Wild Life Protection Act, 1972
Reducing the area of Sanctuary through notifications of the State legislature
(2000(1) SCALE 606)
1. Consumer Education and Research Society V. Union of India (2000(1) SCALE 606)
(G.T. Nanavati and S.N. Phukan, JJ.,)
Wild Life Protection Act, 1972
Reducing the area of Sanctuary through notifications of the� State legislature
The petitioner, Consumer Education and Research Society filed a special leave petition against the order of the High Court of Gujarat. The petitioner herein challenged the High Court order which dismissed the its contention which challenged the State Governmental notification reducing the area of �Narayan Sarovar Chenkaru Sanctuary. In April 1981, the Gujarat Government declared 765 sq. kms of thorn forest in the Kutch District as the Narayan Sarvoar Sanctuary. The Sanctuary covers prime habitats for the Chinkara and is the only protected area where the great Indian Bustard, the Houbara Bustard and the lesser Florican occur together. A variety of migratory cranes pass through the area. In the 1990s, Sanghi cement set up its plant on the southern fringes of the Snctuary. Among the location advantages of the site was the proximity to rich limestone, lignite and bentonite deposits within the protected areas.
IN 1993, the Gujarat Government issued two notification. The first claimed that the area of the sanctuary was �substantially in excess of the requirements of the sanctuary� and proceeded to cancel� the April 1981 declaration. Simultaneously, the second notification reconstituted a new Chinkara Wild Life Sanctuary of just 95 sq. kms. The new sanctuary comprised of islands of non-contiguous areas separated by broad bands of lands where mining activity could proceed.
The High Court rejected the defence and held that 1993 notification were ultra vires. Sec. 26 A (3) applied to the case and in the absence of a resolution of the State legislature, both the notifications were quashed.
The petitioner contended that the High Court did not apply its mind to all the relevant aspects. Further they also contended that there were large number of trees on the land which was given on lease for the purpose of setting up a cement plant . The same was not brought to the notice of legislature.
However in this case the� Apex Court held �it will not be proper to invalidate the resolution of the state legislature on such a ground when we find that it took the decision after duly deliberating upon the materials which was available with it and did not think it necessary to call for further information. The power to take a decision of the notification area is not given to the State Government but to the State Legislature. It will not be proper to question the decision of the Sate Legislature in a matter of this type unless there are substantial and compelling reasons to do so. Even when it is found by the court that the decision was taken by the State Legislature hastily and without considering all the relevant aspects it will be prudent to invalidate its decision unless there is material to show that it will have irreversible adverse affect on the wildlife and environment�.
The court also observed that the State Government and the Legislature attempted to balance environment and development and therefore there was no need to apply principle of prohibition, but had to� applied the principle of protection or principle of polluter pays to the major mining operations which are carried within the notified area.
The court declined to quash the state government notifications and resolutions of the State Legislature instead ordered restoration and controlled exploitation of the mineral wealth of that area.
2. Centre for Environmental Law World Wide Fund for Nature v. State of Orissa [AIR 1999 Ori. 14]
(A. Pasayat and P.C. Naik JJ.,)
The petitioners in this case sought the intervention of the High Court to stop a project involving the� construction of a fish landing Centre at Talchua as flora and fauna are directly going to be affected in and around the BhitarKanika Wildlife Sanctuary.
To investigate the disputed matter, the Court ordered for the constitution of a Committee by the Ministry of Environment and Forests, along with the Principle Secretary of the State and other authorities as its members. In furtherance of this, the Environment Impact Assessment Committee submitted its report to the Hon�ble court. In its contention the State Government justified before the� court that it would continue the project without affecting eco-systems of Bhirakani Sanctuary and also said that no violation has taken place.
The Court after referring the Committees Report and the arguments of the parties, observed that there couldn�t be a golden scale to evaluate these problems. The Court further laid down the directions to be followed by observance of conditions of the Environmental Statutes like the Wildlife Protection Act 1972, in the interest of the local people without affecting the environment.
Disposing the petition, the Court passed the following orders :
1. All possible attempts for the influx of migratory human population of the surrounding area.
2. To restrict the State Government from furthering the construction of bridges and developmental activities� in the Sanctuary.
