PIL ON ELEPHANT POLO IN THE HIGH COURT AT JAIPUR.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

 

S. B. CIVIL WRIT (PIL) PETITION NO. 8987 /2006

 

Naresh Kumar Kadyan son of Shri Om Prakash ji Kadyan aged about 46 years

resident Haryana C/o 153-C, Tiger House, Jadon Nagar-A, Jaipur-18

 

…Petitioner

 

Versus

 

1. The Chief Secretary, Government of Rajasthan, Central Secretariat,

Jaipur.

 

2. The Principal Chief Conservator of Forest, Rajasthan, Vaniki Path, Van

Bhawan, Jaipur.

 

3. Chief Wild Life Warden, And Chief Conservator of Forest, Vaniki Path,

Van Bhawan, Jaipur.

 

4. The Director General of Police, Rajasthan, Jaipur.

 

…Respondents

 

S. B. CIVIL WRIT PETITION UNDER ARTICLE

 

226 OF THE CONSTITUTION OF INDIA.

 

AND

 

IN THE MATTER OF ARTICLE 14, 48-A,

 

51A (g) OF CONSTITUTION OF INDIA.

 

AND

 

IN THE MATTER OF WILD LIFE

 

(PROTECTION) ACT, 1972

 

AND

 

IN THE MATTER OF THE PREVENTION OF

 

CRUELTY TO ANIMALS ACT, 1960

 

AND

 

IN THE MATTER OF PERFORMING ANIMALS

 

(REGISTRATION) RULES, 2001

 

AND

 

IN THE MATTER OF PERFORMING ANIMALS

 

RULES 1973

 

AND

 

IN THE MATTER OF PREVENTION OF CRUELTY

 

TO ANIMALS (TRANSPORT OF ANIMALS ON

 

FOOT) RULES, 2001

 

To

 

The Hon’ble Mr. Sachchidanand Jha,

 

Chief Justice and his other companion Judges

 

of the Rajasthan High Court Bench at Jaipur.

 

MAY IT PLEASE YOUR LORDSHIPS,

 

The humble petitioner most respectfully begs to submit as under:-

 

1. That the petitioner is Chairman of People for

Animal, Haryana a registered society for welfare of the animals, and is a

man involved in many programs, which are relating to Forest Conservation,

and betterment of Animals Life and protection of the Wild Life and

developing a cruelty free environment for the animals in the country.

 

2. That to Protect and improve the environment and

safeguard of forests and wild life, the Parliament of India inserted the

Article 48-A in the Constitution of India by the Constitution

(42ndAmendment) Act, 1976 in Part IV of the Constitution of India,

which reads as

under:-

 

“The State shall endeavor to protect and improve the environment and to

safeguard the forests and wild life of the country.”

 

3. That the Government of India, in the year 1972

promulgated ‘THE WILD LIFE (PROTECTION) ACT, 1972 (Act No. 53 of 1972) to

provide the protection to the wild animals, birds and plants and for matters

connected therewith or ancillary or incidental thereto with a view to

ensuring the ecological and environmental security of the county. The object

of the Act was the rapid decline of India’s wild animals and birds one the

richest and most varied in the world, has been a cause of grave concern and

to protect the ecological and environmental security constitute a Wild Life

Advisory Board for each State, regulate hunting of wild animals and birds.;

lay down the procedure for declaring areas as Sanctuaries, National Parks

etc.

 

4. The Government of India in the year 1960 has also

promulgated the “Prevention of Cruelty to Animals Act, 1960” with object to

prevent the infliction of unnecessary pain or suffering on animals and for

that purpose to amend the law relating to the Prevention of Cruelty to

animals and to make a cruelty free environment for animals in the country.

As per section 38 of the Act of 1960 the Central Government has powers to

make the Rules.

 

5. That as per section 39 of the Wild Life Protection

Act provides that Wild Animals etc. to be government property and

sub-section (3)(b) of the section 39 provides that No person shall without

the previous permission in writing of the Chief Wild Life Warden or the

authorized officer transfer to any person, whether by way of gift, sale or

otherwise.

 

6. Section 40(2) of the Act, 1972 provides that No

person shall, after the commencement of this Act, acquire receive, keep in

his control, custody or possession, sell, offer for sale, or otherwise

transfer or transport any animal specified in Schedule-1 or Part II of

Schedule-II, any uncured trophy or meat derived from such animal, or the

salted or dried skin of such animal or the musk of a deer or the horn of a

rhinoceros, except with the previous permission in writing of the Chief Wild

Life Warden or the authorized officer.

