Rajasthan High Court - Jaipur
Akhil Bharat Krishi Goseva Sangh And ... vs State Of Rajasthan And Ors. on 27 January, 2000
Equivalent citations: AIR2000RAJ215, 2000(4)WLC739
JUDGMENT V.S. Kokje, J.
1. The petitioners Akhil Bharat Krishi Goseva Sangh and Akhil Bhartiya Shri Jain Ratna Yuvak Sangh had filed this petition in public interest against the State of Rajasthan. The Director General of Police (Crime), Jaipur. The Collector, Nagaur. The Station House Officer, Police Station Merta City, Gram Sevak, Gram Panchayat Anandpur Kalu. Panchayat Samiti Jaitaran, District Pali and the Divisional Railway Manager, Northern Railway, Jodhpur complaining about illegal transportation of Bovine animals in violation of the Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 and the Rules framed thereunder, (hereinafter referred to as the Act). On 4th January, 2000 a notice was directed to be issued to the respondents as to why the writ petition should not be admitted and disposed of at the stage of admission. An interim stay order as prayed was also granted subject to the condition that the Cows will be maintained at the cost of the petitioners. When the petition came up on 13th January, 2000 as many as 46 persons moved a joint application for being impleaded as party respondents on the ground that the subject matter cattle belonged to them and they were validly exporting the same outside the State. The application was allowed and they were allowed to be impleaded as party respondents. The case was finally heard with the consent of the parties.
2. The petitioners complained that bovine animals were being taken out of the State of Rajasthan in violation of the Act with the active co-operation of the officers of the State. The petitioners cited a specific instance of animals purchased by the exporters at the Animal Fair held at Anandpur Kalu, a village of Panchayat Samiti Jaitaran District Pali. It is alleged that a large number of cows were purchased by the exporters for taking the animals to Bihar for slaughtering. It is contended that the cows are ostensibly purchased for use in agricultural operation, but infact they are exported out of Rajasthan for taking them to Bangladesh and from their to Gulf Countries for slaughtering. It is contended that under the Act and the Rules framed thereunder bovine animal can only be taken out of the State for a specific purpose provided by the Act and after following the specific procedure provided by the Rules. It is alleged that without following the prescribed procedure more than 3000 cattle were sought to be exported by showing completion informalities on just one day i.e. 5-12-99. It is also contended that under the Act and the Rules framed thereunder the person granting permit for export has to be satisfied that export would not bring down the cattle population below the requirement of the area.
3. The learned counsel for the respondents on the other hand submitted that the formalities required by the Act and the Rules were completed before permits were granted for the export and the export was for agricultural purpose only and not for slaughtering. It was contended on behalf of the owners of the cattle that they have invested huge sums in a legitimate trade in which they purchase the cattle in Rajasthan where surplus cattle are available and transport them to other States mainly Bihar for being sold in fairs held there for sale and purchase of cattle for agricultural purposes. It is vehemently contended on behalf of the owners of the cattle that there is no evidence of the cattle being taken out for the purpose of slaughtering. They also expressed their willingness to abide by any conditions which may be imposed for taking the cattle out of Rajasthan.
4. We have heard the learned counsel and perused the record. It would be proper to first examine the legal provisions governing the export of bovine animals from Rajasthan. In furtherance of the directive principle of State Policy contained in Article 48 of the Constitution which expects the State to endeavour to organise agricultural and animal husbandry on modern and scientific lines and expects the State to take steps for preserving and improving the breeds and prohibiting the slaughter, of cows and calves and other milch and draught cattle, the State Legislature of Rajasthan enacted the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of temporary Migration or Export) Act 1995 and framed Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Rules, 1995. Section 2(b) of the Act defines a "Bovine animal" to mean and include Cow, Calf, Heifer, Bull or Bullock. Section 2(e) defines "Calf" to mean a castrated or uncastrated male of the age of three years and below belonging to the species of bovine animal.
5. Section 5 of the Act provides for prohibition of export of bovine animal for the purpose of slaughter and regulation of temporary migration or export for other purposes. Sub-sections (1) and (7) of Section 5 of the Act are relevant for the purpose and are reproduced hereunder :--
Sub-section (1):-- No person shall export and cause to be exported any bovine animal himself or through his agent, servant or other person acting in his behalf from any place within the State to any place outside the State for the purposes of slaughter or with the knowledge that it may be or is likely to be slaughtered.
Sub-section (7):-- The Competent Authority may issue special permit in the prescribed manner for export of bovine animal from Rajasthan for agricultural dairy farming purposes or for participation in a cattle fair, and before granting such permission the Competent Authority shall also ensure that such export in no way reduces the number of such bovine animal below the level of actual requirement of the local area.
