ABID RAJA CHOUDHURY Vs. THE STATE OF ASSAM AND OTHERS

JUDGEMENT

(1.) In this writ application the core question is whether the State Government has any jurisdiction to hear appeal or revision against an order passed by the Deputy Commissioner exercising his powers under the Elephants Preservation Act, 1879 or the Elephant Hunting Rules, 1930 framed by the State Government u/s. 6 of "the Act". The Deputy Commissioner directed respondent No. 3, a "Kheddah Shikari", a licensee permitted to capture wild elephants, to return the cow-elephant to the petitioner. On enquiry made and having held that the cow-elephant was indeed the domesticated elephant of the petitioner which had escaped to jungle and captured by Respondent No. 3. The petitioner contends that the order of the Deputy Commissioner, Cachar dated 23.6.78 directing Respondent No. 3 to return the cow-elephants to him was final and the State Government had no jurisdiction to set aside the said order under "the Act" or "the Rules" framed thereunder and has questioned the decision of the State Government in this Writ application under Art. 226 of the Constitution.

(2.) The relevant facts necessary for disposal of the question posed are set forth hereinafter:

(3.) In the instant case, respondent No. 3 had captured the cow-elephant with a calf from Elephant Mahal No. 3 on or about 27.3.78. The petitioner, on information received about the capture of the elephant claimed that he was the owner of the animal and produced a document, namely, T.P. No. 77/4385 dated 9.3.1966. The petitioner claimed that the name of the cow-elephant was "JOYMALA". He claimed that the said elephant had escaped to jungle but captured by a licensee whereupon the petitioner lodged claim before the then Deputy Commissioner, Cachar, who by his order dated 11.8.72 allowed the claim of the petitioner and returned the same to him. After about 8 months, the elephant again fled into jungle. The petitioner claimed that the elephant captured by Respondent No. 3 was his elephant. The claim of the petitioner was thoroughly examined by the Ranger who reported that the elephant belonged to the petitioner. A thorough enquiry was made by the then Additional Deputy Commissioner, Cachar as directed by the Deputy Commissioner. The Deputy Commissioner, on the basis of the enquiries made and on perusal of the materials available held that the petitioner was the owner of the captured cow-elephant and directed respondent No. 3 to hand her over to the claimant The Deputy Commissioner found that all the identification marks of the captured elephant tallied with the elephant of the petitioner which had escaped to jungle. However, the Deputy Commissioner, Cachar rejected the claim of the petitioner for the calf on the ground that it was born while the cow-elephant was at large in wild forest. Naturally, the petitioner could not claim ownership in respect of the baby elephant born while its mother had escaped into jungle and lived therein. The parties preferred appeals against the orders.