Karnataka High Court
M/S Great Prabath Circus vs Union Of India on 8 November, 2013
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8th DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
W.P.NO.29067/2013 (GM-RES)
BETWEEN
M/S GREAT PRABATH CIRCUS
MARUTHI NILAYA
GANDHI NAGAR, 1ST CROSS
NEAR ST. MARYS SCHOOL ROAD
TUMKUR 572102
BY ITS PROPRIETOR, P. SAIBABA
S/O LATE MUTHURAJAPPA,
AGE ABOUT 64 YEARS ... PETITIONER
(BY SRI MAHESH R UPPIN, ADV.,)
AND
1. UNION OF INDIA
BY ITS SECRETARY
MINISTRY OF ENVIRONMENT AND FORESTS
NEW DELHI 110011
2. THE CENTRAL ZOO AUTHORITY
BIKANER HOUSE, ANNEXE-VI
SHAHJANAN ROAD
BY ITS MEMBER SECRETARY
NEW DELHI 110011
3. STATE OF KARNATAKA
BY ITS SECRETARY
DEPT OF FOREST (WILDLIFE)
M.S. BUILDING, BANGALORE 560001
2
4. PRINCIPAL CHIEF CONSERVATOR OF FORESTS
(WILDLIFE) & CHIEF WILDLIFE WARDEN
ARANYA BHAVAN, MALLESHWARAM
BANGALORE 560003 ... RESPONDENTS
(BY SRI H V MANJUNATHA, AGA FOR R3 & 4,
BY SRI T MOHANDAS SHETTY, CGC FOR R1 & 2)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTER
DT.1.4.2013 ISSUED BY THE R-2 VIDE ANNX-E AND THE
ENDORSEMENT DT.29.6.2013 ISSUED BY THE R-4 MARKED AS
ANNX-G.
THIS W.P. COMING ON FOR PRELIMINARY HEARING B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court assailing the communication dated 1-4-2013 impugned at Annexure-E. The endorsement dated 29-6-2013 impugned at Annexure- G is also assailed. The petitioner also seeks for issue of mandamus directing the 2nd respondent to consider the application filed by the petitioner at Annexure-C.
2. The petitioner known as M/s. Great Prabath Circus is carrying on business of performing circus by men and 3 women artists and Indian elephants. It is stated to be a mobile circus shifting from place to place all over Karnataka and other States. The circus was established about 50 years back by one Muthurajappa and after the death of said Muthurajappa, his son Sri. P.Saibaba continues to run this circus. Though initially several other animals were also used for circus, presently only four elephants are owned by the petitioner, apart from employees who are helping in performance of circus. As and when the circus is shifted from place to place, the petitioner has made applications to the 4th respondent seeking transit permit. Presently, when such request had been made by the petitioner, the impugned endorsement at annexure-G to the petition has been issued since according to the respondents the mandatory requirements of Section 38H of the Wild Life (Protection) Act 1972 has not been complied with by the petitioner as per the communication stated to have been addressed by the Member Secretary of the Central Zoo Authority to the 4th 4 respondent. It is in that light, the petitioner is before this Court and alternatively, prayer to consider the representation under Wild Life (Protection) Act 1972 to the Central Zoo Authority is also sought.
3. The respondents have filed the statement of objections. The respondents-3 and 4 are essentially relying on the said provision which has been indicated to them by the Central Zoo Authority and in that regard is seeking compliance of the same by the petitioner. The 2nd respondent through their objection statement have sought to sustain its action. It is their case that as per the orders passed by the Hon'ble Supreme Court of on 20-11-2000 as also the provisions contained in Section 38H the Wild Life (Protection) Act, the registration of a circus is very much necessary. It is contended that pursuant to the amendment to the Act, a paper publication dated 20-1-2003 was issued calling upon the owners of Zoo/circus to register as contemplated under the Act. It is 5 the case of the 2nd respondent that despite the same, the petitioner has not registered by filing appropriate application to the 2nd respondent though all other circus have filed such application and recognition has been obtained. It is therefore contended that in the absence of the same, the 4th respondent in any event could not have allowed the petitioner to retain the elephants and to transfer the same from place to place and as such, the action of the respondent is justified.