 

7. That Section 41(2) of the Act of 1972 provides no

person shall obliterate or counterfeit any identification mark referred to

in this chapter.

 

8. That Section 42 of the Act of 1972 provides that

Certificate of ownership.- The Chief Wild Life Warden may, for the purposes

of sec. 40 issue a certificate of ownership in such form, as may be

prescribed to any person who, in his opinion, is in lawful possession of any

wild animal or any animal article, trophy of any wild animal or any animal

article, trophy, or uncured trophy, and may, where possible, mark, in the

prescribed manner, such animal article, trophy or uncured trophy for the

purposes or identification.

 

9. That section 43 (1) of the Act of 1972 provides

that no person having in his possession captive animal, animal article,

trophy or uncured trophy in respect of which he has a certificate of

ownership shall transfer by way of sale or offer for sale or by any other

mode of consideration of commercial nature, such animal or article or trophy

or uncured trophy.

 

10. That the section 44(4)(b) (5)(6) provides that (b) No

license referred to in sub-section (1) shall be granted unless the Chief

Wild Life Warden or the unauthorized officer having regard to the

antecedents and previous experience of the applicant, the implication which

the grant of such licence would have on the status of Wild Life and to such

other matters as may be prescribed in his behalf and after making such

inquiry in respect of those matters as he may think fit, is satisfied that

the license should be granted.

 

(5) Every license granted under this section shall specify the premises in

which and the conditions, if any, subject to which the licensee shall carry

on his business.

 

(6) Every licence granted under this section shall –

 

(a) be valid for one year from the date of its grant;

 

(b) not be transferable; and

 

© be renewable for a period not exceeding one year at a time.

 

11. That section 48(b) of the Act of 1972 provides that

(i) capture any wild animal, or (ii) acquire, receive, keep in his control,

custody, or possession or sell, offer for sale, or transport, any captive

animal specified in Schedule-1 or Part-II of Schedule II or any animal

article, trophy or uncured trophy, or meat derived therefrom, or serve such

meat, or put under a process or taxidermy or make animal article containing

part or whole of such animal except in accordance with such rules as may be

made under this act.

 

12. That section 48A of the Act of 1972 provides that

Restriction on transportation of Wild Life. No person shall accept any wild

life animal (other than vermin) or any animal article, or any specified

plant or part or derivative thereof, for transportation except after

exercising due care to ascertain that permission from the Chief Wild Life

Warden or any other officer authorized by the State Government in this

behalf has been obtained for such transportation.

 

13. That section 49A (a) of the Act of 1972 provides that

‘Scheduled animal” means an animal specified for the time being in Schedule

I or Part II of Schedule II.

 

14. That section 49C (a)(ii), (b) © and 7 of the Act of

1972 provides that (a) his stock, if any, as at the end of the specified

date of (ii) Schedule animals articles; (b) the place or places at which the

stocks mentioned in the declaration are kept; and © the description of

such items, if any, of the stocks mentioined in the declaration which he

desires, to retain with himself for his bonafide personal use. Provided that

no such item shall be kept in any commercial premises. (7) No person other

than a person who has been issued a certificate of ownership under

sub-section (3) shall, on and after the specified date, keep under his

control, sell or offer for sale or transfer to (any person any scheduled

animal or scheduled animal article or ivory imported into India or any

article made therefrom.

 

15. That section 51(1A) of the Act of 1972 provides that

any person who contravenes any provisions of Chapter V-A shall be punishable

with imprisonment for a term which shall not be less than three years but

which may extend to seven years and also with fine which shall not be less

than ten thousand rupees.

 

16. That the form No. 15 and 20 of Wild Life

(Protection)(Rajasthan) Rules 1977 is certificate of ownership and

application form for renewal of licence.

 

17. That section 5 of Prevention of Cruelty to Animals

Act, 1960 provides that duties of person having charge of animals- It shall

be the duty of every persons having the care or charge of any animal to take

all reasonable measures to ensure the well-being of such animal and to

prevent the infliction upon such animal of unnecessary paid or suffering.