3. Centre for Environmental Law, WWF-I v. Union of India(AIR 1999 354 SC)
[SC Agarwal, S. Sagir Ahmad and Srinivsan JJ.,]
Wild Life Protection Act - Sections 33-A, 34
Setting up of Veterinary Centers in Sanctuaries and National Parks
The present case highlights the level of non-compliance by States and Union Territories with the provisions of Wildlife Protection Act. In this case the Supreme Court after obtaining the affidavits by the various States found that there is hardly any compliance with the two sections (Section 33-A and 34), especially in relation to immunization of livestock.
The Court directed the States and Union Territories to take concrete steps for the establishment of veterinary centers of the Animal Husbandry Department in the immediate vicinity and territory of the National Parks/Sanctuaries within a period of two months in order to fulfill the requirement under Section 33-A.
As there was no concrete steps were been taken regarding registration of persons possessing arms as stated in the Section 34, the Court also directed that all the States and Union Territories Administration shall frame the necessary rules for the purpose of registration of persons in possession of arms.
4. Gujarat Navodaya Mandal v. State of Gujarat 1992 (2) Guj L. Her.359
Laying of pipeline inside a Sanctuary
The petitioners, Gujrat Navodaya Mandal, a registered Society under the Society Registration Act, filed this Writ Petition challenging the permission given to Reliance Petroleum Ltd., to lay a pipeline in the Marine National park/Sanctuary, Jamagar.
The respondents, Reliance Petroleum Ltd., (RPL) had undertaken �Moti Khadi Refinery Project� for the production of petroleum products. RPL, in order to function the said project had to import crude oil by sea fare and then to refine the same and produce the petroleum products in their refinery.
RPL had taken clearance from the State Government and No Objection Certificate (NOC) from Gujarat Pollution Control Board. The Environment Department of the Government of India gave clearance under Environment Protection Act, 1986 on certain conditions. Further RPL sought permission under section 2 of the Wildlife Protection Act, 1972, and section 2(ii) of Forest Conservation Act and the same was granted by� the Chief Wildlife Warden.
The petitioner argued that the Chief Wildlife Warden had no jurisdiction to pass the said order of clearance under Section 29 of the Wildlife Protection Act, 1972. The petitioner also contended that the said order would render damage to the forest as well as the marine life and environment. The petitioner prayed for striking down the impugned order.
RPL contended that the order would in no way cause damage to environment. RPL had engaged National Scientific and Industrial Research (CSIR) as well as National Institute Oceanography (NIO) to survey the implementation of the project. These organizations carried out the survey project and cleared the project� for RPL. The respondent informed to the Court that it has� adopted the spillage control system and would not cause any damage to marine life.
The Court after hearing the arguments observed, �if section considered as a whole, then it would be quite clear that the destruction done only with the permission granted by Chief Wildlife� Warden. Section 29 does not say that for granting such permission, Chief Wildlife Warden is required to obtain permission from the State Government which is to be satisfied that the same is necessary for better management and improvement of Wildlife. That condition is applicable only in case there is destruction or exploitation or removal of wildlife.�
The court also held that both the Central Government and the State Government have been taking necessary precautions to ensure that neither the ecology nor the environment is damaged while implementing the project in question. Hence� petition was rejected.
5. Nagarhole Budakattu Hakku Sthaapana Samithi v. State of Karnataka AIR 1997 Kar. 288
[G.C. Bharuka J.,] Grant of leasing rights in a National Park
The petitioner is an organization working for the welfare of the tribals and are interested in ensuring the maintenance of the ecological fame in Nagarhole National Park. They challenged lease hold rights of certain properties situated in the midst of Nagarhole National Park under lease deed by the Government of Karnataka in favour of M/s Gateway Hotels Resorts Ltd., This private company was running its business of boarding, lodging and restaurant, past 18 years in the National Park. The petitioners contended that the grant of leasehold rights violates the statutory restrictions of the Wildlife Protection Act, 1972 and Forest Conservation Act, 1980. The petitioner argued that there is a threat to tribals and eco-tourism will bring in modern day voices of the ultra urban culture. The petitioners alleged that the under the name of renovation of the structures, the respondent - Company is putting up new structures extending its operational activities to unworked forest lands by constructing metalled roads and cutting trees. They also claimed that powerful generator sets have been installed, which in due course will severely affect natural movement of wild animals.
