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2001 DIGILAW 765 (PAT)

Ajanta Circus v. Union Of India

2001-08-21

R.M.PRASAD

body2001
Judgment R.M.Prasad, J. 1. In this writ application prayer is to quash Office Order No. 981 dated 23rd June, 2001 (Annexure-5) issued by the Director, Sanjay Gandhi Biological Park, Patna (respondent No. 5) in continuation of earlier letters bearing No. 978 dated 22nd June, 2001 (Annexure 5/B) and 979 dated 23rd June, 2001 (Annexure-5/A) directing the petitioner to hand over the lions, tigers, panthers, bears and monkeys to the designated Rescue Centres mentioned in D.O. letter dated 18th May, 2001 of the Additional Director General of Forest (Wild Life), Government of India (respondent No. 3), a copy of which was served vide aforesaid Letter No. 978 and has been annexed as Annexure-3. Besides this, the petitioner has also sought for direction to the respondents to pay the cost of such animals as indicated in their reply dated 24th June, 2001 (Annexure-4) and also to direct respondent No. 3 to pay a cost of Rs. 15,000.00 (fifteen thousand) per day from 23-6-2001 i.e., the date of stopping of the show of the said animals. It is also prayed that till such settlement is made by the Government, the said animals be not recovered by them. 2. In short, the relevant facts are that the petitioner-Ajanta Circus claims to be an old Circus having about 100 artists exhibiting their best performance for the entertainment of public, besides 200 more persons to help in the performance of the Circus. It is claimed that the petitioner has 22 lions and tigers and one bear and one monkey. The Government of India, in the Department of Environment and Forest, issued notification dated 14-10-1998 (Annexure-1) under Sec. 22 of the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as the Act) putting restriction on exhibition or training as performing animals, namely, bears, monkeys, tigers, panthers and lions with effect from the date of publication of the notification. The apex Court upheld the validity of the said notification in Civil Appeals No. 3609-3620 of 2001, vide judgment dated 1st May, 2001 (Annexure-2). The apex Court, however, noted that even with respect to the animais whose exhibition and training is prohibited, the Act does not prevent the owner from keeping them as domestic pets. At the same time, it was observed that it is going to be difficult to expect someone to have a lion or tiger as a pet. The apex Court, however, noted that even with respect to the animais whose exhibition and training is prohibited, the Act does not prevent the owner from keeping them as domestic pets. At the same time, it was observed that it is going to be difficult to expect someone to have a lion or tiger as a pet. It was held that it was the welfare of the animals which is of paramount consideration and it is only if the Government is satisfied on the basis of the materials on record that unnecessary pain or suffering is inflicted on an animal during the course of training or at the time when it is exhibited that a notification under Sec. 22 (ii) is issued. The apex Court held that the Act is silent with regard to the ownership of the animals with respect to whom a notification under Sec. 22 is issued, but inasmuch as the Circus owners keep the animals only for the purpose of training and exhibition them it must follow that they cannot retain them for that purpose. However, on the contention of the learned Counsel for the appellants of that case that no direction can be issued depriving the appellants of the ownership of the animals, the apex Court, in the facts and circumstances, declined to go into the said question as it was not found to be within the domain of the said proceedings and thus refrained from passing any order in respect thereto. 3. After the decision of the apex Court, the Director (respondent No. 5), vide letter No. 978 dated 22nd June, 2001 (Annexure 5-B) directed the management of the petitioner-Circus to (1) Stop the exhibition of the five species of wild animals viz. tigers, panthers, bears, lions and monkeys; (2) Produce the ownership certificates; (3) Do not shift the animals from the present location without prior permission of the Chief Wildlife Warden, Bihar, Patna; (4) Take proper health care of the animals and (5) Give the animals healthy diet and maintain their enclosures properly and, vide letter No. 979 dated 23rd June, 2001 (Annexure-5/A), while enclosing the copy of the order of the apex Court dated 1st May, 2001 (Annexure-2) for compliance, directed for taking necessary action to comply D.O. letter No. PPS/Addl. DGF (WL)/2001 dated 18th May, 2001 (Annexure-3). On the same day, vide impugned letter No. 981 (Annexure-5), respondent No. 5. DGF (WL)/2001 dated 18th May, 2001 (Annexure-3). On the same day, vide impugned letter No. 981 (Annexure-5), respondent No. 5. directed the management to hand over the lions, tigers, panthers, bears and monkeys to the designated Rescue Centres mentioned in the D.O. letter dated 18th May, 2001 issued by respondent No. 3. 4. The petitioner, in reply, sent on 24-6-2001 (Annexure-4), demanded for payment of price of the said animals and asked for an advance of Rs. 5 lacs for carrying them from Patna to Chennai with proper nourishment and attendants and also suggested that before executing transfer of animals from circuses, the authority may re-think and status quo be maintained till the arrangements are not made and the notification of 1998 may be modified to the extent that henceforth no training will be given to any animals and no entry of new animals to circus be made and maximum that they may exhibit the show for the entertainment of the public. 