 

18. That section 11(1)(a) and (b) (h) (m) of Prevention of

Cruelty to Animals Act, 1960 provides that treating animals cruelty (1) if

any person (a) beats, kicks, over-rides, over-loads, tortures or otherwise

treats any animal so as to subject it to unnecessary pain or suffering or

causes or, being the owner permits, any animals to be so treated; or (b)

(employs in any work or labour or for any purposes any animal which, by

reason of its age or any disease) infirmity, wound, sore or other cause, is

unfit to be so employed or, being the owner, permits any such unfit animal

to be so employed; or (h) being the owner of (any animal), fails to provide

such animal with sufficient food, drink or shelter. (m) Solely with a view

to providing entertainment.

 

19. That section 21 of Prevention of Cruelty to Animals

Act, 1960 provides that “Exhibit” and “train” defined. In this Chapter,

“exhibit” means exhibit at any entertainment, to which the public are

admitted through sale or tickets and “train” means train for the purpose of

any such exhibition, and the expressions “exhibitor; and “trainer” have

respectively the corresponding meanings.

 

20. That section 26 of the Act of 1960 provides regarding

offences and section 27 provides exemption. Section 29 provides power of

court to deprive person convicted or ownership of animal.

 

21. That the elephant is schedule Ist animal listed on

No.-12 in Wild Life Protection Act, 1972 and it requires protection in its

natural habitants, which is dense and deep jungle/forests. Therefore the

provisions mentioned herein above are fully applicable in the present matter

which relates to protection of Elephants.

 

22. That as per information more than 125 male and female

elephants is being used by the persons who are either actual owners or

retainers of the elephants. They are using these elephants to ride the

tourists and using it in marriages and other functions, film shootings and

polo matches etc.

 

23. The body structure of the elephant is not suitable for

polo play because it need fast running and being heavy weight it cannot run

fast and due to poor eye sight, an elephant is totally unfit for this game,

which is cruelty with this animal.

 

24. That it is pertinent to mention here that as per

opinion of the experts, the elephant can survive in 30 decree centigrade

temperature. If it is kept in more than 30 decrees centigrade, it will

suffer from number of diseases like foot root and due to this disease

slowly-slowly it becomes blind because the design of the foot of the

elephant is suitable for walking on vegetation which is soft with having

normal temperature but herein Jaipur they are being used to walk on hard

surface like Road and rock area in Amer due to walking on hard surface they

becomes blind and number of blind elephants has been recorded in medical

checkup, which was organized by forest and tourism department jointly and

still these elephants are being used frequently for the above purposes which

is also cruelty against this animal.

 

25. That declaration and a certificate of ownership should

be as per provisions of Wild Life Protection Act, 1972 and registered as per

provisions of Performing Animals (Registration) Rules 2001 the animals which

are being used for the purpose of entertainment, including film and equine

event which the public are admitted should be registered under the Rules of

2001. Elephants which are being used for carrying tourist purposes, polo

play and using in films should be registered under the provisions of Rules

2001.

 

26. That it is worth while to mention here that as per

information number of elephants are not declared and not registered under

the provisions of Wild Life Protection Act, 1972 and they are registered on

behalf of photocopy and fake papers, which is not being checked by the

forest department and issues certificate of ownership on behalf of simple

Photostat papers. Moreover, the numbers of elephants are increasing day by

day in the city illegally. These elephants are being brought

illegally.Purchasing and selling of these animals is banned. Without

ownership certificate and with fake papers number of elephants are being

used in city for carrying tourists and playing polo and marriage functions

also.

 

27. That it is pertinent to mention here that the forest

department installs a micro wave chip on every elephant. The owner/retainer

of the elephant used to withdraw the chip from one elephant and install on

other elephant which is totally illegal and there is violation of the

relevant Rules and provision of the Act.

 

28. That the elephants which are being used for the

purpose of playing polo, carrying tourists should be fit and required

fitness certificate of competent authority. Most of the elephants which are

being used for the above purposes have no fitness certificate and they are

not fit for the purpose for which these are being used.

 

29. That the persons are transporting the elephants on

foot and bring this animal from nearby areas and no permission from any

authority for transport of elephant is being taken under the provisions of

The Transport of Animals Rules, 1978 and the Prevention to Cruelty to

Animals (Transport of Animals Foot) Rules 2001 and as per provision of Wild

Life Protection Act, 1972.

