VISHALAKSHI AMMA versus STATE OF KERALA & ORS on 17 March 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 29.05.2020 passed by the Division Bench of the HighCourt of Kerala at Ernakulam in Writ Appeal No. 109/2020, by which,the Division Bench of the High Court has allowed the said appealDpreferred by the State of Kerala and others - respondent(s) herein andhas quashed and set aside the judgment and order passed by the learnedSingle Judge in Writ Petition No. 4772/2019, by which the learned SingleJudge disposed of the said writ petition by directing the appellants hereinto consider the declaration made by the original writ petitioner underRule 11 of the Declaration of Wild Life Stock Rules, 2003 (hereinafterEreferred to as the Rules, 2003) by relaxing the time to file such adeclaration in case the time is relaxed in any other case, the original writpetitioner has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asunder: -F

2. The facts leading to the present appeal in a nutshell are asunder: -F

2.1 Under Section 40 of the Wild Life (Protection) Act, 1972(hereinafter referred to as the Act, 1972), every person having at thecommencement of this Act the control, custody or possession of anycaptive animal specified in Schedule I or Part II of Schedule II or animalarticle… or the musk of a musk deer or the horn of a rhinoceros, shall,Gwithin thirty days from the commencement of this Act, declare to theChief Wild Life Warden or the authorised officer the number anddescription of the animal, or article of the foregoing description under hiscontrol, custody or possession and the place where such animal or articleis kept. As per sub-section (2) of Section 40, no person shall, after theHcommencement of this Act, 1972, acquire, receive, keep in his control, custody or possession, the animal specified in Schedule I or Part II ofSchedule II or any animal article including the deer horn, except with theprevious permission in writing of the Chief Wild Life Warden or theauthorised officer. However, Section 40A of the Act, 1972, is an exceptionand gives immunity in certain cases. As per Section 40A, notwithstandinganything contained in sub-sections (2) and (4) of Section 40 of this Act,the Central Government may, by notification, require any person to declareto the Chief Wild Life Warden or the authorised officer, any captiveanimal, animal article….. in his control, custody or possession, in respectof which no declaration had been made under sub- section (1) orsub-section (4) of Section 40, in such form, in such manner and withinsuch time as may be prescribed. Sub-section (2) of Section 40, providesthat any action taken or purported to be taken for violation of Section 40of the Act, 1972 at any time before the commencement of the Wild Life(Protection) Amendment Act, 2002 shall not be proceeded with and allpending proceedings shall stand abated.

2.2 In exercise of the powers conferred under Section 40A readwith Section 63 of the Act, 1972, the Central Government had made“the Declaration of Wild Life Stock Rules, 2003.” Rule 3 to 14 read asunder: - “3. Publicity of intent of notification and Assistancein making application.—(1) The Chief Wild Life Warden or theofficer authorised by the State Government in this regard shallcause to give wide publicity to the intent of this notification in theregional language through electronic or print media or such othermeans.

(2) The Chief Wild Life Warden or the officer authorisedby the State Government in this regard shall take necessary actionto assist the local communities and individuals especially the poorand illiterate in the declaration of their possession, filling up thespecified form and any other matter connected therewith and shallmake every attempt to ensure that no individual or communityassociated with animals is deprived of this opportunity.

4. Procedure for filing applications.—(1) An applicationto the Chief Wild Life Warden or the officer authorised by theState Government in this regard shall be presented in the Formannexed to these rules by the applicant either in person or by an A

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agent or by duly authorised legal practitioner or sent by registeredpost addressed to the Chief Wild Life Warden or the officerauthorised by the State Government in this regard of the concernedState or the Union Territory.

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(2) The application under sub-rule (1) shall be presented infour complete sets within a period of one hundred and eighty daysfrom the date of publication of these rules.

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(3) The applicant may attach to and present with hisapplication an acknowledgement slip as is given in the Form whichshall be signed by the official receiving the application on behalfof the Chief Wild Life Warden or the officer authorised by theState Government in this regard in acknowledgement of the receiptof the application.

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5. Presentation and scrutiny of applications.—(1) TheChief Wild Life Warden or the officer authorised by the StateDGovernment in this regard shall endorse on every application thedate on which it is presented or deemed to have been presentedunder that rule and shall sign the endorsement.

(2) If on scrutiny, the application is found to be in order, itshall be duly registered and given serial number.

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(3) If the application, on scrutiny, is found to be defective,the same shall be returned to the applicant within fifteen days forrectifying the defects and resubmitting the corrected applicationwithin fifteen days from the date of its receipt.