5. The petitioner has claimed that the Circus Federation is planning for a very big natural Zoo for all such animals of the Circus in a radius of about 25 square miles for visitors interested in natural sight seeing and to earn for maintaining the animals. It is alleged that the Government wants to take animals for protection and keep them in Zoo, though they have no place for it. According to the petitioner, the Government may take the animals which are born and brought up in the Circus Company on payment of the price as they are not the property of the Government. The petitioner has annexed the certificate of ownership of the animals in question as Annexure-7 series. 6. A counter-affidavit has been filed on behalf of the State Government and its officials, namely, Respondents Nos. 2,4 and 5 and a separate counter-affidavit has been filed on behalf of the Union of India and its officials (Respondents Nos. 1 and 3). 7. The petitioner has annexed the certificate of ownership of the animals in question as Annexure-7 series. 6. A counter-affidavit has been filed on behalf of the State Government and its officials, namely, Respondents Nos. 2,4 and 5 and a separate counter-affidavit has been filed on behalf of the Union of India and its officials (Respondents Nos. 1 and 3). 7. In the counter-affidavit filed on behalf of the Union of India it is stated that prior to letter dated 18-5-2001 issued by the Additional Director General, Forest (Wild Life), Ministry of Environment and Forests, a letter dated 16-6-2000 on similar lines directing the Chief Wild Life Wardens to cancel the ownership certificates granted in respect of the said five animals to the Circuses was issued by the Director, Animal Welfare, Ministry of Social Justice and Empowerment. The said order of the Central Government was challenged by the Circuses before the Bombay High Court and a Division Bench of the Bombay High Court dismissed the writ petition, vide judgment dated 12-7-2001. The copy of the said judgment has been annexed as Annexure-II. It is stated that the Bombay High Court before dismissing the said matter by its interim order dated 24-1-2001 had directed the Central Government to show that "whether the Union of India has adequate infrastructure for the preservation and well being of the Circus animals which have been rescued". Pursuant to the said direction, the Government had placed all the relevant materials in respect of the said five Rescue Centres. It is only after being satisfied about the facilities available at the said Rescue Centres that the High Court of Bombay dismissed the said petition. It is submitted that the Ministry of Environment and Forests in conjunction with Central Zoo Authority has constructed five Rescue Centres at Nahargarh, Jaipur in Rajasthan Bannerghatta, Bangalore in Karnataka, Tirupati and Visakhapatnam in Andhra Pradesh and Vandalur, Chennai in Tamil Nadu for the Welfare and upkeep of the animals in question. It is stated that the Chief Wildlife Warden is well within his rights to cancel the ownership certificate, particularly keeping in view the fact that the very reason for which the ownership certificate was granted to the Circuses has seized to exist. It is stated that the Chief Wildlife Warden is well within his rights to cancel the ownership certificate, particularly keeping in view the fact that the very reason for which the ownership certificate was granted to the Circuses has seized to exist. According to them, on cancellation of the ownership certificate, keeping in view the provisions of Sec. 39 of the Wildlife (Protection) Act, the wild animal in custody of the circuses becomes the State property and the same has to be surrendered within 48 hours. It is also contended that as the said animal becomes the property of the State, the owner will not be entitled to any compensation. It is stated that in the present case, complains have been received by the State Government that the petitioner is exhibiting animals under the circus-top in the presence of the audience in violation of the notification dated 14th October, 1998 and secondly, the animals have been kept in very small, dingy transport cages in violation of the norms specified for big cats under the performing Animals (Registration) Rules, 2000 and also the norms prescribed under the Recognition of Zoo Rules, 1992. It is alleged that there was no proper paddock area earmarked for their exercise. According to the said respondents, as the petitioner was violating the law and the judgment delivered by the apex Court, the Chief Wild Life Wardens of Uttar Pradesh, Madhya Pradesh and Jharkhand cancelled the ownership certificate of the petitioner and that the ownership certificates have since been cancelled the said animals have become the property of the Government and the custody of the same has to be taken by the concerned authority. However, according to the said respondents, the petitioners are at liberty to make such representation in terms of the judgment dated 12th July, 2001 of the High Court of Bombay. 