JUDGMENT

The prayer in this writ petition is to quash Ext.P11 and for a direction to the 1^st respondent to reconsider Exts.P5 & P7 afresh as a consolidated one as directed in Ext.P10 treating them as filed within time. The petitioner's father was having a certificate of ownership regarding an elephant tusk. The elephant tusk devolved on the petitioner on the death of the petitioner's father. Section 40(2B) of Wild Life (Protection) Act, 1972 ('the Act' for short) requires a person who is inheriting any captive animal, animal article, trophy or uncured trophy under sub-section (2A) shall within ninety days of such inheritance make a declaration to the Chief Wild Life Warden under Section 40(1) of the Act. Section 40(1) reads thus:

“40. Declarations – (1) Every person having at the commencement of this Act the control, custody or possession of any captive animal specified in Schedule I or Part II of Schedule II, or animal article, trophy or uncured trophy derived from such animal or salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days from the commencement of this Act, declare to the Chief Wild Life Warden or the authorised officer the number and description of the animal, or article of the foregoing description under his control, custody or possession and the place where such animal or article is kept.”

2. Section 40(2A) of the Act prohibits any person other than a person having certificate of ownership from acquiring, receiving, keeping in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II. The prohibition does not apply to cases of inheritance. In the case on hand, the declaration was not submitted within 90 days as required under Section II. The contention of the petitioner is that the period specified under Section 40(2B) of the Act cannot be treated as mandatory requirement and an application submitted after 90 days is also liable to be considered by the officer concerned. Reliance is placed on Ext.P9 judgment of this Court in WP(C) No.13588/2012, wherein this Court has held that the declaration in terms of Section 40(2B) of the Act is to be considered even if application is made after 90 days.

3. Having gone through the entire statutory provision, I find that the Statute itself clearly says that possession of animal material by way of inheritance would be lawful even if a certificate of ownership was not obtained. It is thereafter that the Statute says about the requirement of submitting a declaration. The declaration under Section 40(1) of the Act is regarding the number and description of the animal, or article of the foregoing description under the control, custody or possession and the place where the animal or article is kept. It is not really a request for issuance of a certificate of ownership. Section 42 of the Act says that the Chief Wild Life Warden may, for the purposes of Section 40 issue a certificate of ownership in the prescribed form to a person who is in lawful possession of any animal article for the purposes of identification. The said issuance of certificate of ownership is not necessarily on a request for the issuance of such a certificate and can be issued by the Chief Wild Life Warden wherever he finds that the possession is lawful.

4. The Special Government Pleader (Forest)

submitted that the Hon'ble Supreme Court has in the judgment in Vishalakshi Amma V. State of Kerala reported in (2023 KHC 6272) held that if a declaration is not made within time, the animal/article shall vest in the Government. The Hon'ble Supreme Court was not considering a case of inheritance and was considering the effect of Rule 4(2) of the Wild Life Stock Rules, 2003. The said judgment cannot be applied in the case of an inheritance where the predecessor was holding a certificate of ownership.

In the above circumstances, I find no reason to vary from the view taken in E