Prayer: This writ petition has been filed under Article 226 of constitution of India to issue a Writ of Certiorari Mandamus to call for the records and quash the same of the 3rd respondent culminating in the order dated 06.03.2006 Ka.N.Va.Va.1/6874/06 rejecting the application of the petitioner for grant of ownership certificate in respect of the Wild Life Trophies inherited by the petitioner more particularly setout in the schedule to the petition filed here under and consequently direct the 3rd respondent to issue a ownership certificate in respect of the said Wild Life Trophies under the declaration of Wild Life Trophies Stocks Rules 2003.
The petitioner has filed the present Writ Petition for issuance of writ of Certiorarified Mandamus to quash the order passed by the 3rd respondent dated 06.03.2006, rejecting the petitioner's application for grant of ownership certificate in respect of the Wild Life Trophies inherited by the petitioner. According to the petitioner, his father was a wild life enthusiast, who had during his life time, had collected several Wildlife Memorabilia and after the demise of his father, the petitioner is stated to have inherited such Memorabilia. According to the petitioner, these collections have a sentimental value and therefore, it is incalculable in terms of money. Section 40(A) was inserted in the Wild Life Protection Act, 1972, by the Wild Life (Protection) Amendment Act 2002, Act 16 of 2003, with effect from 01.04.2003 This provision was inserted with a view to grant immunity in certain cases. For better appreciation the provision is extracted as hereunder:-
“40A. Immunity in certain cases:-
(1) Notwithstanding anything contained in sub-sections (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, trophy or uncured trophy derived from animals specified in Schedule I or Part II of Schedule II 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.
(2) Any action taken or purported to be taken for violation of Section 40 of this Act 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.
(3) Any captive animal, animal article, trophy or uncured trophy declared under sub-section (1), shall be dealt with in such manner and subject to such conditions as may be prescribed.”
2. In exercise of powers conferred under Sub-section (1) and (3) of Section 40A read with Section 63 of the Act, the Declaration of Wild Life Trophies Stocks Rule 2003 came to be published with effect from 18.04.2003 Rule 4 prescribed the procedure for filing an application to the Chief Wild Life Warden or Officers authorised by the State Government and it shall be presented in the form as per the rules either in person or through agent or by duly authorised legal practitioner or by registered post. Rule 5 prescribes the procedure for presentation and scrutiny of such application. The place of filing an application is dealt with in Rule 6, and Rule 7 deals with the hearing to be afforded by the Chief Wild Life Warden or the authorized Officer for hearing of application, if required. In terms of Rule 8, the Chief Wild Life Warden or the officer authorized by the State Government shall verify the facts mentioned in the application and make such inquiry as required. Sub Rule 2 of Rule 8, states that the competent authority as far as possible decide the application within six weeks from the date of receipt of the application and communicate the same to the applicant in writing. Rule 9 empowers the authorized officer to hear an application at his discretion. In terms of Rule 10(1), the authorized officer is directed to conduct a detailed enquiry. In terms of the Section 41 of the Act and a copy of such enquiry report is required to be furnished to the applicant thereafter, the certificate of ownership to be issued under Rule 11.
3. The case of the petitioner is that he was not aware that such application has to be presented in the prescribed form within 180 days from the date of notification. On coming to the know of the same, the petitioner sent a letter to the third respondent on 24.03.2005, including the application under Section 40A of the Act for issuance of certificate of ownership for the trophies, and the petitioner also requested to condone the delay in submitting the application as he was abroad. In the said letter, a request was made to the third respondent to verify the trophies, which were in possession of the petitioner and photographs of such trophies were also enclosed.
4. It appears that this application dated 24.03.2005 was handed over by the petitioner to the 3rd respondent in person on 28.03.2005 This has been followed by the reminders dated 04.10.2005 and 29.12.2005 One more application form was also submitted and the petitioner has specifically stated that the trophies are under his possession inherited as ancestral properties. The 2nd respondent rejected the application on the ground that the petitioner has not presented the application within 180 days from the date of publication of the Rules. It is seen that the procedure contemplated under Rules 7 to 10 were not followed, since the application came to be rejected at the threshold by an order dated 06.03.2006 This order dated 06.03.2006, passed by the authority is impugned in the present Writ Petition.
5. The correctness of the impugned order is assailed on several grounds, primarily on the ground that summary rejection of the application by the authority without considering the request for condonation of delay is in violation of principles of natural justice. It is further contended that the petitioner cannot be penalized for the delay in filing the application, which was not intentional. It is further contended that no opportunity of personal hearing was granted by the authority before passing the impugned order and when the rules prescribed a detailed enquiry by the authority, the order summarily rejecting the application is erroneous.
6. Heard the learned counsel appearing for the petitioner as well as the learned Special Government Pleader appearing for the respondents.