 

30. That the Mahawats of the elephants are using “Ankush”

(a sharp pointed iron rod weapon) to drive and control the elephant

particularly in polo play and climbing on fort in adverse manner because

they wanted to drive the elephant in adverse and abnormal conditions, which

are unsuitable for elephant in normal life and normal course of walking and

the same is cruelty to this animal.

 

31. That in our country, the elephant is being worshiped

as Lord Ganesha and the elephants owners of the country by inflicting

cruelty to animal by using it in carrying tourists, polo play, films etc.

and are playing with the sentiments of the people of large.

 

32. That above facts and circumstances clearly shows that

the owners/trainer and users of the elephants are violating the provisions

of Act of 1972, Act of 1960, Act of 2001 and they are liable to be punished

under the provisions of law.

 

33. That it is pertinent to mention here that number of

incidents has took place with the elephant in the city of Jaipur. In June

2002 male elephant hit a female elephant therefore, the female elephant

fallen in a dug and Mahawat of the elephant including 4 tourists sustained

injuries. In June 2003 an elephant killed Prince Saini who was tourist

guide. In April 2005, an elephant rushed to Mahavat for killing him, the

Mahavat rescued himself by entering in the premises of RTDC office, the

elephant was so aggressive, he broke the wall of RTDC office. On 15.9.2005,

a female elephant named Laxmi killed Vinod Lamba who was a travel agent and

wounded some foreign tourists. On 10.11.2006, a male elephant named Ramu

could not be controlled by his owner and ultimately it destroyed the number

of public property and controlled by Tranquilized gun by forest person. The

behave of these elephants show that if the elephants are kept in using in

adverse conditions, then these type of incidents will took place. Copy of

the news items published in the newspaper is enclosed herewith and is marked

as *Annexure-1*.

 

34. That there are provisions in the aforesaid Acts and

Rules for penalizing the persons who violating the provisions and are doing

cruelty with this poor animal but no one has been penalized so far.

 

35. That the petitioner sent a notice for demand of

justice dated 13.11.2006 to the respondents but inspite of service of the

same nothing has happened. Copy of notice for demand of justice dated

13.11.2006 is enclosed herewith and is marked as *Annexure-2*.

 

36. That the other submissions will be urged at the time

of arguments.

 

37. That the petitioner has left with no alternative and

efficacious remedy except to approach this Hon’ble Court under its extra

ordinary jurisdiction under Article 226 of the Constitution of India.

 

38. That the petitioner has not filed any such writ

petition prior to this either before the Hon’ble Court or before the Hon’ble

Supreme Court of India.

 

39. Relief:

 

It is, therefore, most respectfully prayed that the writ petition may kindly

be allowed and:-

 

(a) Issue an appropriate Writ, Order or direction, the respondents

to bring the entire record relating to ownership of elephants and ownership

certificate of other animals and trophies, Shawl derived from wild animals,

which have been registered under the provisions of Act of 1972 the related

permissions have been issued for the purpose of performing and display of

elephants in polo and others places.

 

(b) Issue an appropriate Writ, Order or direction, the respondents

may be directed to make strict compliance of the Wild Life (Protection) Act,

1972, Prevention of Cruelty to Animals Act, 1960, The Performing of Animals

Rules 1973, The Performing Animals (Registration) Rules, 2001, The

Prevention of Cruelty to Animal (Transport of Animals on foot) Rules, 2001

and penalize the persons who are violating these Act and Rules.

 

© Issue an appropriate Writ, order or direction, giving any other

relief in the interest of justice, which this Hon’ble Court considers fit

and proper in the facts and circumstances of the case.

 

(d) Cost of the Writ Petition be awarded.

 

40. Interim Relief:

 

That the petitioner has filed by above named writ petition wherein

petitioner has every hope of success. In case the persons who are using the

elephant unauthorized and illegally in play of polo, shooting and riding on

Amer Fort is not stayed the poor elephant will suffer cruelty. It is

therefore most respectfully prayed that your lordships will be pleased to

issue an appropriate order by staying the use of the elephant in play of

polo, shooting and riding on Amer Fort during the pendency of writ petition

before this Hon’ble Court.

 

Any other order which this Hon’ble Court thinks fit and proper in the facts

and circumstances of the case, may kindly be granted in favor of the

petitioner.

