Vishalakshi Amma vs The State Of Kerala

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1720/2023 (@ SLP (C) NO. 15232 / 2020) Vishalakshi Amma ...Appellant(s) Versus State of Kerala & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 29.05.2020 passed by the

Division Bench of the High Court of Kerala at Ernakulam

in Writ Appeal No. 109/2020, by which, the Division

Bench of the High Court has allowed the said appeal

preferred by the State of Kerala and others ­ respondent(s)

herein and has quashed and set aside the judgment and

order passed by the learned Single Judge in Writ Petition

No. 4772/2019, by which the learned Single Judge

disposed of the said writ petition by directing the Signature Not Verified Digitally signed by R Natarajan appellants herein to consider the declaration made by the Date: 2023.03.17 14:30:31 IST Reason:

original writ petitioner under Rule 11 of the Declaration of

1 Wild Life Stock Rules, 2003 (hereinafter referred to as the

Rules, 2003) by relaxing the time to file such a declaration

in case the time is relaxed in any other case, the original

writ petitioner has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as

under: ­

2.1 Under Section 40 of the Wild Life (Protection) Act, 1972

(hereinafter referred to as the Act, 1972), every person

having at the commencement of this Act the control,

custody or possession of any captive animal specified in

Schedule I or Part II of Schedule II or animal article…... or

the musk of a musk deer or the horn of a rhinoceros, shall,

within thirty days from the commencement of this Act,

declare to the Chief Wild Life Warden or the authorised

officer the number and description of the animal, or article

of the foregoing description under his control, custody or

possession and the place where such animal or article is

kept. As per sub­section (2) of Section 40, no person shall,

after the commencement of this Act, 1972, acquire,

receive, keep in his control, custody or possession, the

animal specified in Schedule I or Part II of Schedule II or

2 any animal article including the deer horn, except with the

previous permission in writing of the Chief Wild Life

Warden or the authorised officer. However, Section 40A of

the Act, 1972, is an exception and gives immunity in

certain cases. As per Section 40A, notwithstanding

anything contained in sub­sections (2) and (4) of Section

40 of this Act, the Central Government may, by

notification, require any person to declare to the Chief Wild

Life Warden or the authorised officer, any captive animal,

animal article….. in his control, custody or possession, in

respect of which no declaration had been made under sub­

section (1) or sub­section (4) of Section 40, in such form,

in such manner and within such time as may be

prescribed. Sub­section (2) of Section 40, provides that any

action taken or purported to be taken for violation of

Section 40 of the Act, 1972 at any time before the

commencement of the Wild Life (Protection) Amendment

Act, 2002 shall not be proceeded with and all pending

proceedings shall stand abated.

2.2 In exercise of the powers conferred under Section 40A read

with Section 63 of the Act, 1972, the Central Government

3 had made “the Declaration of Wild Life Stock Rules, 2003.”

Rule 3 to 14 read as under: ­

“3. Publicity of intent of notification and Assistance in making application.—(1) The Chief Wild Life Warden or the officer authorised 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 authorised 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.

4. Procedure for filing applications.—(1) An application to the Chief Wild Life Warden or the officer authorised 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 authorised legal practitioner or sent by registered post addressed to the Chief Wild Life Warden or the officer authorised by the State Government in this regard of the concerned State or the Union Territory.

(2) The application under sub­rule (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 authorised by the State Government in this regard in acknowledgement of the receipt of the application.

5. Presentation and scrutiny of applications. —(1) The Chief Wild Life Warden or the officer authorised by the State Government in this regard shall endorse on every application the date on which it

4 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 sub­rule (3), the Chief Wild Life Warden or the officer authorised by the State Government in this regard may, by order and for the reasons to be recorded in writing, decline to register the application.

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

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

8. Decision on applications.—(1) The Chief Wild Life Warden or the officer authorised 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.

9. Hearing on application ex parte.—Where on the date fixed for hearing the application, the applicant fails to appear without intimation, the Chief Wild Life Warden or the officer authorised by the State Government in this regard may at their discretion adjourn or decide the application ex parte.

10. Inquiry by the Chief Wild Life Warden or Authorised Officer.—(1) The Chief Wild Life Warden

5 or the officer authorised by the State Government in this regard shall conduct a detailed inquiry and take all actions as provided in Section 41 of the Act.

(2) A copy of the report pertaining to sub­rule (1) of this rule, shall be provided to the applicant.

11. Certificate of ownership.—(1) The Chief Wild Life Warden shall provide a certificate of ownership to the applicant whose claim is found valid.

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

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

12. Dealing with declared objects.—Any captive animal, animal article, trophy or uncured trophy declared under sub­section (1) of Section 40­A and in respect of which certificate of ownership has not been granted or obtained, shall be treated as government property.

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

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

Therefore, as per Rule 4(2), the application to the Chief

Wild Life Warden for such declaration, shall have to be

presented in the prescribed format within a period of 180

days from the date of publication of these rules.

2.3 In the present case, the aforesaid Rules, 2003 came to be

published on 18.04.2003. Therefore, 180 days to file the

6 application/declaration expired on 18.10.2003. The

appellant herein filed the application/declaration on

25.05.2011 that was beyond the prescribed period

provided under Rule 4(2) of the Rules, 2003. The

authorised authority refused to issue ownership certificate

in respect of the deer horn found from her house and

which was in custody and possession of the appellant on

the ground that the application/declaration was made

beyond the prescribed period provided under Rule 4(2) of

the Rules, 2003. The appellant herein preferred writ

petition before the learned Single Judge. The learned

Single Judge disposed of the said writ petition by directing

the Chief Wild Life Warden to consider whether time has

been relaxed in any case for the purpose of granting the

certificate of ownership and if so, under what

circumstances, and if it is found that time has been

relaxed in any case, consider the representation made on

behalf of the appellant also in that background. The order

passed by the learned Single Judge was the subject matter

of the present writ appeal before the Division Bench of the

High Court.

