[2023] 2 S.C.R. 1081 1081
VISHALAKSHI AMMA A
v.
STATE OF KERALA & ORS.
(Civil Appeal No. 1720 of 2023)
MARCH 17, 2023 B
[M. R. SHAH AND MANOJ MISRA, JJ.]
Wildlife (Protection Act), 1972: ss. 40, 40A – Time for
declaration of custody or possession of any captive animal or animal
article – Relaxation of – On facts, the appellant filed the application/
C
declaration on 25.05.2011 much beyond the prescribed period –
Refusal of the authorised authority to issue ownership certificate
in respect of the deer horn found from the house of the appellant
which was in custody and possession of the appellant on the ground
of delay in the application/declaration – Writ petition by the
appellant – Single Judge directed the Chief Wild Life Warden to D
consider whether time has been relaxed in any case for the purpose
of granting the certificate of ownership – Division Bench set aside
the order passed by the Single Judge holding that the time limit
prescribed u/r. 4(2) cannot be relaxed and/or extended – Interference
with – Held: Not called for – Period of 180 days prescribed u/r.
E
4(2) has to be construed and considered as mandatory – Nobody
can plead any ignorance or that he had no knowledge to make
such declaration/application for ownership certificate – Thus, once
a person in control, custody or possession of any wildlife animal or
wildlife animal article, fails to file such declaration/application within
the stipulated time mentioned in r. 4(2) then the bar/rigour u/s.40 F
would be applicable and the ownership of such wildlife animal
article of which the declaration is not made shall vest in the
Government/forest department – Division Bench rightly held that
the application submitted by the appellant was made beyond the
period prescribed u/r. 4(2) and was rightly rejected by the
G
appropriate authority/Chief Wild Life Warden – Wild Life Stock
Rules, 2003.
C. D. Gopinath v. State of Tamil Nadu and Ors.
2010 SCC Online Mad 2851 - referred to.
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1081
1082 SUPREME COURT REPORTS [2023] 2 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1720
of 2023.
From the Judgment and Order dated 29.05.2020 of the High Court
of Kerala at Ernakulam in WA No. 109 of 2020.
Lakshmeesh S. Kamath, Ms. Samriti Ahuja, Advs. for the
B Appellant.
Abraham C. Mathew, Nishe Rajen Shonker, Mrs. Anu K Joy,
Alim Anvar, Advs. for the Respondents.
The Judgment of the Court was delivered by
C 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
D 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 appellants herein
to consider the declaration made by the original writ petitioner under
Rule 11 of the Declaration of Wild Life Stock Rules, 2003 (hereinafter
E
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: -
F
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,
G 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 sub-section (2) of Section 40, no person shall, after the
H commencement of this Act, 1972, acquire, receive, keep in his control,
VISHALAKSHI AMMA v. STATE OF KERALA & ORS. 1083
[M. R. SHAH, J.]
custody or possession, the animal specified in Schedule I or Part II of A
Schedule II or 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 sub-sections (2) and (4) of Section 40 of this Act,
B
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
sub-section (4) of Section 40, in such form, in such manner and within
such time as may be prescribed. Sub-section (2) of Section 40, provides C
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 D
with Section 63 of the Act, 1972, the Central Government 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 E
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 F
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. G
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
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1084 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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 sub-rule (1) shall be presented in
B 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
C 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
D Government in this regard shall endorse on every application the
date on which it 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.
E (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
F allowed under sub-rule (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
G 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
H and time of hearing of each application, if required.
VISHALAKSHI AMMA v. STATE OF KERALA & ORS. 1085
[M. R. SHAH, J.]
8. Decision on applications.—(1) The Chief Wild Life A
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 B
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 C
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 or the
officer authorised by the State Government in this regard shall D
conduct a detailed inquiry and take all actions as provided in Section
41 of the Act.
(2) A copy of the report pertaining to sub-rule (1) of this
rule, shall be provided to the applicant.
11. Certificate of ownership.—(1) The Chief Wild Life E
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.
F
(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 sub-section G
(1) of Section 40-A and in respect of which certificate of ownership
has not been granted or obtained, shall be treated as government
property.
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1086 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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
B 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.
C 2.3 In the present case, the aforesaid Rules, 2003 came to be
published on 18.04.2003. Therefore, 180 days to file the 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
D 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
E 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
F learned Single Judge was the subject matter of the present writ appeal
before the Division Bench of the High Court.
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
G 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
H
VISHALAKSHI AMMA v. STATE OF KERALA & ORS. 1087
[M. R. SHAH, J.]
in a given case. It is submitted that in the present case, the deer horn A
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 B
ownership certificate can be issued. It is submitted that therefore, no
prejudice shall 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 C
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 D
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 E
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 judgment and order. It is submitted that any other view shall
frustrate the object and purpose of Section 40 and 40A and the Rules F
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 G
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 sub-sections (2)
and (4) of Section 40 of the Act, 1972, the Central Government may, by
H
1088 SUPREME COURT REPORTS [2023] 2 S.C.R.
A 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 sub-section (1) or sub- section (4) of Section 40 and in
exercise of powers conferred under Section 40A, the Central Government
has framed the Rules, 2003. As per Rule 4(2), application/declaration
B
under sub-rule (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
C 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
D this notification in the regional language through electronic or print media
or such other means. The sub-rule (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
prescribed under Rule 4(1). Thus, nobody can plead any ignorance and/
E 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
F 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
G 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.
H
VISHALAKSHI AMMA v. STATE OF KERALA & ORS. 1089
[M. R. SHAH, J.]
6.1 Now so far as the reliance placed upon the decision of the A
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 B
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 C
deserves to be dismissed and is accordingly dismissed.
Nidhi Jain Appeal dismissed.
(Assisted by : Abhishek Pratap Singh, LCRA)
D
E
F
G
H