(4) If the applicant fails to rectify the defect within the timeallowed under sub-rule (3), the Chief Wild Life Warden or theofficer authorised by the State Government in this regard may, byorder and for the reasons to be recorded in writing, decline toregister the application.

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6. Place of filing application.—The applicant shall fileapplication with the Chief Wild Life Warden or the officerauthorised by the State Government in this regard.

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7. Date and place of hearing to be notified.— The ChiefWild Life Warden or the officer authorised by the StateGovernment in this regard shall notify to the parties the date, placeand time of hearing of each application, if required.

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8. Decision on applications.—(1) The Chief Wild LifeWarden or the officer authorised by the State Government in thisregard shall verify the facts mentioned in the application and makesuch 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 itspresentation and communicate the same to the applicant in writingunder his own signature by registered post.

9. Hearing on application ex parte.—Where on the datefixed for hearing the application, the applicant fails to appearwithout intimation, the Chief Wild Life Warden or the officerauthorised by the State Government in this regard may at theirdiscretion adjourn or decide the application ex parte.

10. Inquiry by the Chief Wild Life Warden orAuthorised Officer.—(1) The Chief Wild Life Warden or theofficer authorised by the State Government in this regard shallconduct a detailed inquiry and take all actions as provided in Section41 of the Act.

(2) A copy of the report pertaining to sub-rule (1) of thisrule, shall be provided to the applicant.

11. Certificate of ownership.—(1) The Chief Wild LifeWarden shall provide a certificate of ownership to the applicantwhose claim is found valid.

(2) The certificate of ownership shall be provided as perthe provisions of Section 42 of the Act.

(3) The certificate of ownership shall contain the facsimileof the identification mark and in case of live animals theidentification number of the transponder (microchip) implantedshall be mentioned in the certificate.

12. Dealing with declared objects.—Any captive animal,animal article, trophy or uncured trophy declared under sub-section(1) of Section 40-A and in respect of which certificate of ownershiphas not been granted or obtained, shall be treated as governmentproperty.

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13. Order to be signed and dated.—Every order of theChief Wild Life Warden shall be in writing and shall be signed anddated by the Chief Wild Life Warden.

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14. Communication of order to parties.— Every orderpassed on the application shall be communicated to the applicantBeither in person or by registered post free of cost.”

Therefore, as per Rule 4(2), the application to the Chief Wild LifeWarden for such declaration, shall have to be presented in the prescribedformat within a period of 180 days from the date of publication of theserules.

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2.3 In the present case, the aforesaid Rules, 2003 came to bepublished on 18.04.2003. Therefore, 180 days to file the application/declaration expired on 18.10.2003. The appellant herein filed theapplication/declaration on 25.05.2011 that was beyond the prescribedperiod provided under Rule 4(2) of the Rules, 2003. The authorisedDauthority refused to issue ownership certificate in respect of the deerhorn found from her house and which was in custody and possession ofthe appellant on the ground that the application/declaration was madebeyond the prescribed period provided under Rule 4(2) of the Rules,2003. The appellant herein preferred writ petition before the learnedSingle Judge. The learned Single Judge disposed of the said writ petitionEby directing the Chief Wild Life Warden to consider whether time hasbeen relaxed in any case for the purpose of granting the certificate ofownership and if so, under what circumstances, and if it is found thattime has been relaxed in any case, consider the representation made onbehalf of the appellant also in that background. The order passed by theFlearned Single Judge was the subject matter of the present writ appealbefore the Division Bench of the High Court.

2.4 By the impugned judgment and order the Division Bench ofthe High Court has allowed the said appeal by observing that the timelimit prescribed under Rule 4(2) of the Rules, 2003 cannot be relaxedGand/or the period cannot be extended. Consequently, the Division Benchof the High Court has set aside the order passed by the learned SingleJudge which has given rise to the present appeal.

3. Shri Lakshmeesh S. Kamath, learned counsel appearing onbehalf of the appellant has vehemently submitted that the time prescribedunder Rule 4(2) of the Rules, 2003 is not mandatory and can be relaxedH

in a given case. It is submitted that in the present case, the deer hornwas found from the first floor of the house which is an old house and theappellant came to know about that in the year 2011.

3.1 It is submitted that even after the application is made forownership certificate/declaration, the appropriate authority/Chief WildLife Warden is required to hold an enquiry and only thereafter, theownership certificate can be issued. It is submitted that therefore, noprejudice shall be caused if the application for ownership certificate/declaration is made beyond the prescribed period provided under Rule4(2) of the Rules, 2003.

