CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V.
NISAR KHAN (2003) 4 SCC 595
NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
PROJECT FOR ENVIRONMENT
LAW
9TH SEMESTER
CASE ANALYSIS
CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN
(2003) 4 SCC 595
SUBMITTED BY: SUBMITTED TO:
HARSH SAHU PROF. RAJIV KHARE
2017BALLB88
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
TABLE OF CONTENTS
S. No. Topics Page No.
1. Acknowledgement 3
2. Facts of the Case 4
3. Relevant Laws 5-6
4. Advocates for respective parties and names of judges 7
5. Arguments put forth 8-9
6. Issues involved 10
7. Judgment 11-12
8. Conclusion 13
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my guide Prof.
Rajiv Khare for his exemplary guidance, monitoring and constant encouragement throughout
this project work. The blessing, help and guidance given by him, time to time shall carry me a
long way in the journey of life. It has been my pleasure to include his inputs in whatever way
I could and the researcher considers himself privileged and blessed to have gotten the
opportunity to have made this work under his aegis. Lastly, I would like to express my
greatest gratitude to the people who have helped & supported me throughout my project. I
thank my batch-mates, seniors and friends for their constant encouragement without which
this assignment would not be possible.”
HARSH SAHU
2017BALLB88
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
FACTS OF THE CASE
The appellant was granted a licence for carrying on business as a dealer in birds which
are bred in captivity. His application for renewal of the licence for the next year was
rejected. In lieu of the same he filed an application1 before the Allahabad High Court
for issuance of a writ in the nature of mandamus directing the appellants to grant the
license.
According to the respondents 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 Wildlife Protection Act 2 or otherwise. The
contention of the appellants herein, on the other hand, is that having regard to the
amendment made in Section 93 of the Act as the term “hunting” includes “trapping” of
birds as specified in Schedule IV appended to the Act 4, no licence for dealing in them
can be lawfully granted. It was further contended that the appellants served a notice on
or about 4-12-1991 directing the respondent to dispose of all the birds in his
possession before 31-12-1991.
The High Court held that the respondents are restrained from interfering in the
business of the petitioner dealing in the birds, specified in Schedule IV to the Act 5 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
after complying with the aforesaid Rules of 19746.
1
Writ No. 36693 of 1991
2
https://legislative.gov.in/sites/default/files/A1972-53_0.pdf
3
https://www.indiacode.nic.in/handle/123456789/1726
4
https://legislative.gov.in/sites/default/files/A1972-53_0.pdf
5
Wildlife Protection Act 1974
6
https://parivesh.nic.in/writereaddata/GSR%20348.pdf
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
RELEVANT LAWS
Wildlife Protection Act 19727
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 reptiles,
their eggs.
Section 2(5) of the Act defines “captive animals” which are 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.
Section 2(16) defines hunting as:
a) capturing, killing, poisoning, snaring 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;”
Section 2(36) defines “Wild Animal” as any animal found wild in nature and
includes any animal specified in Schedule I, II, III, IV or V, wherever found.
Section 9 of the Act underwent an amendment8 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 provided under Section 11 and Section 12.
Section 11 provides for grant of permission for hunting of wild animals in
certain cases
Section 12 provides for grant of permit for special purposes.
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.
7
https://legislative.gov.in/sites/default/files/A1972-53_0.pdf
8
http://cza.nic.in/uploads/documents/guidelines/english/WLP%20Amendment%20Act-1991.pdf
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
The Wild Life (Protection) Licensing (Additional Matters For Consideration)
Rules, 19839
Section 44(4)(a) provides that 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.
Clause (b) provides that No licence referred to in sub-section (1) shall be
granted unless the Chief Wild Life Warden or the authorised officer having
regard to the antecedents and previous experience of the applicant, the
implication which the grant of such licence would have on the status of wildlife
and to such other matters as may be prescribed in this behalf and after making
such inquiry in respect of those matters as he may think fit, is satisfied that the
licence should be granted
9
http://www.bareactslive.com/ACA/ACT1076.HTM
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
ADVOCATES FOR RESPECTIVE PARTIES AND NAMES OF
JUDGES
Judges:
Justice VN Khare
Justice SB Sinha
Advocates who appeared in the case:
Mukul Rohatgi (Additional Solicitor General, also Amicus Curiae)
AK Shrivastava (for respondents)
YP Singh (for Appellants)
Ajay K Agarwal
C Siddarth
Sushil Kumar Jain
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
ARGUMENTS PUT FORTH
Arguments advanced by Appellants:
1. They submitted that the Respondent 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.
2. Mr Mukul Rohatgi, appearing as amicus curiae, 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 Act10 if by reason thereof the licensee
would violate any of the provisions of the Act11.