 

HUMBLE PETITIONER

 

THROUGH COUNSEL

 

 

 

(DR. MAHENDRA SINGH KACHHAWA)

 

ADVOCATE

 

Notes:

 

1. No such writ petition has previously been filed.

2. PF Notices and extra copies will be filed ordered by the Hon'ble

Court.

3. Typed in my office by my private steno.

4. Since pie papers were not available hence typed on stout papers.

5. Vires are not being challenged under this Writ Petition.

 

COUNSEL FOR THE PETITIONER

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

 

S. B. CIVIL WRIT (PIL) PETITION NO. /2006

 

Naresh Kumar Vs. State of Rajasthan and Ors.

 

AFFIDAVIT IN SUPPORT OF WRIT PETITION

 

I, Naresh Kumar Kadyan son of Shri Om Prakash ji Kadyan aged about 46 years

resident Haryana C/o 153-C, Tiger House, Jadon Nagar-A, Jaipur-18, do hereby

take oath and state as under:-

 

1. That I am petitioner in this writ petition, so I am well conversant

with the facts of the case.

 

2. That the Writ Petition has been drafted by my counsel under my

instructions. I have gone through the contents of the writ petition and

understood the same.

 

3. That the statement of facts mentioned in para No. 1 to 40 of the Writ

Petition are true and correct to my personal knowledge and submissions made

therein are based on legal advice, which I verily believe to be true.

 

 

 

 

 

 

 

 

 

 

 

 

 

VERIFICATION

 

I the above named deponent do hereby verify on oath that contents of

para No. 1 to 3 of my above affidavit are true and correct to my personal

knowledge. Nothing material has been concealed therein and no part thereof

is false.

 

So help me God.

 

 

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

 

 

 

S. B. CIVIL WRIT (PIL) PETITION NO. /2006

 

Naresh Kumar Vs. State of Rajasthan and Ors.

 

AFFIDAVIT IN SUPPORT OF DOCUMENTS

 

I, Naresh Kumar Kadyan son of Shri Om Prakash ji Kadyan aged about 46 years

resident Haryana C/o 153-C, Tiger House, Jadon Nagar-A, Jaipur-18, do hereby

take oath and state as under:-

 

1. That I am petitioner in this writ petition, so I am well conversant

with the facts of the case.

 

2. That the annexed documents Annexure-1 to Annexure-2 are true, correct

and exact copies of their respective originals.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

VERIFICATION

 

I the above named deponent do hereby verify on oath that contents of

para No. 1 and 2 of my above affidavit are true and correct to my personal

knowledge. Nothing material has been concealed therein and no part thereof

is false.

 

So help me God.

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

 

S. B. CIVIL WRIT (PIL) PETITION NO. /2006

 

Naresh Kumar Vs. State of Rajasthan and Ors.

 

INDEX

 

Sr. No. Particulars Page No.

 

 

 

1. Writ Petition 1 to 17

2. Affidavit in support of writ petition 18

 

DOCUMENTS

 

1. Annexure-1 News item published in Patrika 19

2. Annexure-2 Notice for demand of justice 20 to 26

 

AFFIDAVIT IN SUPPORT OF DOCUMENTS 27

 

 

 

COUNSEL FOR THE PETITIONER

 

 

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

 

S. B. CIVIL WRIT (PIL) PETITION NO. /2006

 

Naresh Kumar Vs. State of Rajasthan and Ors.

 

Synopsis

 

· That the petitioner is Chairman of People for Animal, Haryana a

registered society for welfare of the animals and he is chairman of People

for Animals, and is a man involved in many programs, which are relating to

Forest Conservation, and betterment of Animals Life and protection of the

Wild Life and developing a cruelty free environment for the animals in the

country.

 

· That the elephant is schedule Ist animal listed in Wild Life

Protection Act, 1972 and it requires protection in its natural habitants,

which is dense and deep jungle/forests. Therefore the provisions of Wild

Life Protection Act, and Prevention of Cruelty to Animals, Act, 1960 and

other Act and Rules are fully applicable in the present matter which relates

to protection of Elephants and cruelty to this poor animal.

 

· That the persons who are owing and registered owners of elephants

are violating the provisions of the Act and Rules and but not one has been

penalized so far.

 

· That the petitioner sent a notice for demand of justice dated

13.11.2006 to the respondents but inspite of service of the same nothing has

happened.

 

· Hence this writ petition.

 

 

 

COUNSEL FOR THE PETITIONER