8. In the counter-affidavit filed on behalf of the State and its officials (Respondent Nos. 2,4 and 5) it is alleged that the petitioner kept on exhibiting the banned animals in their show at Patna even after the order of the apex Court, about which a complaint was fried, on which the letter (Annexures 5, 5/A and 5/B) were issued. It is alleged that the petitioner has committed contempt of the order of the apex Court by exhibiting the banned animals. It is alleged that the petitioner has committed contempt of the order of the apex Court by exhibiting the banned animals. In response to the claim of the petitioner regarding Federations plan for creating Zoo for the animals of the Circuses, it is stated that the recognition from the Central Zoo Authority is required and that the petitioner has not produced any proof regarding permission from the said authority to establish a large Zoo. With regard to the compensation and carriage cost of the animals, it is stated that they do not relate to the State Government. 9. Rejoinder on behalf of the petitioner have also been filed. 10. On 9-7-2001, learned Counsel appearing for the petitioner fairly submitted that in view of the judgment of the apex Court in Civil Appeals No. 3609-3620 of 2001 (Annexure-2), the petitioner-Circus cannot exhibit or train the five categories of animals, namely, bears, moneys, tigers, panthers and lions, covered by the notification of the Central Government dated 14-10-1998 (Annexure-1), Thus, according to him, the only grievance of the petitioner is as against depriving them of the ownership of the animals in question without payment of the price and compensation by the respondents and that even for shifting of the animals to the designated place, they have been forced to comply with the same without payment of expenses for shifting of the animals. According to the learned Counsel for the petitioner, the exhibition of restricted animals show has been closed after receipt of the said letter, but the grievance of the petitioner is that the respondents have not advanced any amount for their food, nourishment, health care and maintenance cost of Rs. 15,000.00 per day in total. Yet, by the impugned order they have been directed to hand over the animals to the designated Rescue Centres, which is wholly unreasonable, arbitrary and mala fide acts of the respondents. 11. It is submitted by the learned Counsel for the petitioner that as per Annexure-9 issued by the Central Zoo Authority to the Senior Standing Counsel, Government of India, Patna High Court, the Ministry of Environment and Forest, Government of India agreed to reimburse the cost of transportation of the animals to the Rescue Centre. However, on the question of payment of compensation, it is stated that the final view has not been taken. However, on the question of payment of compensation, it is stated that the final view has not been taken. Thus, it is contended that the impugned order, contained in Annexure-5, is not sustainable unless transportation cost is paid and final decision regarding compensation is taken by the Government of India. Learned Counsel for the petitioner has also contended that the provisions of the Act are applicable to only such Wild Life which are included in the Schedules and the mammals, which are enumerated in Part I of Schedule I, only includes Indian Lion (Panthera leo persica) and not African Lion. It is submitted that the petitioner possesses African Lion and for which they were also granted certificate of registration (Annexure-7 series). As such, according to him, in so far as the African Lions are concerned, they are not covered by the provisions of the Act and, thus, in any case, the petitioner cannot be deprived of the ownership of the same. 12. Mr. Kam, learned Senior Standing Counsel appearing for the Union of India, on the other hand, has submitted that it may be true that African Lions are not included in Schedule I, but keeping in view of the object of the Act to provide for the protection of the Wild Animals, bears and plants and for matters connected therewith or ancillary or incidental thereto, the applicability of the Act is not precluded with respect to the African Lion, about which nobody can dispute, is a Wild Life. 13. this Court finds substance in the submissions of the learned Counsel for the respondents. India is signatory/contracting party to international treaties and conventions concerning environment protection, besides the convention on the rights of the child. Prior to Wildlife (Protection) Act, 1972, there was a legislation passed in 1912 during the British Rule in India, which was titled as Wild Birds and Animals (Protection) Act, 1912. This Act was also aimed to prevent killing of Wild Birds and Animals. To safeguard one of the grandest heritages of our country. Wildlife also forms an integral part of our cultural inheritance. The rapid decimation of our once teeming wildlife has been a matter of grave concern to the world at large and India in particular. This Act was also aimed to prevent killing of Wild Birds and Animals. To safeguard one of the grandest heritages of our country. Wildlife also forms an integral part of our cultural inheritance. The rapid decimation of our once teeming wildlife has been a matter of grave concern to the world at large and India in particular. It was thus, the Parliament felt necessity of enacting 1972 Act as 1912 Act had become outdated and the provisions made therein were not adequate to proved sufficient protection to wild bears and animals. 