3. 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.
4. Section 9 of the Act underwent an amendment12 by Act of 1991 w.e.f. 2-10-
1991 which provides that no person shall hunt any wild animal specified in
Schedules I13, II14, III15 and IV16 except as provided 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.
5. The respondent had been dealing in animals which find place in Items 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 5-A except under and in
accordance with the licence granted under sub-section (4) of Section 44 thereof
Arguments advanced by respondents:
1. He submitted that he had been dealing in birds of several varieties specified in
Schedule IV appended to the Wild Life (Protection) Act, 1972 where for he had
applied for and had been granted a licence which was valid up to 31-12-1990.
10
https://indiankanoon.org/doc/847093/
11
https://legislative.gov.in/sites/default/files/A1972-53_0.pdf
12
http://cza.nic.in/uploads/documents/guidelines/english/WLP%20Amendment%20Act-1991.pdf
13
https://www.advocatekhoj.com/library/bareacts/wildlife/schedule1partI.php?Title=Wild%20Life
%20(Protection)%20Act,%201972&STitle=Schedule-1%20Part-I
14
https://www.advocatekhoj.com/library/bareacts/wildlife/schedule2partI.php?Title=Wild%20Life
%20(Protection)%20Act,%201972&STitle=Schedule-2
15
https://www.advocatekhoj.com/library/bareacts/wildlife/schedule3.php?Title=Wild%20Life%20(Protection)
%20Act,%201972&STitle=Schedule-3
16
https://www.advocatekhoj.com/library/bareacts/wildlife/schedule4.php?Title=Wild%20Life%20(Protection)
%20Act,%201972&STitle=Schedule-4
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
2. 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.
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
ISSUES INVOLVED
1. Does Section 2(16) of Wildlife Protection Act, 1972 include “trapping” under
the meaning of “hunting”?
2. What is the scope of judicial review under Section 44 of Wildlife (Protection0
Licensing (Additional Matters for Consideration) Rules 1983?
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
JUDGMENT
1. The Central Government in exercise of its power conferred upon it under
Section 63 of the Act17 made the Wild Life (Transactions and Taxidermy)
Rules18, 1973, providing for the mode and manner under which licence can be
granted in terms of the Act.
2. 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.
3. The Act 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 no person can
be granted a licence to deal in birds in captivity which are procured by hunting
which would also include trapping.
4. 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.
5. Rule 3 of the 1983 Rules19 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.
6. 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 there for he is to hunt, it would be
justified in refusing to grant a licence in terms of the provisions of the Act.
7. As the licensing authority in terms of the provisions of the Act and the Rules
framed there under 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
Rules as also the terms and conditions of the licence laid down there for. Only
in the event of his being satisfied upon considering the objective criteria laid
down there for in the statute, he may issue a licence and as such.
8. The Court set aside the judgment of the High Court and disposed of the
Appeal.
17
https://legislative.gov.in/sites/default/files/A1972-53_0.pdf
18
http://www.bareactslive.com/ACA/ACT1074.HTM
19
http://www.bareactslive.com/ACA/ACT1076.HTM
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
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CASE ANALYSIS OF CHIEF FOREST CONSERVATOR (WILDLIFE) V. NISAR KHAN (2003) 4 SCC 595
CONCLUSION
The judgement rightfully upheld the purpose for which the Act was enacted that is “to
save endangered species.” By enlarging the meaning of Sec 2(16) of Wildlife
Protection Act 1972 to thereby include “trapping” within the meaning of “hunting”
was a right discourse to toward the original purposes of the Act.
The judgment in a way also enlarged the powers of Licensing Authority that it the
Government, by upholding its right to scrutinise the application of the applicant
seeking licence, the scrutiny may even go to the extent of analysing past records and
work done. This decision serves two purposes, on the one hand it gives powers to the
authorities who have requisite knowledge in this regard and on the other hand it
avoids unnecessary litigation by persons whose applications get rejected.
The judgement also laid down the objective criteria for selection of an application that
is source, manner and implications of trade/business have to be construed by
Licensing Authority thus leaving no ambiguity behind.
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