6. Sub-section (2) of Section 8 of the Act provides minimum punishment of six months and maximum punishment of 5 years with fine which may extend up to Rs. 5000/- as punishment for contravention of the provisions of Section 5 of the Act. Section 11 provides that where any person is prosecuted for an offence under the provisions of the Act, the burden of proof that he had not committed the offence under the provisions of the Act shall be on him. The Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Rules, 1995, (hereinafter called "the Rules") provide for special permits for export of cattle for specified purpose. Rule 4 provides for special permit to export bovine animal for agricultural or dairy farming purposes, whereas Rule 5 provides for special permit for participation in cattle fairs. Rule 4 is relevant for our purpose as it is claimed by the respondents that the export is for agriculture purposes. Rule 4 is reproduced hereunder :--
"Rule 4:-- Special permit to export for agriculture or dairy farming purposes:--
(1) Any person seeking permission to export of Bovine Animal under sub-section (7) of Section 5 of the Act from any place within the State of Rajasthan to any place outside the State for agriculture or dairy farming purposes shall apply to Competent Authority in Form 2 for the grant of special permit.
(2) On receipt of the application in Form 2, the Competent Authority shall insure that such export in no way reduces the number of such bovine animal below the actual requirement of the local area.
(3) After satisfying about the genuineness of the application the Competent Authority may issue order to the concerned Veterinary Officer to examine the health of the Bovine Animal and to affix permanent identification mark over the body of the said animal.
(4) The Veterinary Officer shall issue certificate in Form 4 and affix permanent identification mark over the body of the bovine animal.
(5) The Competent Authority after satisfying that the bovine animals shall only be used for agriculture or dairy farming purposes may issue special permit.
(6) The Competent Authority shall issue special permit in Form 6 giving complete details about the animals and place -where the animal are proposed to be exported."
7. In prescribed Form 2 information has to be given as to the (1) Kind and number of Animal, (2) Name and address of the person from whom Animals were purchased/received, (3) Reason for seeking permit, (4) Name and address of the person who will keep the animals outside the State of Rajasthan and (5) Probable day and date of export. A certificate has to be given in the prescribed form No. 4 in which details as to the (1) Kind of Animal, age, sex, breed, (2) If female, whether it is pregnant/lactating/ dry, (3) Natural identification marks, permanent identification marks. Vaccination record etc. The certificate has to be given as to whether the animal is fit for migration or export for agriculture or dairy farming purpose. The Veterinary Officer has to put his signature with seal on the certificate. A bare reading of this Form No. 4 shows that the certificate has to be in respect of each animal and has to be given separately for each animal. The permit has to be given in the prescribed Form No. 6. The permit has to contain the information as to kind of animal, number of animals, identification marks (as per the health certificate), the date of issue of permit, name and address of the person from whom animals purchased/received, name and address of person to whom the animals are being exported.
8. From a perusal of the aforesaid provisions it is clear that whosoever desires to take Bovine animal outside the State of Rajasthan for agriculture or dairy farming purposes has to apply in Form No. 2. On receipt of the application the Competent Authority has to insure that such export in no way reduces the number of such bovine animal below the actual requirement of the local area. After satisfying about the genuineness of the application, the Competent Authority has to issue order to the concerned Veterinary Officer to examine the health of the Bovine animal and to affix permanent identification marks over the body of the said animal. After examining the Bovine animal, the Veterinary Officer has to issue a certificate in Form No. 4 and affix permanent identification mark over the body of the Boyne animal. After the certificate is obtained, the Competent Authority after satisfying that the Bovine Aninals shall only be used for agriculture or dairy fanning purposes may issue special permit in Form No. 6 giving complete details about the animals and place where the animals are proposed to be exported,
9. In the present case the procedure followed is clearly not in accordance with the Rules. Cyclostyled forms have been used in which on one single sheet Form No. 3, Form No. 4 and the certificate are printed. Actually, the forms also do not correspond to the prescribed forms. Applications are not in Form No. 2 and they do not contain the information required in Form No. 2. The applications do not mention the name and address of the persons from whom the animals were purchased/received. They do riot contain name and address of the person who will keen the animals outside the State of Rajasthan. Probable day and date of export has also not been mentioned in any of the applications.
