pil to ban elephant polo / elephant abuse moved by naresh kadyan and supported by peta india

8/14/2019 PIL to ban Elephant polo / Elephant abuse moved by Naresh Kadyan and supported by PETA India.

1/23

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

1


2/23

(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 Honble 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 (42nd Amendment) Act, 1976 in

Part IV of the Constitution of India, which

reads as under:-

2


3/23

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

Indias 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

3


4/23

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

4


5/23


6/23

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, 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

6


7/23

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) (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 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

7


8/23

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

8


9/23


10/23

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

10


11/23

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

11


12/23

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

12


13/23


14/23

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

14


15/23

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 Honble 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 Honble Court or before the Honble

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,

15


16/23

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 Honble 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 Honble Court.

Any other order which this Honble Court

thinks fit and proper in the facts and

circumstances of the case, may kindly be granted

in favor of the petitioner.

HUMBLE PETITIONER

16


17/23

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

17


18/23


JAIPUR


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.

18


19/23


JAIPUR



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.

19


20/23

20


21/23


JAIPUR



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


21


22/23


JAIPUR



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 theprovisions 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.


22


23/23

pil to ban elephant polo / elephant abuse moved by naresh kadyan and supported by peta india

Documents