Punjab-Haryana High Court
Thakur Rajinder Singh vs State Of Punjab And Others on 27 April, 2012
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: April 27, 2012
1. CWP No. 14703 of 2006
Thakur Rajinder Singh
...Petitioner
Versus
State of Punjab and others
...Respondents
2. CWP No. 20774 of 2006 Thakur Manmohan Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ALOK SINGH Present: Mr. Rahul Sharma, Advocate, for the petitioner(s).
Ms. Sudeepti Sharma, DAG, Punjab, for respondent Nos. 1 to 3.
1. To be referred to the Reporters or not?
2. Whether the Judgment should be reported in the Digest M.M. KUMAR, Acg. CJ.
1. This order shall dispose of CWP Nos. 14703 and 20774 of 2006 because common questions of law and facts have been raised and the petitioner(s) are members of the same family. In these petitions two orders have been challenged. The first one is the adjudication order dated 19.5.2006 (P-4), which has been passed by the Deputy Director, Wildlife Regional Office, Ministry of Environment and Forests, New Delhi-respondent No. 5. The other order(s) are dated 22.8.2006 and 30.11.2006 respectively (P-5), issued by the Divisional Forest Officer, Jalandhar Forest Division, CWP No. 14703 and 20774 of 2006 2 Phillaur-respondent No. 3 under Section 40-A of the Wild Life (Protection) Act, 1972 (for brevity, 'the Act'). By order dated 19.5.2006 the applications for grant of immunity under Section 40- A of the Act and issuance of ownership certificate to retain wild life articles, have been rejected on the ground that the application(s) were received after the prescribed period of limitation. The wildlife articles have been treated as illegal and liable to be surrendered to the State Government. Recommendations have been made to initiate legal proceedings against the parties (P-4). Consequently, the Divisional Forest Officer-respondent No. 3, issued order(s) dated 22.8.2006 and 30.11.2006 directing the petitioner(s) to surrender the wildlife article(s), namely, 'Tiger Skin', in his office within a period of 15 days (P-5). The adjudicating order, dated 19.5.2006 (P-4), has been challenged on the ground that it is contrary to the notification dated 18.4.2003 (P-1), issued by the Ministry of Environment and Forests in exercise of power under Section 40-A read with Section 63 of the Act.
2. Brief facts may first be noticed. A Tiger Skin weighing 7.500 kg. was gifted to Thakur Rajinder Singh (petitioner in CWP No. 14703 of 2006) by his father-in-law Major Dunger Singh, in his marriage in February, 1964. Another Tiger Skin weighing 5.800 Kg. was received in gift by his brother Thakur Manmohan Singh (petitioner in CWP No. 20774 of 2006) from Late Thakur Ranjit Singh in March, 1971. The aforementioned wildlife articles were required to be declared to the Chief Wild Life Warden or any other authorised officer in terms of Section 40-A of the Act. Consequent upon the declaration made, a certificate of ownership was to be issued. After such a declaration, the petitioner(s) becomes entitled CWP No. 14703 and 20774 of 2006 3 for immunity of possession in view of the provisions of Section 40- A(1) of the Act. If no such declaration had been made under Section 40(4) of the Act then such item has to be surrendered.
3. The Union of India, Ministry of Environment and Forests- respondent No. 4 issued a notification dated 18.4.2003 (P-1), framing the rules for declaration of wild life stock, which are known as 'the Declaration of Wild Life Stock Rules, 2003' (for brevity, 'the Rules'). The Rules provide the procedure for filing application in terms of Section 40-A of the Act. As per Rule 4(2) the applications were required to be filed within a period of 180 days from the date of publication of the Rules. Accordingly, the last date of filing the application would be 15.10.2003.
4. Thakur Rajinder Singh-petitioner has claimed that he made an application to the Divisional Forest Officer-respondent No. 3 on 22.10.2003 by declaring that he was possessing a Tiger Skin since 1964 (P-2). Respondent No. 3 after duly receiving the application informed the petitioner that the declaration was required to be made in the prescribed format to the Director Wildlife and Chief Wildlife Warden-respondent No. 2 by 31.12.2003. Accordingly, the petitioner submitted the application in the prescribed format on 31.12.2003 (P-3). Similar is the position in the case of Thakur Manmohan Singh-petitioner in CWP No. 20774 of 2006. On 19.5.2006, Deputy Director, Ministry of Environment and Forests, New Delhi-respondent No. 5 sent a letter to the Chief Wildlife Warden, Punjab, in reference to 33 applications, including the applications of the petitioner(s) stating that since the applications in question were not received within the prescribed period of limitation, therefore, certificate of possession could not be CWP No. 14703 and 20774 of 2006 4 issued (P-4). On the basis of order dated 19.5.2006 (P-4), the Divisional Forest Officer, Phillaur-respondent No. 3 issued order(s) dated 22.8.2006 and 30.11.2006 (P-5), directing the petitioner(s) to surrender their respective Tiger Skins-wild life articles within 15 days. Feeling aggrieved, the petitioner(s) filed these petitions on 13.9.2006 and 22.12.2006. The Division Bench stayed operation of the order(s) dated 22.8.2006 and 30.11.2006 (P-5) requiring them to surrender the possession of Tiger Skins.
