Pathak, C.J. -
(1.) BY this application under Article 226 of the Constitution of India the petitioner has challenged the order dated 18 -1 -1973 passed by the Deputy Commissioner. Lakhimpur in Misc. Case No. 1/71 -72 (Elephant Missing Case).
(2.) THE petitioner's case briefly stated is as follows. In 1969 -70 one Naranath Upetry was one of the Mahaldars in Elephant Mahal No. VI under Eastern Range, Borgang, District Darrang. The said mahaldar Naranath Upetry being unwilling to operate the mahal himself entrusted the management of No. VI Bongang Elephant Mahal to the petitioner though no formal agreement was entered into between them in this respect. Normally the elephant hunting operation period is from 1st October, till 15th of March, but on application being made by mahaldars the period may be extended till 30th of March. Upto 15th of March, 1970, the mahaldar operating No. VI Borgang Elephant Mahal could capture only one elephant and all the mahaldars including Naranath Upetry applied for extension and in anticipation of formal order of extension continued the mela shikar after 15th of March, 1970, till 30th March, 1970. After 15th of March, 1970, it so happened that Naranath Upetry captured two more elephants before 30 -3 -1970 and, in fact, the last one, which was a she -elephant, was captured on 27 -3 -1970. Shri L.C. Das. who was incharge of the Depot, was formally informed about the capture and he following the usual procedure recorded and numbered the catch as No. 21 and on 28 -3 -1970 measured the elephant last caught, fixed the royalty, Mahal fee and Sales Tax and completed all the official formalities. In Annexure 'A' to the petition it has been stated as follows: - Date of Fixing measurement -28 -8 -70
By whom measured: L.C. Das (VI)
(3.) AT the time the elephant in question (Catch No. 21) was captured, the permission for extension was yet to be received, and no transit pass was issued. But the Forest Department, after registering the catch, allowed the Mahaldar to take the elephant along with his earlier catch in his zimma under indemnity bond. The Mahaldar by virtue of the indemnity bond of Rs. 8,000/ - took the two elephants out of the mahal when the same had to be compulsorily wound up on 31 -3 -1970. A copy of the indemnity bond has been stated to be in the record of the case. Subsequently the order of extension was received by the authorities after which the royalty, mahal fee and sales -tax, totalling Rs. 854.75, were deposited with the Government on 4 -7 -1970 vide R. L. No. 94/3207 of 4 -7 -1970. Thereafter the petitioner had to square up his accounts with the Mahaldar in respect of the operation of the mahal and the petitioner agreed to purchase the she -elephant, being Catch No. 21, from the Mahaldar at Rs. 6,05l/ - and the purchase deed was accordingly executed on 15 -7 -1970. A part of the purchase price was not paid and it was agreed that the transit pass would be handed over to the petitioner on payment of the arrear price. By the time the petitioner purchased the elephant on 15 -7 -70, the elephant was already trained up though not fully and the petitioner engaged one Rudra Singh Narjari of Sesa, Simaluguri as keeper and trainer of the elephant. There was some dispute regarding the payment of salary to Rudra Singh Narjari whereupon the petitioner was threatened by said Rudra Singh Narjari, saying that he would do something. At that time the elephant was being kept at Sesa, Simaluguri and a few days thereafter Rudra Singh Narjari came back and reported to the petitioner that the elephant was lost in the jungle and he did not give any explanation about her whereabouts. Immediately thereafter the petitioner lodged a complaint before the Sub -Divisional Officer. North Lakhimpur, on 7 -9 -1970 alleging that Rudra Singh Narjari was illegally concealing or converting the elephant to his own use. A copy of that complaint has been annexed to the petition as Annexure 'B'. Thereafter, the petitioner made a frantic search but did not find any trace of the missing elephant. He continued the search in the entire Lakhimpur region. In the meantime the petitioner paid the balance amount to the Mahaldar and obtained the transit pass on 28 -2 -1971 from the Mahaldar in respect of the elephant in question. A copy of the transit pass had been filed and is in the record.
Thereafter the elephant in question was found with the elephants of one Bethai Miri of Badhakara Basti who reported the matter to the Forest Department. The petitioner represented his case before the Forest Department, which, finding that the description of the elephant found and the elephant reported to be lost by the petitioner tallied, handed over the elephant to the petitioner on an indemnity bond of Rs. 8,000/ - on 18 -7 -1971 under order dated 5 -7 -1971 from the Divisional Forest Officer. Darrang within whose jurisdiction the North Lakhimpur range was included at that time. The descriptions of the elephant recorded by the Forest authorities were as follows:
Thereafter the petitioner found an announcement made by the Additional Deputy Commissioner. Lakhimpur District, Dibrugarh dated 5 -7 -71, inviting claim for the elephant in Elephant Missing Case No. 1/71 -72. Maniram Saikia and Thogiram Kalita. Respondents Nos. 4 and 5 herein, laid claim to the elephant. Both the Respondents Nos. 4 and 5 gave descriptions of their missing elephant, which are quoted in the petition. Thereafter some dispute arose as to the custody of the elephant, which was so long in the custody of the petitioner. The petitioner as well as the Respondents Nos. 4 and 5 were heard and ultimately by order dated 18 -1 -1973 in Misc. Case No. 1/71 -72 the Deputy Commissioner refused to restore the elephant to the petitioner or to the two other claimants, namely. Respondents Nos. 4 and 5, but gave it to the Forest Department. Against this order the present Writ petition has been filed.
In the notice dated 5 -7 -1971, issued by the Additional Deputy Commissioner. Lakhimpur calling for claim regarding the elephant in question, it has been described as Bangharasia Sarengi (she -elephant). It would be convenient to quote this notice -
The general public is hereby informed that in the 'Eleka' of the Divisional Forest Officer. Darrang one Bangharasia Serengi she -Elephant is being kept after capture and the elephant is being kept in the zimma of Shri Hira Bordoloi of Goshain -bari village by order of the Divisional Forest Officer, Darrang, Tezpur. The description of the elephant is given below. If anybody wants to claim the elephant he shall submit application with necessary documents in proof in the office of the undersigned within three months.
Description of Elephant:
In pursuance of this notice, the petitioner and the Respondents Nos. 4 and 5, namely. Maniram Saikia and Thogiram Kalita, filed claim petitions and the Deputy Commissioner after considering the claims rejected all the claims and the operative portion of the order is in the following term:
In short, none of the three claimants have been able to establish definitely their claim on the elephant in question. In the circumstances, the elephant must revert to the keeper of its natural habitat viz., Forest Department. The present custodian of the elephants will arrange accordingly.
We have heard the learned Counsel for the petitioner, the learned Counsel for the Respondent No. 4 and the learned Counsel for the State. There is a dispute regarding the ownership of the elephant in a question amongst the three claimants. From the notice quoted hereinabove it is quite clear that according to the Deputy Commissioner also the elephant in question is Bangharasia Sarengi, that is to say, it is not a wild elephant. That being the position it cannot be brought within the definition of forest produce as given in Section 3 of the Assam Forest Regulation. If it is not a forest produce, then the elephant cannot be dealt with by the provisions of the Forest Regulation or the Rules made or instructions issued thereunder.;