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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S. B. CIVIL WRIT (PIL) PETITION NO. /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

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(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 involved relating of in to the animals, and is a man are and

many

programs,

which

Forest

Conservation,

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 48A in the Constitution (42nd of India Act, by 1976 the in

Constitution

Amendment)

Part IV of the Constitution of India, which reads as under:-

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“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 and protection to the wild animals, birds 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 for

constitute a Wild Life Advisory Board

each State, regulate hunting of wild animals and birds.; lay down as the procedure for

declaring Parks etc. 4.

areas

Sanctuaries,

National

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

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Central Government has powers to make Rules. 5. That as per section 39 of that the Wild

the

Life

Protection etc. to

Act be

provides

Wild

Animals sub-

government

property

and

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 II animal specified in Schedule-1 or Part 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 no 41(2) person of the Act of 1972 or

provides

shall

obliterate

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

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Wild Life Warden may, for the purposes of sec. 40 issue a certificate of ownership in such person form, who, as in may his be prescribed is in to any

opinion,

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, such mark, animal in the

prescribed

manner,

article,

trophy or uncured trophy for the purposes or identification. 9. That section that 43 (1) of the Act of in 1972 his

provides possession

no

person animal,

having animal

captive

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 that the (b) section No (1) 44(4)(b) (5)(6) to provides in subthe

license shall be

referred granted

section

unless

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

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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 (c) 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, custody, receive, or keep in or his sell,

control, offer

possession

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 part or or make whole animal of such article animal

containing

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

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animal

(other

than

vermin)

or

any

animal

article, or any specified plant or part or derivative except ascertain Wild Life thereof, for transportation due from care the to Chief officer

after that

exercising permission or any

Warden

other

authorized by the State Government in this behalf has been obtained for such

transportation. 13. That section that 49A (a) of the Act of 1972 an in

provides animal

‘Scheduled for

animal” time

means being

specified

the

Schedule I or Part II of Schedule II. 14. That section 49C (a)(ii), (b) (c) 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 (c) 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 under issued a certificate (3) shall, of on

ownership

sub-section

and after the specified date, keep under his control, sell or offer for sale or transfer to (any person any scheduled animal or

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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 punishable of with Chapter V-A shall for a be term

imprisonment

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) certificate of ownership Rules and 1977 is

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

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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 sore age or any disease) infirmity, wound, or other cause, is unfit to be so any

employed or, being the owner, permits

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 and Act, 1960 provides In that this “Exhibit” Chapter, at public any are

“train”

defined. means to

“exhibit”

exhibit which the

entertainment,

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. court to Section deprive 29 provides power of or

person

convicted

ownership of animal. 21. That the on elephant No.-12 is in schedule Wild Life Ist animal

listed

Protection

Act, 1972 and it requires protection in its natural habitants, which is dense and deep

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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 of

centigrade, it will suffer from number diseases disease because elephant like foot root and due to

this blind

slowly-slowly the is design of

it the for

becomes foot of

the on

suitable

walking

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

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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 should and be as a per certificate provisions 1972 of of and

ownership Wild

Life

Protection

Act,

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 films purposes, should be polo play and using in the

registered

under

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 and registered fake papers, on behalf is of not

photocopy

which

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

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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

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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 on

particularly in polo play and climbing

fort in adverse manner because they wanted to drive the elephant in adverse are and

abnormal for

conditions, in

which

unsuitable and normal

elephant

normal

life

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

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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 conditions, will took are kept in using type of in of adverse incidents news is items

then place. in the

these Copy

the

published

newspaper

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 the

respondents but inspite of service of

same nothing has happened. Copy of notice for demand of justice dated 13.11.2006 is

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enclosed herewith and is marked as Annexure2. 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 to bring the of entire record and and

relating ownership trophies,

ownership of

elephants animals wild

certificate Shawl

other from

derived

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,

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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. (c) 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) 40. Cost of the Writ Petition be awarded. 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 appropriate will order be by pleased staying to the issue use of an the

elephant in play of polo, shooting and riding on Amer Fort during the pendency of writ petition before this Hon’ble Court. Any thinks other fit order and which this in Hon’ble facts Court and

proper

the

circumstances of the case, may kindly be granted in favor of the petitioner. HUMBLE PETITIONER

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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

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S. B. CIVIL WRIT (PIL) PETITION NO. Naresh Kumar Vs. /2006

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 through under the my instructions. of the writ I have gone and

contents

petition

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.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S. B. CIVIL WRIT (PIL) PETITION Naresh Kumar Vs.

NO.

/2006

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.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S. B. CIVIL WRIT (PIL) PETITION NO. Naresh Kumar Vs. /2006

State of Rajasthan and Ors. INDEX

Sr. No.

Particulars

Page No.

1. Writ Petition 2. Affidavit in support of writ petition DOCUMENTS

1 to 17 18

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

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S. B. CIVIL WRIT (PIL) PETITION NO. Naresh Kumar • That the Vs. Synopsis 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 Wild • are relating to Forest Conservation, Life and developing a cruelty and free betterment of Animals Life and protection of the 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 dense and provisions in of its Wild natural Life habitants, Protection which Act, is the and deep jungle/forests. Therefore /2006 State of Rajasthan and Ors.

Prevention of Cruelty to Animals, Act, 1960 and other Act and Rules are fully applicable in the present • That the matter which who relates are to protection and of Elephants and cruelty to this poor animal. persons owing 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 happened. • Hence this writ petition. COUNSEL FOR THE PETITIONER of service of the same nothing has

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