7. It is to be noted that the Wild Life (Protection) Amendment Act, came to be enacted to provide protection of wild animals, birds and plants and for matters connected therewith or incidental thereto with a view to ensure the ecological and environmental security of the country. Section 40A came to be inserted to grant immunity in certain cases and for the purpose of granting such immunity, person possessing an animal article, trophy or uncured trophy is required to make a declaration within a time prescribed. As pointed out by the learned counsel appearing for the petitioner, though the rules prescribes an outer time limit of 180 days for filing such application, the provisions of Limitation Act has not been specifically excluded. If that be the case, it was well open to the competent authority to entertain an application beyond the period of 180 days and examine whether the applicant has shown sufficient cause for not having presented the application within the time prescribed and exercise discretion in the matter to accept the application to be considered on merits and in accordance with rules. This approach alone could be considered as a reasonable approach bearing in mind the object behind, which Section 40A was inserted by Amendment Act 16 of 2003. Any other interpretation given is likely to frustrate the object of the amendment and could ultimately result in arbitrary exercise of power vested with the authority. Further, it is to be noted that under the rules detailed procedure has been contemplated for the manner in which the application has to be dealt with under the Declaration of Wild Life Trophies Stocks Rules 2003. In terms of Rule 8(2), it has been stated that the Chief Wild Life Warden as far as possible decide the application within six months of the dates of its presentation and communicate the same to the applicant. Therefore, the competent authority has also been granted sufficient time to decide such application. Rule 10(1) of the Stock Rules, contemplates conduct of a detailed enquiry and copy of such enquiry report is also required to be furnished to the applicant. Therefore, it would be unreasonable for the authority to summarily reject the petitioner's application as being time barred, without examining the reasons assigned by the petitioner for not submitting the application within the time prescribed.
8. According to the respondents, the application ought to have been filed on or before 15.10.2003, but the respondent has stated the petitioner has filed his application only on 09.12.2005 However, in the typed set of papers, the petitioner has enclosed copy of the application dated 24.03.2005, stated to have been handed over to the third respondent on 28.03.2005, this has been followed by the reminder dated 04.12.2005 and 29.12.2005 In fact in the first application dated 24.03.2005, the petitioner has made a request for condonation of delay stating that he was abroad during the period. In the letter dated 04.10.2005 addressed to the third respondent, the petitioner has stated that his earlier application is not traceable and therefore, he submitted another application and has requested the authorities to condone the delay and issue ownership certificate. Therefore, if the date of the application is taken as 24.03.2005, then its cannot be stated that the application is grossly belated. Even under the rules such application is required to be considered as far as possible within a period of six months, which indicates that it is only directory and not mandatory for the authority to dispose of the application within six months. If that be the case no prejudice would be caused to the department, if the application is entertained and decide on merits. That apart, there is no evidence on record to show that the reason assigned by the petitioner for not being able to present the application within the time prescribed as either false or incorrect. It is to be noted that the petitioner has also given a declaration that the Wild Life trophies in his profession have been inherited by him and he has also made a further declaration that he will not transfer the trophies to any one by any mode except by inheritance.
9. The Hon'ble Supreme Court in Kailash v. Nanhku and another [2005 4 SCC page 480], while considering the scope of Order 8 Rule 1 CPC. as being a procedural law held as follows:-
“The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. The provision spells out a disability on the defendant: a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Though the language of the proviso to Rule 1 Order 8 CPC is couched in the negative form, it does not specify any penal consequences flowing from the non-compliance; however, the consequences of non-compliance may be read in by necessary implication. The provision being in the domain of the procedural law and considering the object and purpose behind enacting Rule 1 of Order 8 in the present form and the context in which the provision is placed, it has to be held to be directory and not mandatory.”
The ratio of the above decision rendered by the Hon'ble Supreme Court could very well be applied to the facts of the present case.
10. Further, the Hon'ble Supreme Court while considering the time limit prescribed under section 13(2)(i) of the Consumer Protection Act, 1986 in the case of Top Line Shoes Ltd. v. Corporation Bank [2002 6 SCC page 33], held as follows:-
8… The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of “desirability” in strong terms. But it falls short of creating any kind of substantive right in favour of the complainant by reason of which the respondent may be debarred from placing his version in defence in any circumstances whatsoever. It is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time-frame to file reply, as a guideline, and then to exercise its discretion as best as it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principles of natural justice as well.
11. Hence, I am of the view that the respondents were not justified in rejecting the application filed by the petitioner on the ground that it was not submitted within 180 days from the date of notification of the Rules, considering the facts and circumstances of this case, and by applying the principles of section 5 of the limitation Act, such time limit could be condoned and it has to be held that the application should be entertained and decided on merits.
12. Thus by taking into consideration, the facts and circumstances of the case, the delay in submitting the application for issuance of ownership certificate is liable to be condoned not only on the ground that the delay has been explained, but also bearing in mind, the purpose and intent of Section 40A, introduced by Amending Act 16/2003, and the Declaration of Wild Life Trophies Stocks Rules 2003.
13. Accordingly, the writ petition is allowed, the delay in filing the application for ownership certificate made by the petitioner is condoned and the matter is remitted back to the authorised officer to examine the petitioner's application for grant of ownership certificate under Section 40A of the Wild Life Protection Act 1972 as amended by Act 16 of 2003 and consider the same on its merits and in accordance with law. Consequently, connected miscellaneous petition is closed. No costs.
T.S SIVAGNANAM, J.
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