Kerala High Court
Principal Chief Conservator Of Forests ... vs P.Koya on 31 January, 2020
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941
WA.No.96 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 32836/2019(D) OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS IN W.P.(C):
1 PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE) AND
CHIEF WILDLIFE WARDEN,
KERALA STATE FOREST AND WILDLIFE DEPARTMENT, FOREST
HEADQUARTERS, VANALAKSHMI, VAZHUTHACAUD,
THIRUVANANTHAPURAM.
2 ASSISTANT CONSERVATOR OF FORESTS,
SOCIAL FORESTRY DIVISION, CIVIL STATION,
MALAPPURAM-676505.
3 THE RANGE FOREST OFFICER,
SOCIAL FORESTRY DIVISION, CIVIL STATION,
MALAPPURAM-676505.
BY GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN W.P.(C):
1 P.KOYA,
S/O. MUHAMMED KUTTY, RESIDING AT ILLIKKAL HOUSE,
KAVUPPASI, PALLIKKAL BAZAR P.O., MALAPPURAM DISTRICT-
673634.
2 P.C. SAIDALIKUTTY,
THETHADATH HOUSE, PUTHUR, PALLIKKAL, MALAPPRUAM
DISTRICT-673636.
3 SHARAFUDHEEN P.,
S/O. MUHAMMED KUTTY, ILLIKKAL HOUSE, PALLIKKAL P.O.,
MALAPPURAM DISTRICT-673634.
SPL GP SRI.SANDESH RAJA.K,
SRI.IMAM GRIGORIOS KARAT FOR RESPONDENTS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.96 OF 2020 2
JUDGMENT
S.MANIKUMAR Short judgment made in W.P.(C) No.32836/2019 dated 4.12.2019 impugned before us is extracted hereunder:
" JUDGMENT The grievance of the petitioners in the writ petition concerns the delay on the part of the second respondent in considering Ext.P9 application preferred by the petitioners seeking permission to use the captive elephant for the procession in connection with the festival of the Temple referred to in the writ petition. The festival referred to in the writ petition is scheduled to take place on 05.12.2019.
2. Today, when this matter was taken up, it was pointed out by the learned Special Government Pleader that the request made by the petitioners has been rejected. A copy of the order passed in this regard was made available to the court, which reads thus:
"ഈ ഡ വ ഷന ല OR-01/2018 നമര ക സ ല Podma
(Micro Chip No.961001000004861) എന ന ട നല
ല ണ ഏല ട ത പര പ കന ക ക മ ത മ
ച#ട ല ത$#. പ .ഷറഫ ദ#ന 50 ക* ര+പ ലട ക, ണനലറ
അട സ നതല വ ട/നല ട/ള * എന ല ട
ക, ണല പറ ന വ1വസ ള *ഘ ച ലനതടരന OR-
06/2019 നമര ക സ ല ഉളല5ട ട/ള ന * Podma (Micro
Chip No.961001000004861) എന ന ട നല ഉതവതന
എഴ നള5 കന ന ള അന മ കള അകപക
പര ഗണ കവ ന ന ര; ഹമ = എന വ വര*
അറ കന ."
3 .As evident from the extracted portion of the order, it is seen that the application has been rejected on the ground that the petitioners have violated the terms of the bond earlier executed by the persons concerned for release of the elephant in connection with an offence committed in relation to WA.No.96 OF 2020 3 the elephant. According to me, the same may not be a reason at all for refusing permission to use the elephant for Temple procession.
In the said view of the matter, this writ petition is allowed and the second respondent is directed to issue the permission sought for by the petitioners as per Ext.P9 forthwith, if such permission would not contravene the direction issued by the Apex Court in Wildlife Rescue and Rehabilitation Centre and Others v. Union of India and Others (2016 KHC 2307)."
3. Impugned judment is appealed in the following grounds:
A) The judgment of the Hon'ble High Court allowing the writ petition literally setting aside the reasons stated in the order dated 04.12.2019 rejecting the application of the petitioners without even a challenge to the same and without even giving an opportunity for the forest Department to file a counter affidavit is per se illegal and in violation of the principles of natural justice.
B) The judgment of the learned Single Judge giving permission to use the elephant for temple procession which is involved in 2 offences in connection with the Wildlife Protection Act is also in violation of the provisions of the Wildlife Protection Act, 1972.
C) The judgment of the learned Single Judge allowing the writ petition finding reasons in the rejection order dated 04.12.2019 that the petitioner has violated the terms of the bond executed by the persons concerned for release of the elephant in connection with the offence committed in relation to the elephant cannot be a reasoning at all for refusing the permission of use of elephant for temple procession is without jurisdiction and against the basic principle of natural justice and thus illegal.
D) The learned Single judge has allowed the writ petition virtually setting aside the order passed by the Asst. Conservator of Forests, WA.No.96 OF 2020 4 Social Forestry Division, Malappuram rejecting the permission to use the elephant for temple procession is without even a challenge to the above order and without opportunity to the state to file a counter affidavit supporting the reasons for rejecting the permission. E) The learned Single Judge has allowed the writ petition allowing the permission to use the elephant for temple procession without even giving sufficient opportunity to the respondent to file counter affidavit.
Therefore the judgment of the learned Single Judge is illegal and is to be set aside.
F) The reasoning of the learned Single Judge that the violation of the terms of the bond earlier executed by the persons concerned for release of elephant in connection with an offence committed in relation to the elephant cannot be a reason for refusing permission to use the elephant for temple procession is illegal as there are no sufficient reasoning in the judgment to find that the above said elephant can be used for temple procession.
G) The learned Single Judge ought to have held that the elephant which has been seized by the Wildlife Department and which has been temporarily given to one Sharafudheen.P on making 'kaichit executing bond worth 15 lakhs for the upkeep and maintenance of the captive elephant by providing water, food, etc. cannot be used for temple procession or any other purpose.
4. On the above grounds, learned counsel for appellants made submissions and sought for reversal.
5. Mr.Imam Grigorius Karat, learned counsel for respondents, made a feeble attempt to sustain the impugned judgment.
WA.No.96 OF 2020 56. Heard the learned counsel for the parties and perused the material on record.
7. Annexure A1, proceedings dated 4.12.2019 of the Assistant Conservator of Forest, Social Forestry Division, Malappuram, appellant No.2 is the order of rejection of request made by respondent Nos.1 and 3 in an application dated 27.11.2019.
8. Contending inter alia that Exts.P7 and P9 representations are not being considered, writ petitioners/respondents 1 to 3 herein, have sought a writ of mandamus directing the 2nd respondent to grant permission to use the captive elephant viz., Podma (Microchip No.961001000004861) in connection with the temple festival scheduled on 5.12.2019. Ext.P9 representation has been already rejected on 4.12.2019 itself, i.e., much prior to the filing of the writ appeal. When the competent authority has rejected the request for the violation of the conditions, respondent No.1 ought to have challenged the same before the appropriate forum. So also, the writ court ought not to have directed the 2 nd respondent/appellant No.2 herein, to issue permission for the use of elephant in the temple festival. A writ of mandamus cannot be issued to set at naught a proceeding issued without challenging the same and there cannot be a collateral challenge to the same.
WA.No.96 OF 2020 6In that view of the matter, the impugned judgment is liable to be set aside and accordingly it is set aside. However, liberty is given to the writ petitioners/respondents to challenge the order of rejection, if so advised.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
WA.No.96 OF 2020 7
APPENDIX
APPELLANTS ANNEXURE:
ANNEXURE A1 TRUE COPY OF THE ORDER NO. E-2414/2019
DATED 04/12/2019 (WITH TRANSLATION).