4. In the light of the rival pleadings, the learned counsel for the petitioner at the outset would make reference to the provisions contained in the Wild Life (Protection) Act 1972 and also the amendment brought in by way of the Wild Life (Protection) (Amendment) Act 2002. By referring to the same, it is contended that the circus was not initially included under the definition of "Zoo" as contemplated under the original Act. It is only by the amendment carried out with effect from 1-4-2003 6 circus was also included in the definition of "Zoo" and a consequent incorporation has been made by sub-section (1A) to Section 38H. In that context, it is contended that in view of said amendment, the requirement for registration as contemplated under Section 38H(1A) would apply only to the 'circus' which has been established and commenced from the date of the Wild Life (Protection) Amendment Act, 2002. It is therefore contended that the petitioner circus which existed much prior to the Amendment Act was not required to seek recognition from the 2nd respondent. But, however, all other regulatory provisions to be complied with the respondents-3 and 4 was required to be done which is being complied by the petitioner and registration as required under the Performing Animals (Registration) Rules has also been complied with. It is in that circumstance, contended that the action of the 2nd respondent directing the 4th respondent not to issue the transit permit is not justified. 7
5. The learned counsel for the 2nd respondent would however contend that the recognition as contemplated therein would apply even to the existing circus and this would be more clear, if a reference is made to Section 38-I of the Act, which was also introduced by the same Amendment Act. It is in that context contended that the recognition even in respect of circus which existed prior to the amendment as contemplated under Section 38H is necessary and the petitioner not having made an application as contemplated therein, at this juncture cannot seek to proceed to own the elephants and transfer the same from place to place. Even the copy of the application which has been produced along with the petition is not directly made to the 2nd respondent and therefore the respondents were justified in their action.
6. In the light of the above, firstly, the provisions which existed earlier and the amendment made thereto would arise for consideration. Section 2(39) of the Wild 8 Life (Protection) Act 1972 would indicate that it is the definition which existed earlier in relation to "Zoo". The definition expressly provided that "Zoo" does not include a 'circus' and an establishment. However, by the amendment, incorporated with effect from 1-4-2003, the definition of "Zoo" has been amended to include 'circus' and rescue centres and does not include an establishment. If the said insertion to the definition of 'Zoo' alone is taken into consideration without any further amendment to Section 38H of the Act, certainly the proviso to Section 38H would have applied. However what is required to be noticed is, by the said amendment Act itself, Sub-section (1A) to Section 38H has been incorporated with effect from the same date i.e. 1-4-2003. The said Sub-section (1A) provides that the zoo shall not be established without obtaining the prior approval of the appropriate authority on and after the commencement of Wild Life (Protection) (Amendment) Act 2002.
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7. In the said circumstance, a combined reading of Section 2(39) and 38H(1A) in the light of the amendments thereto would disclose that the proviso attached to sub-section (1) of Section 38H which existed in the original form was in relation to definition of "Zoo" which existed prior to amendment. The circus has been incorporated to be considered as a Zoo only after the amendment and by amendment to Section 38H by incorporating Sub-section (1A) the requirement of prior approval has been indicated only for commencing of rescue centres or zoo which relates to a circus but does not specify about existing circus. Therefore in respect of a circus which existed prior to the Amendment Act which was included in the definition of zoo, a similar proviso as contained in the proviso to sub-section (1) requiring registration of the existing "Zoo" also when it was earlier incorporated by 1972 amendment has not been incorporated relating to circus which existed as on the date of the amendment, but by Sub-section (1A) it was made 10 as a requirement for establishing. This would be more clear if proviso to Sub-section (1) is read in terms of its requirement when the Amendment Act 1991 was passed in respect of zoo which existed as on that date wherein a provision had been made granting 18 months time for filing the application in respect of existing zoo.
8. Therefore, in such circumstance, when the 'circus' was not included in the definition of 'zoo' prior to the Amendment Act and by the amendment when it was incorporated and requirements for recognition was also incorporated in Section 38H through sub-section(1A), the same would apply only to circus which are commenced subsequent to the Amendment Act. However with regard to other regulations including the one under Section 38-I, it would apply if acquired or alienation is made, as such action would be after amendment. If that be the position, in the instant case, as there is no dispute with regard to the fact that the petitioner-circus had been established 11 much prior to the Amendment Act itself, the requirement of filing application would not apply to the case of the petitioner. In that view, the consideration of the application in any event would not arise. In that light, if the impugned communication is perused the request which has been rejected by relying only on the said proviso also would not be sustainable.
9. Accordingly, the endorsement dated 29-6-2013 in its present form cannot be sustained. The same is accordingly quashed. A direction is issued to the 4th respondent to consider the request of the petitioner dehors the communication dated 1-4-2013 addressed by the 2nd respondent to the 4th respondent. In this regard, since I have arrived at the conclusion that the endorsement dated 29-6-2013 is not sustainable and at that juncture, since the request of the petitioner for shifting the elephants to Kengeri was not issued and subsequently thereafter, by the interim order of this Court, 12 they had shifted the elephants and presently since location of circus is also being shifted from time to time, the applications made by the petitioner at the time of shifting circus from one place to another, to the 4th respondent shall be considered by them as was being done earlier and in the manner as indicated above.
In terms of the above, the petition stands disposed of.
Sd/-
JUDGE Ia