The respondent company repudiated the allegations of the petitioners and argued that they placed builders on pre-existing jungle pathways to make the roads motorable for an easy access to the resort.
But, the Court felt that the State Government should have taken prior approval of the Central Government as stated under section 2 of Forest Conservation Act before leasing the same land to the private company.
A conjoint reading of section 20 and 35(3) of the Act spells out a restriction on requisition of any right in, on or every land comprised within the limits of the area of a National Park except by succession, testamentary or interstate.
The Court felt that after the declaration by the State Government about its intention to declare an area as a national park under section 35(1) no one can acquire any right in on or over the land comprised therein. The court ordered to the respondent company to immediately stop all its activities on the forestland in question and handover its possession to the State Government. The cost of the Public Interest Litigation assessed at 10,0000 to be paid by the State Government and respondent Company.
6. Tarun Bharat Sangh, Alwar v. Union of India, (1993) Sup (3) SCC 115
[B.P. Jeevan Reddy and N. Venkatachala JJ.,]
Forest Conservation Act, 1980; Sections � 2
Rajasthan Forest Act, 1953 - Sections - 29
�Mining operations in �Tiger Forest�
The present petition was filed by a voluntary organization, Tarun Bharat Sangh which works toward the cause of better environmental protection. The petitioners complained that the illegal mining operations for limestone and marble was going on in the area declared as tiger reserve in the Alwar district of Rajasthan. It prayed to the court that such activity should be stopped in the interest of the environment & ecology.
The tiger reserve is a protected forest under Rajasthan Forest Act and also a� National Park under Wildlife Protection Act, 1972. The petitioner argued that the mining license could be granted within the protected forest except with prior permission of the Government of India under Forest Conservation Act, 1980.
The committee�s report (a committee was appointed by the Court) revealed that 215 mines (Appendix �A� of the Report) fall completely within the areas declared as protected forest. 47 mines (Appendix �B� of the report) fall partly inside and partly outside the areas declared as protected forest. The Rajasthan Government on its behalf filed an application before the Court seeking permission to delineate� 5.02 sq. kms of� land from out the protected forest is the interest of economy of the State, industry and workers involved. This 5.02 sq. kms� of land was meant to be used for mining operations.
Meanwhile in May 1992 the Central Government issued a notification under Section 3 of the Environment Protection Act, 1986, which prohibits carrying of mining operations except with Central Government�s prior permission in the areas covered under Project Tiger.
Adjudicating the case,� the court issued a series of directions:
1. Stopping mines listed in A and B of the Committee Report
2. Central Government has to submit its report before 3 months regarding the State Government proposal to delete 5.02 sq. kms from the protected area.
3. Mines outside the protected forest permitted for four months and have to take Central Government permission in that period. They have to close their mines if permission is not granted by the Central Government.
7. G.R. Simon and Others v. Union of India (AIR 1997 Del 301)
[M. Jagannath Rao CJ., Anil Dev Singh and Manmohan Sarin JJ.,]
Wild life Protection Act, 1921
Constitution of India - Arts. 19(1)(g), 300, 300-A
The petitioners are manufacturers wholesalers and dealers engaged in retail trade of tanned, cured and finished skin of animals and are also engaged in retail trade of articles made of skin (animal articles).
The petitioners challenged chapter V A of Wild life Protection of the Amendment Act, 1986 and notifications issued there in as violative of Articles 19(1) (g) read with Art. 300 and Art. 300 A of the Constitution.