3.2 Learned counsel appearing on behalf of the appellant hasvehemently relied upon the decision of the Madras High Court in thecase of C.D. Gopinath Vs. State of Tamil Nadu and Ors. (2010SCC Online Mad 2851).

4. Shri Abraham C. Mathew, learned counsel appearing on behalfof the respondent(s) while taking us to the relevant provisions of theAct, 1972 and Rules, 2003 has vehemently submitted that the time limitprescribed under Rule 4(2) is mandatory. It is submitted that as perSection 40A under which the Rules are framed under which a person incontrol, custody or possession of the wildlife animal or wildlife articleetc., can apply for ownership certificate by making a declaration. It issubmitted that looking to the object and purpose of Section 40 and 40Aand the Rules, 2003 and when the specific time limit has been prescribedto submit an application for ownership certification/declaration, the samehas to be adhered to as observed and held by the High Court by theimpugned judgment and order. It is submitted that any other view shallfrustrate the object and purpose of Section 40 and 40A and the Rulesframed in exercise of powers under Section 40A of the Act, 1972.

5. We have heard learned counsel appearing on behalf of therespective parties at length and have gone through the relevant provisionsof the Act, 1972 and Rules, 2003. On and after coming into force of theAct, 1972, there is bar/restriction on keeping in custody or in possessionof the captive animal specified in Schedule I or Part II of Schedule II oranimal article etc., including the musk of a musk deer or the horn of arhinoceros. However, Section 40A grants immunity in certain cases. Asper Section 40A, notwithstanding anything contained in sub-sections (2)and (4) of Section 40 of the Act, 1972, the Central Government may, by A

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Anotification, require any person to declare to the Chief Wild Life Wardenor the authorised officer, any captive animal, animal article, etc., in hiscontrol, custody or possession, in respect of which no declaration hadbeen made under sub-section (1) or sub- section (4) of Section 40 and inexercise of powers conferred under Section 40A, the Central Governmenthas framed the Rules, 2003. As per Rule 4(2), application/declarationBunder sub-rule (1) of Rule 4 for ownership certificate has to be madewithin a period of 180 days from the date of commencement of theRules, 2003. Looking to the object and purpose of Sections 40 and 40Aand the object and purpose for which Rules, 2003 has been enacted theperiod of 180 days prescribed under Rule 4(2) has to be construed andCconsidered as mandatory, otherwise the object and purpose of the Act,1972 and the Rules, 2003 shall be frustrated.

5.1 At this stage, it is required to be noted that as per Rule 3 of theRules, 2003, the Chief Wild Life Warden or the officer authorised by theState Government was duty bound to give wide publicity to the intent ofDthis notification in the regional language through electronic or print mediaor such other means. The sub-rule (2) of Rule 3 cast duty upon suchofficer to take necessary action to assist the local communities andindividuals especially the poor and illiterate in the declaration of theirpossession, filling up the specified form and any other requirementprescribed under Rule 4(1). Thus, nobody can plead any ignorance and/Eor nobody can plead that he had no knowledge to make such declarationand/or application for ownership certificate and that too, within a periodof 180 days as per Rule 4(2) of the Rules, 2003. Therefore, once aperson in control, custody or possession of any wildlife animal or wildlifeanimal article, fails to file such declaration and/or fails to make any Fapplication within the stipulated time mentioned in Rule 4(2) then thebar/rigour under Section 40 shall be applicable and the ownership ofsuch wildlife animal article of which the declaration is not made shallvest in the Government/forest department.

6. In view of the aforesaid facts and circumstances, the DivisionGBench of the High Court has rightly observed that the applicationsubmitted by the appellant herein which was made beyond the periodprescribed under Rule 4(2) was liable to be rejected and was rightlyrejected by the appropriate authority/Chief Wild Life Warden. We are incomplete agreement with the view taken by the Division Bench of theHigh Court.H

6.1 Now so far as the reliance placed upon the decision of theMadras High Court in the case of C.D. Gopinath (supra) relied uponby learned counsel appearing on behalf of the appellant is concerned, assuch on facts the said decision shall not be applicable to the facts of thecase on hand.

Even otherwise, in view of the discussions hereinabove, we arenot in agreement with the view taken by the learned Single Judge thatthe period prescribed under Rule 4(2) of the Rules, 2003 is directory.

7. In view of the above and for the reasons stated above, we seeno reason to interfere with the impugned judgment and order passed bythe High Court. Consequently, the present appeal fails and the samedeserves to be dismissed and is accordingly dismissed.

Nidhi Jain

Appeal dismissed.

(Assisted by : Abhishek Pratap Singh, LCRA)

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