5. In response to the notice of motion reply has been filed by respondent Nos. 1 to 3. It has been denied that applications were filed by the petitioner(s) on 22.10.2003 but the same were received on 31.12.2003. It has been stated that specific registration numbers had not been assigned to those applications which were received after the prescribed period of 180 days and a clarification was sought from the Government of India, Ministry of Environment-respondent No. 4. On 19.5.2006, the clarification was received from respondent No. 5 and accordingly orders dated 22.8.2006 and 30.11.2006 were passed directing the petitioner(s) to surrender the Tiger Skins.
6. It has also been pointed out that in pursuance to the Rules, on 29.3.2003 public notices were issued in the newspapers, namely, Hindustan Times (English); Dainik Tribune (Hindi); Jagbani (Punjabi); Rojana Chardi Kala (Punjabi)[R-1 Colly]. Public notices were also again published in the newspapers on 9.10.2003, such as The Tribune (English) and Dainik Bhaskar (Hindi) [R-2 Colly].
7. In the short reply, respondent Nos. 5 and 6 have asserted that they have been unnecessarily impleaded as a party because they have no role to play. However, it has been admitted CWP No. 14703 and 20774 of 2006 5 that in response to the letter dated 2.5.2006 sent by the Chief Wildlife Warden, Punjab, the matter was clarified by the Deputy Director-respondent No. 5 vide order dated 19.5.2006 (P-4).
8. We have heard learned counsel for the parties and have minutely perused the pleadings as well as the Rules. In order to appreciate the controversy it would be necessary to read the relevant provisions of the Rules. Rule 3 cast an obligation on the authorities to publicise the intent of notification and assistance in making application and the same reads as under:-
"3. Publicity of intent of notification and Assistance in making application.- (1) The Chief Wild Life Warden or the officer authorized by the State Government in this regard shall cause to give wide publicity to the intent of this notification in the regional language through electronic or print media or such other means.
(2) The Chief Wild Life Warden or the officer authorized by the State Government in this regard shall take necessary action to assist the local communities and individuals especially the poor and illiterate in the declaration of their possession, filling up the specified form and any other matter connected therewith and shall make every attempt to ensure that no individual or community associated with animals is deprived of this opportunity."
9. Likewise, Rule 4 of the Rules deals with the procedure for filing applications and the period prescribed for presenting the application is 180 days from the date of publication of the Rules. Rule 4 is set out below for ready reference:-
CWP No. 14703 and 20774 of 2006 6
"4. Procedure for filing applications.- (1) An application to the Chief Wild Life Warden or the officer authorized by the State Government in this regard shall be presented in the Form annexed to these rules by the applicant either in person or by an agent or by duly authorized legal practitioner or sent by registered post addressed to the Chief Wild Life Warden or the officer authorized by the State Government in this regard of the concerned State or the Union territory.
(2) The application under sub-rule (1) shall be presented in four complete sets within a period of one hundred and eighty days from the date of publication of these rules.
(3) The applicant may attach to and present with his application an acknowledgement slip as is given in the Form which shall be signed by the official receiving the application on behalf of the Chief Wild Life Warden or the officer authorized by the State Government in this regard in acknowledgement of the receipt of the application." (emphasis added)
10. Rule 5 further requires that the application be scrutinsed and the applications which are found to be in order, shall be duly registered and given serial number and the applications which are found to be defective were required to be returned to the applicants within 15 days for rectifying the defects, which could be resubmitted with corrections within 15 days from the date of receipt. Place and date of hearing the application was also required to be notified as per Rule 7 and the decision of the application is CWP No. 14703 and 20774 of 2006 7 also regulated by Rule 8 of the Rules. Rule 5, 7 and 8 of the Rules reads as under:-
"5. Presentation and scrutiny of applications.- (1) The Chief Wild Life Warden or the officer authorized by the State Government in this regard shall endorse on every application the date on which it is presented or deemed to have been presented under that rule and shall sign the endorsement.
(2) If on scrutiny, the application is found to be in order, it shall be duly registered and given serial number.
(3) If the application, on scrutiny, is found to be defective, the same shall be returned to the applicant within fifteen days for rectifying the defects and resubmitting the corrected application within fifteen days from the date of its receipt.
(4) If the applicant fails to rectify the defect within the time allowed under sub-rule (3), the Chief Wild Life Warden or the officer authorized by the State Government in this regard may, by order and for the reasons to be recorded in writing, decline to register the application."