The petitioners argued that there is no nexus between the object of preservation of animal life and banning and destroying trade/business in the animal skins and articles made from them. Further they refused the offer of Bharat Leather Corporation to buy the articles, as the price was very low. The petitioner further argued that the amendment to the Act by which the holding of stocks on the expiry of the stipulated period, except reclaimed for personal use, becomes unlawful was assailed as confiscatory and as deprivation of property.� They contended that the amendment Act rendered the petitioners jobless without any compensation. The petitioners who had lawfully acquired skin and skin articles of animals (already killed) and had invested huge amounts of money were deprived of sources of livelihood and violative of Art. 19(1)(g). The protection of large numbers of wild animals could not be said to be in public interest. However the Court rejected the petitioners� contentions and stressed the importance of passing the Wild life Protection Act. It said that the wildlife form part of the cultural heritage in the same manner as archeological monuments painting, literature etc., and each and every animal plays a role in maintaining the ecological balance. The petitioners had all the opportunity of selling and disposing of their stocks to authorized persons from the date of amendments till the date of case and wasted that time.
The Amending Act was not a colorable exercise of power. The power to make necessary changes in the Schedule of Wildlife [Protection] Act vests in the Government under Sec. 61 of the Act. The submission that Chapter V-A of the Act provides for acquisition and confiscation of property is not correct in as much as for the preservation of certain species in Schedules I and II after the prescribed period in the Act makes the possession and retention of the said animal articles an offence. The question of making provision in the Act for purchase of stocks from the traders on market rate or for payment of compensation does not arise because the Amending Act does not provide for the acquisition of the stocks or nay other property held by them. It only provides for time period within which persons holding stocks of such articles have to dispose of the said stocks and upon the expiry of the stipulated period it becomes an offence under Sec. 49-C (7) of the Wildlife Act.
The Court also held that neither the State nor the Bharat Leather Corporation and State Trading Corporation are under any legal obligation to purchase the stocks of the petitioners. The petitioners are also not entitled to any further time for disposal of stocks. The stocks of the petitioners would therefore liable to be dealt with in accordance with the provisions of the Act. The amendment to the Act are valid and intravires.
8. State of Bihar v. Murad Ali Khan (AIR 1989 SC 1)
(Ranganath Misra and M.N. Venkatachalaiah JJ.,)
Wildlife Protection Act, 1972 - Sections 9, 51
Cr. P.C.- Sections-210, 420
Cognizance of Magistrate Under Wildlife Act
The present case relates to a special Leave petition under Art.136 of the Constitution by the State of Bihar against the decision of High Court of Patna quashing the order of Magistrate taking cognizance under section 9(1) and 51 of Wild Life Protection Act, 1972.
The three respondents with two others shot and killed an elephant in Kunduruguty Range Forest and removed ivory tusks of the elephant. The Range Forest Officer lodged written complaint with the Judicial Magistrate I class, Chibusa, alleging offences against the respondents under� Section 51 of the Wild Life Protection Act.
The learned Magistrate took cognizance of this offence and ordered issue of process to the accused. However, a case had been registered at the Police Station, Sanua, under Sections 447, 429 and 379 I.P.C read with sections 54 and 39 of the Wildlife Protection Act and the matter was under investigation by the police.
Meanwhile, the respondents approached the High Court under the Section 482 of the Cr.P.C. for quashing the order of the Magistrate taking cognizance of the alleged offence and issuing summons. The High Court accepted the petitioners� contention that Section 210(1) of Cr.P.C. was attracted as an investigation by the Police was in progress in relation to the same offence.� The learned magistrate would be required to stay the proceedings on the complaint and call a report from the police.� The Magistrate acted without jurisdiction in taking cognizance of the offence and ordering issue of process against the accused. Relying on this the High Court quashed the proceedings. The decision of the High Court was based on two grounds. Firstly, the learned magistrate acted contrary to the provision of Section 210 of Cr.P.C. and, secondly ,on the merits of the complaint.
Hon�ble Supreme Court observed that the High Court has erred in coming to the right conclusion. The court said �cognizance of an offence against the �Act� can be taken by a court only on the complaint of the officer mentioned in Section 55 and it has been done in this case...� cognizance can be taken only one way and that the complaint of a particular statutory functionary. There is no scope or occasion for taking more than once and accordingly Section 210 had no role to play.
The court also said that the Section 482 of Cr.P.C. should be used sparingly. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence.
The Court also held that an offence envisaged under Section 9(1) read with Sections 2(16) and 51 of the Wild life Protection Act, in its ingredients and content, is not the same or substantially the same as Section 429 of the Penal Code. Therefore in the case of killing of an elephant, the report of Police investigation which made out that no offence was committed under Section 429 of Penal Code� would not bar with initiation of such proceedings under Section 9(1) read with Section 51 of the Wild Life Protection Act, 1972. Hence the Court set aside the High Court order and the Magistrate order was restored.
