Kerala High Court
K.H.Mahinkutty Sahib vs The Chief Wildlife Warden on 5 April, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941
WP(C).No. 19300 of 2011
PETITIONER:
K.H.MAHINKUTTY SAHIB
AGED 45 YEARS
KARATHUKUDI HOUSE, PP ROAD PO, PERUMBAVOOR.
BY ADVS.
SRI.V.U.PATHROSE
SRI.P.M.POULOSE
RESPONDENT:
THE CHIEF WILDLIFE WARDEN,
KERALA, THIRUVANANTHAPURAM.
BY SPL.GP SANDESH RAJA.K, SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 19300 of 2011 2
JUDGMENT
This writ petition is filed by the petitioner seeking the following reliefs:
(i)Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P8.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction to the respondent to issue ownership certificate to the petitioner with respect to the deceased elephant Unnikrishnan and the other elephant Prasad respectively within such time frame as may be fixed by this Honourable Court.
2. Petitioner was the owner in possession of a deceased elephant by name " Unnikrishnan" and another elephant by name "Prasad". Petitioner submitted Ext.P5 application with respect to the deceased elephant and Ext.P6 with respect to the other elephant viz., Prasad before the respondent to issue ownership certificate. Since no orders were passed on the said applications, W.P.(C) No.9079/2011 was filed before this court and secured Ext.P7 judgment directing the respondent to consider and pass orders on Exts.P5 and P6 applications. The applications were considered, however, rejected the applications as per Ext.P8 order WP(C).No. 19300 of 2011 3 assigning the reason that, the applications are belated one since the petitioner ought to have submitted the applications on or before 18.10.2003 in accordance with the order issued by the Government for registration of elephants and issuance of ownership certificates under an Amnesty Scheme. However, with respect to Ext.P6 application, it is stated that, petitioner had not obtained prior permission from the Chief Wild Life Warden before purchasing the elephant. Case of the petitioner is that,the reasons assigned in the order of dismissal declining the relief sought for by the petitioner cannot be legally sustained.
3. Respondent has filed a detailed counter affidavit justifying the stand adopted in Ext.P8 order. The matter was heard by me. However, learned Government Pleader has produced an order dated 26.2.2016, from where, I am satisfied that, certain orders are issued by the State Government with respect to the regularising ownership of elephants and issuance of certificates. However, the said Government Order is under challenge before the Apex Court in I.A.25 & 27 of 2016 in Writ Petition Civil No.743/2014 and an interim order is passed staying the operation of the said WP(C).No. 19300 of 2011 4 Government Order.
4. I have heard respective counsel across the Bar and perused the pleadings and documents on record.
5. It is true, the Government has declined the ownership certificate sought for by the petitioner in respect of the two elephant specified above, which was declined as per Ext.P8 order relying upon various other Government Orders. Anyhow the subject matter was found to be regularised by the Government and it was accordingly that an order dated 26.2.2016 was issued. But the same is stayed by the Apex Court. Therefore, I am of the considered opinion that, the issue raised by the petitioner with respect to the issuance of ownership can be considered by the Government if and when the Government Order specified above is upheld by the Supreme Court. To put it otherwise, if the Government Order dated 26.2.2016 is interfered with by the Apex Court, then the petitioner is not entitled to get any relief as is sought for in the writ petition since Ext.P8 order is passed taking into account all the attendant circumstances remaining at that point of time. Learned counsel for petitioner submitted that, the situation would suffice, if a direction is issued WP(C).No. 19300 of 2011 5 to the respondent to consider the application submitted by the petitioner taking into account the notification dated 26.2.2016 if and when the same is upheld by the Supreme Court and in accordance with the terms fixed by the court in the said Government Order.
Accordingly the writ petition is disposed of permitting the petitioner to move necessary application after the issue is considered by the Apex Court as specified above if and when a remedy is available to the petitioner in accordance with the decision taken by the Apex Court. All question of facts and law raised in this writ petition are left open.
Sd/-
SHAJI P.CHALY
Smv JUDGE
6.4.2019
WP(C).No. 19300 of 2011 6
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED
28/12/2007 ISSUED BY THE FOREST DEPARTMENT SHOWING THAT THE SAME IS MICROCHIP NO.
IMPLANTED ON UNNIKRISHNAN.
EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER BY THE DEPUTY CONSERVATOR OF FOREST (WILDLIFE) DATED 15/11/2010.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 10/10/2003 IN WPC 31897/2003.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 08/08/2008 IN WPC NO.31897/03.
EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 28/10/2003 WHICH WAS FILED UNDER SECTION 40A OF THE WILDLIFE PROTECTION ACT 1972. EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 28/10/2008 BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 23/03/2011. EXHIBIT P8 TRUE COPY OF THE ORDER NO.WL3 2137/2011 DATED 28.5.2011 BY THE RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ORDER NO. WL3/2137/2011 DATED 28/05/2011 BY THE RESPONDENT.