10. The provisions of sub-rules (2) and (3) of Rule 4 have also not been followed. After receipt of the application, before asking the Veterinary Officer to examine the animals, the Competent Authority has not insured that the export would not bring the population of such animals in the area below requirement of the area. No satisfaction about the genuineness of the application was recorded and in fact no order was issued to the Veterinary Officer to examine the animals and to put permanent identification marks on them,
11. The certificate given by the Veterinary Officer in this case does not conform to Form No, 4 prescribed by the Rules. Firstly it does not show that each of the animal covered by the certificate was examined by the Veterinary Officer. The application was for 40 Bovine animals and all of them were certified to be fit by the Veterinary Officer in a single certificate without specifying the kind of animal, the age, sex and breed of the animal, the condition of female animal as to whether pregnant, lactating or dry, their national identification marks and vaccination record. The certificate given is also to the effect that the animal was healthy and fit for agriculture use, whereas it should have been as to whether the animal was fit for export for agriculture or dairy farming purposes. The certificate given by the Competent Authority does not even state that it is given by the Competent Authority, it is given by Gram Sevak Ex-officio Secretary Gram Panchayat Anandpur Kalu. Thus sub-rule (4) of Rule 4 was also not complied with.
12. The Competent Authority has not arrived at. and recorded, his satisfaction that the bovine animals shall only be used for agriculture or dairy farming; purposes before proceeding to issue permits. The permits issued are also not in the prescribed Form No. 6. They are only certificates that the applicants have purchased the cattle from cattle fair at Anandpur Kalu on 4-12-99 for agriculture purposes and permission is granted to take the cattle outside Rajasthan. Form No. 6 requires the kind of animal, number of animals, identification mark of animal(s) as per the health certificate to be specified. The number and date of health certificate has also to be mentioned. Date of issue of permit, name and address of the person from whom the animals purchased/received from has to be stated and name and address of the person to whom the animals are to be exported has also to be stated. A seal of the Office has to be affixed to the permit and signature with designation of the Competent Authority has to be affixed. All this has not been done. Thus Sub-rules (5) and (6) of Rule 4 have also been not complied.
13. Thus, neither the applications for export of Bovine animals conform to Form No. 2 nor the Veterinary Officer has given the certificate in Form No. 4 and the permit is also not in prescribed form No. 6. The Veterinary Officer and the Competent Authority have clearly by-passed the procedure prescribed by law in granting certificates and permission for export of Bovine Animal. The Veterinary Officer could not have issued any health certificate without a requisition from the Competent Authority in the prescribed form. He could not have certified a group of cattle as fit for agriculture purpose. He had to examine on requisition by the Competent Authority each and every Bovine animal and to give certificate in the prescribed form in respect of each of the Bovine Animal examined by him. General certificate to a group of animals is not contemplated by the Rules. Likewise the Competent Authority has failed to perform his duties under the Act and the Rules. He could not have acted on applications which were not in prescribed form and which did not contain the information required to be given in the prescribed form. He failed to insure that the export would not bring down the population of the animals of concerned species below the requirement of the area. He could not have acted on the certificate of the Veterinary Officer which was given without requisition from him and which was not in the prescribed form and which did not contain information required to be given in the prescribed form. He could not have acted on a general certificate given by the Veterinary Officer in respect of a group of Bovine animals. He also could not have himself issued a permit without first satisfying himself that the Bovine animals sought to be exported shall only be used for agriculture or dairy farming purposes. He could not have issued permits which were not in conformity with the Form No. 6, the prescribed form for the permit and could not have permitted the Bovine animal to be exported without a proper permit in Form No. 6 containing all the information required to be stated in Form No. 6.
14. The material placed on record by the parties would show that the Competent Authority the Gram Sevak and the Veterinary Officer have acted most callously in the discharge of their duties. In case of several applicants for export of Bovine animals it was pointed out that their affidavits in this Court bear their signatures whereas the applications said to have been made before the Competent Authority for export of Bovine Animal bear Thumb impressions. In fact there is not a single application produced in the Court as Annex. 2 to the petition which bears signatures of any of the applicants, whereas several of them have filed affidavits in this Court with their photographs duly affixing their signatures on the affidavit and not Thumb impression. It is also likely that forged thumb impressions have been used in the matter and a fraud has been played upon the Competent Authority. Since the matter is already being investigated by the police on F.I.R. lodged by Akhil Bhartiya Shri Jain Ratna Yuvak Sangh one of the petitioners in this case we would expect the Investigating Officer to investigate the case from this angle also.