9. Jagdish Singh v. State of Bihar� (1985 Cr.L.J. 1314), Patna High Court
(S.N. Jha J.,)
Wild Life Protection Act: Section 51
Rs. 50 penalty for killing a Bison
The petitioner filed the present appeal against the order of the trial Court which convicted him for the imprisonment of 3 months for killing a Bison. While the Wild Life Warden was patrolling the forest along with his staff in the Betla Reserved Forest, found the petitioner killing a Bison.� The Wild Life Warden prepared the seizure list and arrested the petitioner and filed the case before the sub-divisional magistrate. He charged him under Section 51 Wild Life Protection Act. Against this order the petitioners filed an appeal before Sessions Judge. The petitioner contended that the wild life warden had no jurisdiction to file a complaint; only Chief Wild Life Warden or any authorized under the Act by the State Government had the power to do so. However, the respondent argued that any officer authorized by the State Government to file a complaint is quite competent under the Act.
Rule 31 of 1973 Rules framed by the State Government provides power to Divisional Forest Officer and Deputy Conservator of Forest to file a complaint apart and along with the� Chief Wild Life Warden.In this case, complaint was filed after obtaining sanction from Divisional Forests Officer who had authorized to file the complaint. Finally the court held that the petitioner�s have no force in their submission. But the Court observed that as occurrence took 10 years ago. So no fruitful purpose would be served in sentencing them who are on bail. The court modified the order of 3 months imprisonment into fine only of Rs.50 to each of the petitioners.
10. Pradeep Krishnan v. Union of India�� (AIR 1996 SC 2040)
[Ahmadi CJI., B. L Hansaria and S. C Sen JJ.]
Wild Life Protection Act 1972
Challenging the order of the Department of Forests: Collection of tendu leaves by tribals in National Parks and Sanctuaries.
The petitioner, an environmentalist, filed this petition under Art. 32 of the Constitution challenging the legality and constitutional validity of an order of the Department of Forest, State of Madhya Pradesh. The order permitted Collection of tendu leaves from Sanctuaries and National Parks by villagers living around the boundaries in order to maintain their traditional rights. The petitioner contended that the said order violates Wild Life (Protection) Act, 1972, Art 14 and 21, 48-A and 51 A (g) of the Constitution
He also argued that order is malafide and against the public interest.
The petitioner�s contention was based on the following points:
1. Whether an area declared as a Sanctuary and National Park under Section 18 can be exploited for collection of minor forest produce in violation of the restrictions contained in the Act?
2. Whether State Government has the right to exploit minor forest produce from the Sanctuaries and National Parks?
The respondent informed the Court that there is no real danger to flora, fauna and wildlife in the National Parks and Sanctuaries. However the petitioner clarified to the Court that he is challenging commercial exploitation of tendu leaves through the contractor as it goes against the scope and object of Wildlife Protection Act, not the rights of tribals in relation to collection of tendu leaves in the National Parks and Sanctuaries. The tribals sought an intervention in the case. They argued that they are genuine users of tendu leaves. It is for their livelihood and not for commercial purpose�s. Collection of tendu leaves is a privilege for generations.
The court observed that the procedure with regard to acquisition of rights in and over the land to be included in a Sanctuary or National Park has to be followed before a final Notification under Section 26 or Section 35(1) issued by the State Government. There was no final Notification, being issued under these provisions. In the instant case, it is not the contention of the petitioner that the procedure of the acquisition of rights in or over the land of those living in the vicinity of the area proposed to be declared as sanctuaries and National Parks under Section 26A and 35 of the Act has been undertaken. It was this reason that the order of 28-3-1995 in terms stated that since no final notification was issued under the said provisions, the state government was not in a position to bar the entry of the villagers living in and around the Sanctuaries and the National Parks so long as their rights were not acquired and final notifications under the aforesaid provisions were issued. So State Government has not violated any provision of law, as the Government was not in a position to bar the entry of the villagers into Sanctuaries and National Parks.
