Yakub Ali vs The Dy. Director, Wild Life ...
2011 Latest Caselaw 4166 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 26th August, 2011

+                                    W.P.(C) 3782/2011

%          YAKUB ALI                                           .....Petitioner
                              Through:      Mr. L. Roshmani & Mr. Israr Ahmad,
                                            Advs.

                         Versus
    THE DY. DIRECTOR, WILD LIFE
    (PROTECTION) & ORS.                          ..... Respondents
                 Through: Mr. Jatan Singh & Mr. Kunal Kahol,
                            Advs. for UOI.
                            Ms. Sonia Arora & Mr. Ashutosh
                            Shahi, Advs. for R-2 to 4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.         Whether reporters of Local papers may              Not necessary
           be allowed to see the judgment?

2.         To be referred to the reporter or not?             Not necessary

3.         Whether the judgment should be reported            Not necessary
           in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, claiming to be the owner of an elephant named Rangeli

seized by a team of Wildlife Department of Delhi on 14th October, 2005 has

filed this writ petition seeking mandamus for delivery of custody thereof.

2. The counsel for the respondents appearing on advance notice on 30 th

May, 2011 was directed to ascertain the present status of the elephant. A

status report was handed over on 6th July, 2011. The counsel for the

respondents has today in Court handed over a short reply affidavit and which

is taken on record. The counsels for the parties have been heard.

3. It is the case of the petitioner that he purchased the said elephant on

4th December, 2001 from Shri Harihar Chetra Mela, Sonpur, Chhapra, Bihar

at a price of `1,50,000/-; a receipt of payment of consideration, a provisional

Ownership Certificate issued by the concerned Forest Department of

Chhapra, Bihar and a Transit / Transport Pass issued under Section 43(2) of

the Wildlife (Protection) Act, 1972 in favour of petitioner for transport of the

said elephant from Bihar to Delhi are filed with the petition. The petitioner

claims to have brought the elephant to Delhi on 28 th December, 2001 and

applied for Form No.11 under Rule 34 declaring the purchase of the said

elephant.

4. The petitioner claims that the elephant was in the care of his brother

Mr. Yusuf Ali on 14th October, 2005 when the same was seized; that on

return to Delhi on 19th October, 2005 he applied for release of the elephant

but which application was rejected without giving him any opportunity of

establishing his ownership of the elephant. It is further the case of the

petitioner that his brother Mr. Yusuf Ali was arrested on 20 th October, 2005

for the offence of illegally possessing the elephant; that though his brother

claimed that he had Ownership Certificate of the elephant and that the

elephant bore ID mark in the form of a micro-chip put by the Additional

Principal Chief Conservator of Forests, Itanagar, Arunachal Pradesh but

could not prove the ownership of the elephant and the seized elephant was

found to be without any micro-chip.

5. It is yet further the case of the petitioner that his brother Mr. Yusuf

Ali was the owner of another elephant named Dhanmoti which he had

acquired from Itanagar, Arunachal Pradesh and which had a micro-chip, but

being an illiterate person confused Rangeli for Dhanmoti.

6. The petitioner further claims to have in the year 2005 applied for

Superdari of the seized elephant but which application was dismissed by the

ACMM and the Criminal Revision Petition preferred thereagainst dismissed

by the Session Judge; Cr.M. (Main) No.6092/2006 preferred in this Court

was also dismissed on 16th November, 2006.

7. The petition further discloses that the Wild Life Inspector, Delhi

applied to the Court of ACMM for implanting the micro-chip in the seized

elephant which and for shifting the same to the Rajaji National Park,

Haridwar, Uttranchal and which was allowed on 14th November, 2006; the

petitioner again preferred Criminal Revision No.21/2006 against the said

order which was dismissed and the seized elephant was transferred to Rajaji

National Park.

8. The brother of the petitioner Mr. Yusuf Ali was convicted for illegally

possessing the seized elephant. The appeal filed by him was dismissed and

the remedy thereagainst preferred to this Court also withdrawn.

9. The respondents in the status report filed in this Court have disclosed

that the seized elephant is presently also at Rajaji National Park. The

respondents in their counter affidavits have stated that the brother of the

petitioner Mr. Yusuf Ali at the time of seizure as well as subsequently

during the trial had taken a stand that the elephant which was seized

belonged to him but later on shifted his stand to state that the seized elephant

belonged to the petitioner herein; that the learned ASJ while dismissing the

appeal against conviction has also held that no valid documents of lawful

possession of elephant had been produced and it could not also be proved

that the seized elephant was the same as that purchased by the petitioner

herein. It was further held that the transit documents produced did not relate

to the elephant which had been purchased from Sonpur. It is thus contended

that the petitioner by this petition is seeking to upset the findings of fact

already arrived at in the trial against the brother of the petitioner.

10. The counsel for the petitioner has during the course of hearing handed

over a Veterinary Health Certificate purportedly issued by the Rajaji

National Park, Dehradun and in which the name of the elephant is described

as Rangeli. I may however notice that the name of the elephant is described

as "Radha" in the status report handed over on 6th July, 2011.

11. The counsel for the petitioner has argued that the findings in the

judgment in the prosecution against his brother cannot be held against him

and the petitioner on the basis of the documents filed before this Court and

which he could not produce earlier, has been able to make out a case of his

ownership of the seized elephant and is thus entitled to the writ of

mandamus claimed.

12. I am unable to agree with the counsel for the petitioner. There is a

categorical finding in the judgment dated 2nd June, 2010 of the Additional

Session Judge in the appeal preferred by the brother of the petitioner that the

petitioner who had appeared in that prosecution as DW-1 had failed to prove

that the seized animal was the one bought by him from Sonpur on 7 th

December, 2001. In the face of the said factual findings in the criminal

prosecution, this court cannot in the exercise of writ jurisdiction, without

trial, hold to the contrary. If at all the petitioner, for the reason of being not

a party to the prosecution, has any right to independently establish his

ownership of the seized animal, it has to be in a proceeding where evidence

can be led and cannot be by way of this writ petition.

13. The petition is also liable to be dismissed for the reason of delay and

laches alone. The animal was admittedly seized on 14 th October, 2005. This

petition has been filed after six years therefrom. It is inexplicable as to why

the petitioner during the last six years did not take any steps in this regard

and has filed this petition now.

14. The writ petition is accordingly dismissed with liberty to the petitioner

to in the proceeding where evidence can be lead, make a claim in accordance

with law for the ownership of the animal seized on 14 th October, 2005.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 26, 2011 „gsr‟