15. It was also argued that the permission granted for export was in relation to calves i.e. castrated or uncastrated male of the age of three years and below belonging to the species of bovine animal. It was contended that not a single Bull or Bullock or Cow is sought to be exported but only calves were sought to be exported who are unfit for agricultural use immediately. It is contended on behalf of the respondents including Government Officer respondents that bovine animals not fit for agricultural work at present but which can be used for that purpose in future could also be exported. This is not acceptable. When the Law requires the Competent Authority to satisfy himself that the animals shall only be used for agricultural or dairy fanning purposes before issuing permits it talks about the present and not about a distant future. Flow can a person know whether a Calf exported would be used for agriculture purpose after it is grown up. How can any one know whether it would be allowed to grow up or slaughtered before becoming fit for agricultural use. Certificate to be issued by Veterinary Officer in Form 4 also requires him to certify that the animal is fit for export for agricultural or dairy farming purpose. He is not required to predict or prophesy as to whether the animal would become fit for agricultural purpose on being grown up. The Competent Authority has to satisfy himself in present! and not in future that the export will not result in bringing down the population of the bovine animal sought to be exported below the requirement of the area. It is therefore clear that the Act and the rules do not permit calves to be exported out of Rajasthan on the excuse of their being used after export for agricultural or dairy farming purposes in future after they grow up. The Competent Authority under the Act cannot therefore entertain any application for export of calves and heifers out of Rajasthan on the ground that they would be used for agriculture or dairy fanning purposes. The application (Annex. 2) deserved to be rejected outright on this ground alone without being processed further.
16. There was also a feeble attempt to suggest that the animals were being taken out of Rajasthan for being exhibited in fairs held in Bihar. However, the application for permission to export do not bear this out and in that case the animals would have to be brought back to the State. There is no such undertaking given by the applicants. The contention has therefore to be rejected.
17. Before parting with the case we express our shock at the manner in which the Act and the Rules are being implemented by the State Govt. and its officers. Legislature when it enacted the definition of Competent Authority could never have contemplated that a Ministerial Officer like Gram Sevak of a Panchayat could entrusted with the functions of Competent Authority under the Act handing over the implementation of the Act to a lowly placed official. Section 2(g) of the Act defines Competent Authority as follows :--
"2(g) Competent Authority means Collector of a District and includes any other officer who may be authorised in this behalf by the State Govt. by notification in the Official Gazette to exercise the powers and perform the functions of the Competent Authority under this Act or the rules made thereunder for such area or areas and for such period as may be specified in the notification."
18. It is clear that Collector of a District is expected to be the Competent Authority normally. The State Govt. is empowered to authorise some other Officer by notification in this behalf. When the power is given to the Collector of a district primarily and power is given to the State Govt. to appoint any other officer also for exercising the power and to perform the functions of the Competent Authority, the State Govt. has to appoint a responsible officer who can discharge the functions properly and efficiently. A Gram Sevak who is expected to have a minimum qualification of having passed higher secondary only is hardly an officer competent to discharge the function. We feel that an officer below the rank of a Sub-Divisional Magistrate should not have been entrusted with the powers of Competent Authority under the Act even assuming that delegation of the powers to officers below that rank was also permissible. We have grave doubts about the legality or appointing a Gram Sevak to discharge the function of Competent Authority under the Act but we keep this question open as it has not been specifically raised before us.
19. What can happen when an Officer of the level of Gram Sevak is entrusted with the job is amply demonstrated by the facts of the present case where more than 3000 bovine animals were permitting to be exported with-out following the prescribed procedure by law within one single day. Even assuming that as is contended by the learned counsel appearing for the Veterinary Department that 3200 cattle were examined in two days and not in one day, that also speaks volumes about the efficiency of the Competent Officer and the Veterinary Officer who did the job for him. It is obvious that the exporters and the authorities were acting in collusion. If that had not been so, the authorities would not have facilitated the export by preparing thou-sands of cyclosryled forms comprising the application form, Veterinary Officer's certificate and the permit into one single paper giving a complete go by to the forms prescribed by the Rules. It is surprising that a Govt. Department processes application for export with that speed. In hundreds of appeals in this Court, applications for condonation of delay of hundreds of days are pending in which the Govt. itself has sought condonation of delay on the ground of proverbial delays in processing of flies in Govt. departments. We are also surprised to note that Govt. departments which do not file replies to the writ petitions and do not even engage and instruct their counsel within time were able in this case to instruct lawyers to file replies within the shortest possible time and were vehemently pleading the case of the exporters in the garb of defending their own action. We would like the Secretary to the Govt. of Rajasthan, Veterinary Department to look into the reasons for the extra zeal and vehemence of the officers entrusted with the job of defending this case on behalf of the Govt. and the officers who dealt with the applications for export of bovine animals in this case.
20. As a result of the aforesaid discussion the petition is allowed. The permits issued by the Competent Authority Gram Sevak Gram Panchayat Anandpur Kalu, the certificates issued by the Veterinary Officer to respondents Nos. 7 to 52 deserve to be and are hereby quashed. The applications given by the respondents Nos. 7 to 52 have to be rejected and cannot be acted upon by the Competent Authority for the reasons given above.