The court directed to the State Government that steps must be taken issuing final notification and also ordered to institute an enquiry regarding acquiring rights of tribals with regard to land. The court directed that the above steps should be complied within a period of 6 months from the date of order.
The court gave several directions which includes:
S The State Government must complete the process of issuing final notifications
S Immediate action with regard to institution of an inquiry
S Acquire the rights of those who claim any right in or over any land proposed to be included in the Sanctuary/National Park
11. Rafique Ramzan Ali v. A.A. Jalgaonkar 1984 Cr. C. J. 1460 Bombay High Court
Sec. 39 to 51 of the Wildlife Protection Act 1972
Seizing the skins of snakes and lizards
The petitioner filed this appeal against the order of the Additional Chief Metropolitan Magistrate-conviction for offences under Section 39(3), 40(2), 42(1), 44(2), 49 read with Section 51 of the Wild Life Protection Act. The Assistant Conservator of Forest raided the petitioner�s shop when he was exhibiting for sale of articles made of lizard and snake skins.
The petitioners argued that the Wild Life Protection Act was designed to protect certain species of wild life as listed in the Schedule of the Act. So the Act does not apply to all types of snakes and lizards. The prosecution could only proceed if the articles seized were made of protected species of snakes and lizards.
After hearing both the parties the court concluded that the complaint did not disclose any offence especially whether articles seized were made of skins of species of lizard and snakes specified in the schedule. So the court held that the petitioner has not committed any offence under the Act, hence the conviction was set aside.
12. Nabin Chandra v. State [AIR 1961 ASS 18]
[Sarjoo Prasad CJ.,]
Indian Penal Code Section 429, 425
Killing of Rhinoceros
The petitioner shot and killed a Rhinoceros with a gun. The Magistrate convicted the petitioner under Section 429 of I. P. C and the Sessions Judge upheld the Magistrate�s decision in an appeal.
However the petitioner contended that the conviction under section 429 of the Indian Penal Code was not valid, as the section does not apply to the killing of wild animals like Rhinoceros. The court held �it is clear from the language of the section that the various animals enumerated therein are all domestic animals� so the words� �any other animal� in the section means animal of same kind or class, ejusdem generis, as domestic. animals and does not include wild animals. Moreover Rhinoceros cannot be held as domestic animal.
Further, the Court held that Section 425, which speaks of mischief, does not apply here. Where no one has any property or right in an animal, the rule of Mischief cannot be admitted. Hence the killing of Rhinoceros does not come within the meaning of section 425.
The court set aside the conviction and sentence of the petitioner and ordered for refund of fine imposed by the Wildlife warden.
13. Trilok Bahadur v. State of Arunachal Pradesh 1979 CR. L. J 1409 (Gauhati High Court)
(K.N. Sarkaria J.,)
Sec. 51 of the Wild Life Protection Act, 1972
Killing of a tiger
The petitioner, a Guard in Changlai camp, when on sentry duty observed and reported� the presence of a tiger. Accordingly he was ordered by� his Commander to fire two or three rounds in the air. The tiger instead fleeing came towards him and attempted to assault him. The accused had no option but to fire at the tiger. As a result the tiger died.
The Deputy Commissioner sentenced the accused for 6 months simple imprisonment under section 51 of the Wild Life Protection Act. Criminal revision was filed before this court.
The basic question before the High court was to determine whether the accused killed the tiger in hunting or his self-defense. The court observed that the nature and ferocity of the animal would be relevant in that context.
Romans called tiger �ferae nature� by nature of dangerous ferocity. In the case of attack by a � ferae nature� the victim cannot be expected to weigh the chances in a golden scale. The inference can be drawn that he was acting in his self-defense. It is a early a case of killing the tiger in good faith in defence of oneself and it cannot said that the accused was committing any offence prior to shooting the tiger that charged at him. He is completely protected under section 11(2) of the Act.
14. Jalandhar Chakma v. Deputy Commissioner of Aijawad (AIR 1983 Gau. 18)
Sec. 18 of the Wild Life Protection Act 1972
Eviction of villagers from Wild Life Sanctuary: Publication of notification.
