) as official gazettes, shall apply.

Mohanlal’s submissions

• Only because the notifications issued in terms of Section 40(4) of the 1972 Act were not notified in the official gazette, they would not be illegal or unenforceable.
• Notifications were given due publicity by circulating it among all those mentioned in the notification itself, as also to the press.
• No scope for anyone to object to the declaration being made by an individual person, the absence of publication in the gazette could not be seen as causing prejudice to any person or to the general public.

The bench, however, refrained from dealing with the question over the manner in which the power to issue the ownership certificates in question was exercised.

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