7 2.4 By the impugned judgment and order the Division Bench

of the High Court has allowed the said appeal by observing

that the time limit prescribed under Rule 4(2) of the Rules,

2003 cannot be relaxed and/or the period cannot be

extended. Consequently, the Division Bench of the High

Court has set aside the order passed by the learned Single

Judge which has given rise to the present appeal.

3. Shri Lakshmeesh S. Kamath, learned counsel appearing

on behalf of the appellant has vehemently submitted that

the time prescribed under Rule 4(2) of the Rules, 2003 is

not mandatory and can be relaxed in a given case. It is

submitted that in the present case, the deer horn was

found from the first floor of the house which is an old

house and the appellant came to know about that in the

year 2011.

3.1 It is submitted that even after the application is made for

ownership certificate/declaration, the appropriate

authority/Chief Wild Life Warden is required to hold an

enquiry and only thereafter, the ownership certificate can

be issued. It is submitted that therefore, no prejudice shall

8 be caused if the application for ownership

certificate/declaration is made beyond the prescribed

period provided under Rule 4(2) of the Rules, 2003.

3.2 Learned counsel appearing on behalf of the appellant has

vehemently relied upon the decision of the Madras High

Court in the case of C.D. Gopinath Vs. State of Tamil

Nadu and Ors. (2010 SCC Online Mad 2851).

4. Shri Abraham C. Mathew, learned counsel appearing on

behalf of the respondent(s) while taking us to the relevant

provisions of the Act, 1972 and Rules, 2003 has

vehemently submitted that the time limit prescribed under

Rule 4(2) is mandatory. It is submitted that as per Section

40A under which the Rules are framed under which a

person in control, custody or possession of the wildlife

animal or wildlife article etc., can apply for ownership

certificate by making a declaration. It is submitted that

looking to the object and purpose of Section 40 and 40A

and the Rules, 2003 and when the specific time limit has

been prescribed to submit an application for ownership

certification/declaration, the same has to be adhered to as

observed and held by the High Court by the impugned 9 judgment and order. It is submitted that any other view

shall frustrate the object and purpose of Section 40 and

40A and the Rules framed in exercise of powers under

Section 40A of the Act, 1972.

5. We have heard learned counsel appearing on behalf of the

respective parties at length and have gone through the

relevant provisions of the Act, 1972 and Rules, 2003. On

and after coming into force of the Act, 1972, there is

bar/restriction on keeping in custody or in possession of

the captive animal specified in Schedule I or Part II of

Schedule II or animal article etc., including the musk of a

musk deer or the horn of a rhinoceros. However, Section

40A grants immunity in certain cases. As per Section 40A,

notwithstanding anything contained in sub­sections (2)

and (4) of Section 40 of the Act, 1972, the Central

Government may, by notification, require any person to

declare to the Chief Wild Life Warden or the authorised

officer, any captive animal, animal article, etc., in his

control, custody or possession, in respect of which no

declaration had been made under sub­section (1) or sub­

section (4) of Section 40 and in exercise of powers

10 conferred under Section 40A, the Central Government has

framed the Rules, 2003. As per Rule 4(2),

application/declaration under sub­rule (1) of Rule 4 for

ownership certificate has to be made within a period of 180

days from the date of commencement of the Rules, 2003.

Looking to the object and purpose of Sections 40 and 40A

and the object and purpose for which Rules, 2003 has

been enacted the period of 180 days prescribed under Rule

4(2) has to be construed and considered 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 the Rules, 2003, the Chief Wild Life Warden or the

officer authorised by the State Government was duty

bound to give wide publicity to the intent of this

notification in the regional language through electronic or

print media or such other means. The sub­rule (2) of Rule

3 cast duty upon such officer to 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 requirement

11 prescribed under Rule 4(1). Thus, nobody can plead any

ignorance and/or nobody can plead that he had no

knowledge to make such declaration and/or application for

ownership certificate and that too, within a period of 180

days as per Rule 4(2) of the Rules, 2003. Therefore, once a

person in control, custody or possession of any wildlife

animal or wildlife animal article, fails to file such

declaration and/or fails to make any application within the

stipulated time mentioned in Rule 4(2) then the bar/rigour

under Section 40 shall be applicable and the ownership of

such wildlife animal article of which the declaration is not

made shall vest in the Government/forest department.

6. In view of the aforesaid facts and circumstances, the

Division Bench of the High Court has rightly observed that

the application submitted by the appellant herein which

was made beyond the period prescribed under Rule 4(2)

was liable to be rejected and was rightly rejected by the

appropriate authority/Chief Wild Life Warden. We are in

complete agreement with the view taken by the Division

Bench of the High Court.

12 6.1 Now so far as the reliance placed upon the decision of the

Madras High Court in the case of C.D. Gopinath (supra)

relied upon by learned counsel appearing on behalf of the

appellant is concerned, as such on facts the said decision

shall not be applicable to the facts of the case on hand.

Even otherwise, in view of the discussions hereinabove, we

are not in agreement with the view taken by the learned

Single Judge that the 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

see no reason to interfere with the impugned judgment

and order passed by the High Court. Consequently, the

present appeal fails and the same deserves to be dismissed

and is accordingly dismissed.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. MARCH 17, 2023 [MANOJ MISRA]

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