The petitioners challenged the order of notification passed by Administrative officers under the Wildlife Protection Act 1972. The orders related to the eviction of certain villages that are within the Dampa Wild Sanctuary. The orders were made under Wild Life Protection Act. Under Section 18 of the Act a notification has been issued by the Development Commissioner declaring the area given in that notification within the Dampa Wild Sanctuary.
The petitioner contended that there was no publication of such notification in the Official Gazette and therefore the said notices cannot be sustained. The Court after observing the� provisions of Chapter IV of the Act� held that the said orders are without jurisdiction and they were to be set aside.
15. All India Mobile Zoo Owners and Animal Welfare Association v. Union of India AIR 2000 Delhi 449
Manmohan Sarin. J
Wildlife Protection Act, 1972, Sec. 38-39
Closure of Mobile Zoos
The petitioner prayed the Court to issue a writ of mandamus directing the Wild Life Warden under the Wild Life Protection Act 1972, for adequate compensation of Rs.15 to 20 lakh in the event of the closure of the Zoo, as ordered by the Warden under the Act. The Petitioner's challenge for recognition of their Mobile Zoos under Sec. 28(H) of the Wild Life Act. As they had failed, they were left with no other alternative but to surrender the animals before the Wild Life Warden for which they seek instruction from the Court for compensation. The Court after hearing both the parties, held that the petitioners were entitled to compensation as regards animals, the possession and holding of which was not illegal under the Act of 1972, but were surrendered to the authorities. But as to the holding of animals which was illegal and expressly prohibited under the Act, no such compensation need to be paid, nor any ex gratia payment could be made, as the petitioners were holding the animals without the permission of the authorities.
16. State of Himachal Pradesh v. Smt. Halli Devi, AIR 2000 H. P 113
R. L Khurana, J.
Wildlife Protection Act, 1972, Sec. 1
Claim of compensation: Attack by a Bear
The petitioner through this petition claimed compensation in tort for damages by injuries sustained by the claimant as a result of attack by a ferocious wild animal i.e., black bear. The question before the Court to adjudicate was whether the Wild Life Protection Act 1972 provides any sort of compensation in the form of damages to be awarded as a result of attack by wild animals? Whether the State is liable under the Law of Tort for payment of compensation?
The respondent, was a resident of the District of Chamba and while going to her cattle shed for the purpose of feeding her cows, was attacked by a black bear as a result of which she sustained the serious injuries: like loss of complete eye sight, compound fracture of left mandible, nasal bone, left forearm etc., her permanent disability was assessed at 100 % by medical authorities. Thus a claim of Rs. 1,00,000 was made against the Divisional Forest Officer. It was averred that the Divisional Forest Officer, under the scheme for the preservation of wildlife, had let loose the Bear and other protected wild animals in the Jungle and unfortunately killing of such animals is also prohibited by the State Government. As a result of the attack by the black Bear, the respondent suffered grievous injuries and sustained 100% permanent disability. She has spent about Rs. 50,000 on her medical treatment. In claiming damages, the respondent alleged that she suffered due to the acts of omission and commission of the defendants.
The defendants on their part, denied liability for the damages, and for letting loose the black Bear. They raised several objections to the petition, including one of jurisdiction. They further claimed that Sec. 60 of the Wildlife [Protection]Act, 1972, provides that no suit, prosecution or other legal proceeding shall lie against any officer or employee of the Central Government or State Government for anything which is done in good faith. Hence this suit is hit by the above section.
The Court while admitting the petition under the civil provision, held that claiming damages for the injuries sustained as result of attack by a wild animal would not be an action for damages caused by an Act which has been done in good faith by the State or its officers/ employees under the Act. Further the Court held that to succeed in claiming damages under the tortuous liability of the defendant, the onus was heavily on the plaintiff to show that damages was sustained by her due to some act of omission or commission of the defendants. The plaintiff had miserably failed to discharge such onus. There is no provision under the Wild Life [Protection] Act, 1972 for providing relief to a victim attacked by wild animals. Decision of the State Government to grant gratuitous relief to victims was a welcome sign of a democratic Government, but providing for such relief would not tantamount to admission of liability by the State, for tort or death or injuries by wild animals.