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by sayum
26 August 2026 1:49 PM
“State Cannot Confer Legality by Bypassing the Gazette—Notifications Under Wildlife Act Must Be Published to Exist in Law” - Division Bench of the Kerala High Court comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian delivered a crucial verdict , allowing two Public Interest Litigations challenging the grant of ownership certificates for ivory artifacts to a prominent film actor under the Wild Life (Protection) Act, 1972. The Court held that notifications issued under Section 40(4) of the Act, which enabled the declarations and subsequent certificates, were void ab initio as they were not published in the Official Gazette.
Refusing to legitimise executive shortcuts in the realm of environmental and wildlife protection, the Court emphatically ruled:
“If a statutory power is not exercised in the manner prescribed under the Act, then that power cannot be seen as having been exercised at all.”
“Electronic or Press Publicity Cannot Substitute Gazette Notification—State’s Defence Rejected”
“What is not done in the manner prescribed is not done at all” — Court follows Nazir Ahmad principle
The petitions concerned two government orders issued in 2015 and 2016 permitting the respondent actor to declare possession of two pairs of ivory tusks and 13 ivory artifacts. Based on these permissions, the State Forest Department issued ownership certificates under Section 42 of the 1972 Act.
The core legal issue raised was that the impugned notifications under Section 40(4), which enabled the declarations, were never published in the Official Gazette, a mandatory requirement under the statute.
Rejecting the State’s claim that publication on the website and press releases sufficed, the Court held:
“When the statutory provisions clearly state that the publication of the notification must be in the official gazette, the publication has to be in the official gazette of the State either in print format or in the electronic format.”
Further, citing Nazir Ahmad v. King-Emperor [AIR 1936 PC 253] and I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer [(1996) 6 SCC 634], the Bench clarified that:
“The effect of not exercising a statutory power strictly in the manner prescribed is that the notifications will have to be seen as ‘stillborn’ and unenforceable.”
Ivory Possession Regularised Despite Pending Criminal Proceedings
The dispute arose from permissions granted to the respondent actor under Section 40(4) of the Wildlife (Protection) Act, allowing him to declare ivory articles long after the statutory deadline had lapsed. Subsequently, ownership certificates under Section 42 were issued, effectively legitimising the possession and providing immunity from prosecution.
At the time of the State’s action, criminal proceedings were already pending against the actor for unlawful possession of ivory under the Forest and Wildlife laws. The petitioners, invoking public interest, challenged the legality of the permissions and certificates as a misuse of executive power to favour an influential individual.
Though a direction to expedite the pending criminal trial was sought, the Court declined to interfere in that matter, observing that the criminal case was already under active consideration by the appropriate forums.
Gazette Publication Is Not a Formality—It’s a Jurisdictional Requirement
The Court’s reasoning pivoted around the strict language of Section 40(4), which authorises the State Government to permit post-facto declarations only by notification, a term explicitly defined in Section 2(22) of the Act to mean notification published in the Official Gazette. Failure to comply renders the notification legally void.
In rejecting the argument that alternate publicity like website postings or press coverage can be deemed sufficient, the Bench held:
“We cannot venture to provide any alternate meaning to the term ‘gazette’ as contended by the respondents… The notifications are illegal and unenforceable from inception.”
Additionally, the Court ruled that such notifications cannot be retrospectively regularised through later publication or by invoking the de facto doctrine:
“The de facto doctrine cannot be invoked in respect of notifications that are declared illegal and unenforceable from the very inception.”
Petitioners' Locus Standi Upheld: PIL Is Not Political When It Exposes Legal Mala Fides
The State and the actor’s legal team raised serious objections to the maintainability of the PILs, arguing that the petitioners were politically motivated and lacked bona fides. However, the Court found the petitions raised legitimate questions about statutory compliance, holding:
“The object of the writ petitions was essentially to remedy a genuine public wrong or injury and we do not see the writ petitions as being driven by personal vendetta or malice.”
The Bench drew from the Supreme Court’s decision in Noida Toll Bridge Co. Ltd. v. Federation of NOIDA RWAs [(2025) 6 SCC 717] to reinforce that public interest litigation is maintainable when it seeks to challenge executive action that violates mandatory legal provisions.
Ownership Certificates Quashed—Fresh Notifications Permitted If Lawfully Issued
Concluding its detailed judgment, the Court quashed:
The Bench, however, clarified that the State remains free to issue a fresh notification under Section 40(4) of the Act, provided it complies with all statutory requirements, including publication in the Official Gazette.
Importantly, the Court refrained from commenting on whether the actor's possession of the ivory was otherwise lawful, recognising that such findings might prejudice his ongoing criminal trial.
A Victory for Statutory Discipline and Wildlife Law Enforcement
The Kerala High Court's decision is a strong affirmation of the rule of law and statutory discipline in environmental governance. It reinforces the idea that even well-intentioned or high-profile beneficiaries cannot bypass procedural mandates. In the sphere of wildlife protection, where contraband and illegal trade often thrive on systemic loopholes, this judgment sends a message that legal requirements—especially those that determine jurisdiction—cannot be diluted under any pretext.
As the Bench sternly observed: “The statutory requirement relating to publication… is mandatory, and where not complied with, the act itself is rendered invalid.”
Date of Decision: 24th October 2025