14. It is true that African Lion is not included in Part I containing the names of mammals in Schedule I, but keeping in view the object that the Act provides for the protection of the wild animals, bears and plants and for matters connected therewith or ancillary or incidental thereto, in my opinion, will not preclude the applicability of the provisions of the Act to the said species. this Court, thus, does not find any force in the submission of the learned Counsel for the petitioner that the African Lions are not covered by the provisions of the Act and thus, the petitioner cannot be deprived of the ownership. 15. Moreover, on the question of ownership in view of the decision of the apex Court in the case of N.R. Nairand Ors. V/s. Union of India and Ors. (Annexure-2), one thing is certain that Circus Owners are prohibited from either training or exhibiting any of the five animals referred to in Annexure-1. It is true that the apex Court refrained from passing any order as to what is to be done to the animals as their Lordships did not find it to be within the domain of the said proceeding. But, at the same time, held that the Circus owners cannot retain them. Thus, for the reasons aforementioned, the impugned orders, whereby the petitioner has been directed to hand-over the lions, tigers, panthers, bears and monkeys to the designated Rescue Centres cannot be interfered with. 16. But, at the same time, held that the Circus owners cannot retain them. Thus, for the reasons aforementioned, the impugned orders, whereby the petitioner has been directed to hand-over the lions, tigers, panthers, bears and monkeys to the designated Rescue Centres cannot be interfered with. 16. Now the question is as to whether the petitioner can be forced to comply with the direction, contained in the impugned order, to hand over the said five categories of animals to the designated Rescue Centres without deciding about the claim of the petitioner relating to compensation, expenses incurred over maintaining the animals since after stopping of their exhibition by the petitioner under the impugned order especially without paying even the cost for carrying the animals to the designated Rescue Centres. The answer, in my opinion, is in the negative. The respondent authorities are not justifiea in requiring the petitioner to take proper health care of the animals, give the animals healthy diet and maintain their enclosures properly at their cost despite prohibiting their exhibition by the petitioner, more so when the respondents claim that the animals became the State property under Sec. 39 of the Act. 17. According to the case of the respondents themselves, wild animals in the custody of the circus became the State property under Sec. 39 of the Act and the same are to be surrendered within forty-eight hours. Once the said animals became the State property by virtue of the statutory provisions, as claimed by the respondents, it is their duty to maintain and take them to the Rescue Centres and the petitioner cannot be fastened with the liability of taking proper health care of the animals, giving them healthy diet and of maintaining their enclosure properly at their cost. 18. Preservation of wild life environment is the responsibility of the State/Centre, which is signatory/contracting party to the international treaties and conventions concerning environment protection. The Parliament by its Constitution (Forty-second Amendment) Act, 1976, inserted Article 48-A in Part IV of the Constitution as Directive Principles of State Policy, which provides that the State shall endeavour to protect and improved the environment and to safeguard the forests and wild life of the country. 19. The Parliament by its Constitution (Forty-second Amendment) Act, 1976, inserted Article 48-A in Part IV of the Constitution as Directive Principles of State Policy, which provides that the State shall endeavour to protect and improved the environment and to safeguard the forests and wild life of the country. 19. Thus, in my opinion, even otherwise in all fairness, the respondents authorities should have taken care to settle the above-mentioned disputes, including for payment of the cost for carrying the animals to the Centre and pay it to the petitioner before forcing them to hand over possession of the animals to the designated Rescue Centre, vide impugned Order (Annexure-5). However, in view of the letter of the Member Secretary of the Central Zoo Authority (Annexure-9), which says that final issue on the payment of compensation has not been taken, this Court refrains from expressing any view on the said question. The petitioner can pursue the said matter before the authority concerned. 20. The writ application is, thus, partly allowed. The respondents are refrained from compelling the petitioner for complying with the direction given in the impugned Order (Annexure-5) till the appropriate decision is taken for compensation in maintaining the animals since after stopping of their exhibition by the petitioner under the impugned orders of the respondent authorities as also with respect to the expenses for carrying the animals to the Rescue Centres. However, it is made clear that the respondent authorities will be entitled to carry the animals to the Rescue Centres themselves, if they so desire, and later settle the dispute for payment of compensation to the petitioner for maintenance of the said animals since the date their exhibition has been stopped by the authorities by the impugned order. In the facts and circumstances, there shall, however, be no order as to costs.