"7. Date and place of hearing to be notified.- The Chief Wild Life Warden or the officer authorized by the State Government in this regard shall notify to the parties the date, place and time of hearing of each application, if required.CWP No. 14703 and 20774 of 2006 8
8. Decision on applications.- The Chief Wild Life Warden or the officer authorized by the State Government in this regard shall verify the facts mentioned in the application and make such inquiry as may be required.
(2) The Chief Wild Life Warden shall, as far as possible, decide the application within six months of the date of its presentation and communicate the same to the applicant in writing under his own signature by registered post."
11. Respondent Nos. 1 to 3 have claimed that they have complied with the provisions of Rule 3 of the Rules by publication of public notices in the newspapers on 29.3.2003 and 9.10.2003 (R-1 Colly and R-2 Colly respectively). A casual glance at Rule 3 would make it patent that the Chief Wild Life Warden or the authorised officer is under an obligation to give wide publicity to the intent of the notification dated 18.4.2003 in the regional language through electronic or print media. Sub-rule (2) of Rule 3 of the Rules casts a further obligation on the authorities to take necessary action to assist the local communities and individuals, especially poor and illiterate, in the declaration of their possession, filling up the specified form and any other matter connected therewith. They are obliged to make every attempt to ensure that no individual or community associated with animals is deprived of the opportunity provided by the Rules. The efforts made by the respondents are far from satisfactory and do not answer the requirement of the Rules. The public notice issued on 29.3.2003 (R-1 Colly) cannot be considered to have been issued in pursuance of notification dated CWP No. 14703 and 20774 of 2006 9 18.4.2003 (P-1). No public notice could be issued prior in point of time than the parental notification.
12. The second notification dated 9.10.2003 (R-2 Colly) would also fall flat on its face. The notification dated 18.4.2003 prescribes a period of 180 days from the date of that notification to apply. That period came to end on 15/16.10.2003. What is the use of issuing a public notice on 9.10.2003 which is barely 5 days before the expiry of 180 days. The respondents should have issued public notices in April/May. Moreover, there is no mention of notification dated 18.4.2003 or the period of limitation. It only mentioned that application be filed on or before 14.4.2003. The intent and spirit of Rule 3 is that it must reach every one who is associated with such possession. The impugned order are against the purpose and spirit of the Wildlife (Protection) Amendment Act, 2002 and the Declaration of Wild Life Stock Rules, 2003, which have been enacted to ensure that no individual or community is deprived of the opportunity to declare the animal article or trophy in his possession and obtain a Certificate of Ownership in respect thereof. Apart from this, respondent Nos. 1 to 3 only published the public notices which are far from answering the requirement of Rule 3(1) and (2). The public notice (R-2) reads as under:-
" PUBLIC NOTICE The General public through this public notice is hereby informed that the last date for the declaration of captive animal/animal article/ trophy/uncured trophy derived from animal skin specified in Schedule I or Part II of Schedule II of Wildlife (Protection) Act, 1972 is 14th CWP No. 14703 and 20774 of 2006 10 October 2003 at 5.00 p.m. No application after this date will be entertained.
So, the public is advised to submit their applications to the Chief Wildlife Warden, Punjab, SCO 2463-64, Sector 22-C, Chandigarh in time i.e. 14th October 2003 at 5.00 pm. A.S. Dogra, IFS Chief Wildlife Warden, Punjab, Chandigarh.
Published in Rojana Ajit (Punjabi) on 9.10.2003 Published in Dainik Bhaskar (Hindi) on 9.10.2003"
13. Once the respondents have not done their duty in accordance with the Rules then it is very strange for them to raise the boggy of period of limitation. The provisions of Rules are confiscatory in nature and, therefore, principle of strict construction has to be followed. It is not understood as to how the public notice was given on 29.3.2003 whereas the notification of the Rules was issued on 18.4.2003. The other public notice was issued on 9.10.2003, which is very close to the last date of 180 days, which was 15.10.2003. Therefore, on this score the adjudication order dated 19.5.2006 (P-4) and consequential orders dated 22.8.2006 and30.11.2006 (P-5) are liable to be set aside.
14. As a sequel to the above discussion, these petitions succeed. Adjudication Order dated 19.5.2006 (P-4) and consequential orders dated 22.8.2006 and 30.11.2006 (P-5) are quashed. The respondents may consider the application(s) of the petitioner(s) on merit and issue necessary certificate within a CWP No. 14703 and 20774 of 2006 11 period of two months from the date of receipt of a copy of this order.
15. A photocopy of this order be placed on the file of connected case.
(M.M. KUMAR) ACTING CHIEF JUSTICE (ALOK SINGH) SINGH) April 27, 2012 2012 JUDGE PKapoor