Kerala High Court
M.Balachandra Menon vs The Principal Chief Conservator (Chief ... on 9 October, 2018
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940
WP(C).No. 12541 of 2018
PETITIONER:
M.BALACHANDRA MENON
AGED 69 YEARS, S/O P.KRISHNAN KARTHA, MARAMITTATH
HOUSE,CHERAI PO, ERNAKULAM.
BY ADV. SRI.N.MAHESH
RESPONDENTS:
1 THE PRINCIPAL CHIEF CONSERVATOR (CHIEF WILD LIFE
WARDEN)
KERALA FORESTS (WILDLIFE), FOREST HEADQUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM-695006.
2 THE DIVISIONAL FOREST OFFICER
KODANAD, ERNAKULAM, PIN-683544.
3 THE RANGE OFFICER
KODANAD, FOREST RANGE, KODANAD, ERNAKULAM, PIN-
683544.
BY ADVS.
SRI.SANDESH RAJA.K. SPL. G.P. FOREST
OTHER PRESENT:
SPL GP FOR FOREST.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.9.2018,
THE COURT ON 09.10.2018 DELIVERED THE FOLLOWING:
W.P.(C).No.12541/18
2
JUDGMENT
1. Petitioner has approached this Court with the following prayers:-
"i)Issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to issue certificate of ownership of the trophies in question in view of Section 42 of the Wild Life Protection Act, 1972.
ii)Issue a writ of mandamus or any other appropriate writ, direction or order directing the 1st respondent to pass orders on Exhibits P6 and P7 forthwith after hearing the petitioner;
iii)Issue a writ of mandamus or any other appropriate writ, direction or order directing the 2nd and 3rd respondents not to take the possession of the trophies in question by force."
2. Heard learned counsel for the petitioner and the learned Special Government Pleader.
3. Petitioner, who was the owner of two elephants, one which died on 2.6.2009 and the other on 29.3.2010, seeks issuance of certificate of ownership of the tusks of the elephants. The petitioner contends that declarations under Section 40 of the Wild Life (Protection) Act, 1972 had been submitted as Exhibits P6 and P7, therefore, orders are liable to be passed under Section 42 of the Act, after hearing the petitioner. It is contended that the action taken for seizure of the tusks without considering Exhibits P6 and P7 is illegal and unwarranted. W.P.(C).No.12541/18 3
4. A statement has been filed by the 3 rd respondent stating as follows:-
"It is submitted that the two captive elephants were possessed by the petitioner namely Cherai Krishnadas and Cherai Krishnaprasad as stated by the petitioner. The elephant Krishnadas died on 02.06.2009 and the elephant Krishnaprasad died on 29.3.2010. While conducting post- mortem and cremation, the staff given custody of the tusks to the owner of the elephant, by mistake of ignorance. Actually the tusks had to be kept in government custody until an order from the Chief Wildlife Warden to release the elephant tusks to the owner of the elephant, if he is satisfied with the provisions of Section 42 of the Wildlife (Protection) Act, 1972. On an investigation conducted by the Divisional Forest Officer, Flying Squad Division, Ernakulam he found that giving the possession of the tusks to the owner of the elephant was improper. In his investigation report he recommended to seize the elephant tusks in the custody of the petitioner and submitted the report to the Additional Principal Chief Conservator of Forests (Vigilance and Forest Intelligence). The Additional Principal Chief Conservator of Forests (Vigilance and Forest Intelligence) directed the Divisional Forest Officer, Malayattoor to take the custody of the tusks unlawfully possessed by the petitioner as per his letter No.VE 1-42382/2016 dated 22.11.2016 and the Divisional Forest Officer, Malayattoor directed me to execute the order as per endorsement No.B-9890/2016 dated 12.01.2017. As per the direction, I have approached the petitioner for taking lawful custody of the elephant tusks unlawfully kept by the petitioner."
5. It is further stated in paragraph 5 of the statement as follows:-
"5. It is submitted that Ext.P6 and P7 representations has not been received or seen in files of the 1 st respondent. As per the Wildlife W.P.(C).No.12541/18 4 (Protection) Rules, 1978 the person who possesses an animal article or trophy or uncured trophy should submit a declaration to the Chief Wildlife Warden/authorised officer in Form No.13 specified in the Wildlife(Protection) Rules. So it is clear that the petitioner has not yet given any declaration, as per law, of the elephant tusks in his custody. So the elephant tusks are not in unlawful custody of the petitioner and the tusks have to be taken into the lawful custody of the Government."(sic)
6. The provision of the Wildlife (Protection) Act, 1972 provide for ownership certificates in respect of captive animals as well as trophies. Once a captive animal dies, any part of its body becomes 'trophy' as defined in the Act. Therefore, a declaration in terms of Section 40 is to be preferred by the owner and after due enquiry under Section 41, an order under Section 42 has to be issued by the competent officer on the facts and circumstances of each case.
7. In the instant case, though the petitioner submits that Exhibits P6 and P7 had been submitted soon after the death of the animals, an affidavit has been filed by the 3 rd respondent stating that Exhibits P6 and P7 had not been filed by the petitioner or received by the respondents. No reply affidavit is forthcoming. It is further stated in paragraph 3 of the counter affidavit of the 3 rd respondent as follows:-W.P.(C).No.12541/18 5
"3.It is humbly submitted that there are various complaints received in this department with regard to the sale of the elephant tusk. Moreover this respondent has to verify the tusks which is alleged to be with the petitioner for verifying whether it is the same tusk which has been handed over to the petitioner by the department by mistake."
8. In the facts and circumstances detailed above, I am of the opinion that due enquiry as to verification of the trophies in the possession of the petitioner cannot be interdicted by this Court. However, if the petitioner is in possession of the said tusks and if he prefers declarations as required in Section 40 within two weeks from the date of receipt of a copy of this judgment, the competent among the respondents shall make due enquiries under Section 41 and take a decision in terms of Section 42 within a period of one month thereafter. In case the petitioner is in possession of the tusks, no seizure of the same shall be carried out till orders are passed as directed above. The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.12541/18 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
OWNERSHIP DATED 27.09.2007 ISSUED BY
THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF CERTIFICATE OF OWNERSHIP
DATED 25.09.2004 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P3 TRUE COPY OF CERTIFICATE OF
IMPLANTATION OF MICROCHIP DATED
12.8.2007 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF
IMPLANTATION OF MICROCHIP DATED
12.8.2007 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPORT OF THE POST
MORTEM ISSUED BY DR.GIREESH VETERINARY
POLYCLINIC, NORTH PARAVOOR.
EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED
8.6.2009 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED
7.4.2010 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
True copy
PS to Judge