Full Judgment Text
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)
J U D G M E N T
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
appellants herein to consider the declaration made by the
Digitally signed by R
Natarajan
Date: 2023.03.17
14:30:31 IST
Reason:
original writ petitioner under Rule 11 of the Declaration of
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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
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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
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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
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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.
.—Where on
9. Hearing on application ex parte
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
.—(1) The Chief Wild Life Warden
Authorised Officer
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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.
.—Any
12. Dealing with declared objects
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
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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.
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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
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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
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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
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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
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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.
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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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