Disposed

Makbul Hussain and Anr. v. the State of Assam and 3 Ors.

Gauhati HC3 Mar 2025WP(C)/171/2025

Case brief

AI extract

What is this about?

Petitioners, attorney holders of an elephant's owner, sought release of the detained elephant from forest authorities. Court directed petitioners to appear before the Assistant Conservator of Forests with original documents within a week; authorities to decide within ten days and ensure the elephant's medical treatment and nourishment in the interim.

What did the court decide?

Direction to petitioners to appear before authorities with documents for consideration; authorities to pass orders within ten days; elephant's welfare ensured in interim.

Makbul Hussain and Anr. Vs the State of Assam and 3… — Writ and Judicial Review | Gauhati HC (2025)

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GAHC010005652025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/171/2025

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MAKBUL HUSSAIN AND ANR

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S/O LATE JAINUDIIN SEIKH, R/O VILL- NAGAJAN, P.O.-KHARUPETIA, P.S.KHARUPETIA, DIST- DARRANG, ASSAM

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2: BHIMI KHATUN W/O SADDAM HUSSAIN R/O VILL- NAGAJAN P.O.-KHARUPETIA P.S.-KHARUPETIA DIST- DARRANG ASSA

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VERSUS

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THE STATE OF ASSAM AND 3 ORS

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TO BE REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-06

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2:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE) AND CHIEF WILDLIFE WARDEN GOVT OF ASSAM ARANYA BHAWAN PANJABARI GUWAHATI-781037

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3:THE DIVISIONAL FOREST OFFICER SONITPUR WEST DIVISION FOREST DEPARTMENT ASSAM

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4:THE ASSISTANT CONSERVATOR OF FORESTS SONITPUR WEST DIVISION TEZPUR FOREST DEPARTMENT

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ASSA

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Advocate for the Petitioner : MR. A R BHUYAN, MR S ABDULLAH,MR N Z CHOUDHURY Advocate for the Respondent : SC, FOREST, MR. K. GOGOI, ADDL. SR. GA, ASSAM

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BEFORE HON’BLE MR. JUSTICE KARDAK ETE

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O R D E R

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Date : 04.03.2025.

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Heard Mr. A.R. Bhuyan, learned counsel for the petitioners. Also heard Mr. S.R. Baruah, learned State Counsel for the respondent No.1 and Mr. R.R. Gogoi, learned Standing Counsel, Department of Environment and Forest, Govt. of Assam appearing for the respondent Nos. 2, 3 & 4.

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By filing this writ petition, the petitioners have prayed for a direction to the respondent authorities, particularly the respondent Nos.3 & 4, i.e. the Divisional Forest Officer, Sonitpur West Division, Department of Environment and Forest, Assam and the Assistant Conservator of Forests, Sonitpur West Division, Department of Environment and Forest , Assam, to release the elephant, namely, Rai Bahadur, which has been detained and under the custody of the respondent authorities.

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The petitioners claim to be the Attorney holders of Smti Nilupama Choudhury Das, who is the owner of the elephant, namely, Rai Bahadur, aged about 36 years, Sex- Male, Bandh- Kumra, Height 2.14 meter, Nail 18 Nos. It is

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the contention of the petitioners that the said elephant has been illegally detained by the respondent authorities in violation of the provisions of the Wildlife Protection Act, 1972 and the Captive Elephant (Transfer or Transport) Rules, 2024.

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The elephant in question was under the custody of the petitioners being the power of attorney holders of Smti Nilupama Choudhury Das, the owner of the said elephant. A Certificate of Ownership was issued for control, custody or possession for the purpose of personal use. It is the contention of the petitioners that due to lack of food and nourishment, a General Power of Attorney was executed, whereby, they have been authorized, appointed and nominated as their attorneys’ for the welfare of the elephant pursuant to which the said elephant has been under their care and custody.

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While the elephant “Rai Bahadur” was under the proper care and custody of the petitioners, being the attorney holders of the original owner of the elephant, the respondent authorities have taken the elephant into their custody on 23.09.2024. The petitioners have filed representation dated 11.12.2024, before the Chief Conservator of Forests and made a request to release the elephant to the petitioners, considering the wellbeing of the said elephant. However, the same has not been considered.

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The respondent authorities vide letter dated 23.12.2024, directed the petitioner No.1 to appear before the authority within ten (10) days from the date of issue of said letter with all legal documents related with the said elephant. Thereafter, vide letter dated 03.01.2025, the Assistant Conservator of Forests, Sonitpur West Division, Department of Environment and Forest , Tezpur

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again directed the petitioner No.1 to appear along with the original documents within a period of ten (10) days and further directed to produce the identity proof of the petitioner No.1 within a period of five (5) days.

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Mr. A.R. Bhuyan, learned counsel for the petitioners submits that pursuant to the aforesaid two letters, the petitioner No.1 appeared before the respondent authorities with all the documents as directed. However, no order has been passed despite oral assurance that the elephant “Rai Bahadur” shall be released. Therefore, Mr. Bhuyan, learned counsel submits that the respondent authorities may be directed to release the said elephant under the care and custody of the petitioners.

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Mr. R.R. Gogoi, learned Standing Counsel, Department of Environment and Forest appearing for the respondent Nos. 2, 3 & 4, on instruction, submits that the petitioners have made an illegal attempt to sale the elephant in the State of Arunachal Pradesh, which would not be permissible under the law, as the petitioners are not the owner of the elephant “Rai Bahadur”. The action of the petitioners is clearly in violation of the Wildlife Protection Act, 1972. Therefore, appropriate action is required to be taken against the petitioners.

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Having submitted above, Mr. Gogoi, the learned Standing Counsel fairly submits that since the petitioners have been asked to appear before the appropriate authority with all the required documents for consideration as to whether the petitioner would be entitled to have the care and custody of the said elephant, the petitioners may appear before the respondent authorities with all the documents as sought for, so as to enable the respondent authorities to settle the matter.

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I have considered the submissions of learned counsel for the parties and perused the documents annexed with the writ petition as well as the instructions placed by the learned Standing Counsel, Department of Environment and Forest, Govt. of Assam.

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The petitioners, admittedly are not the original owners of the elephant “Rai Bahadur” but the attorney holders. The elephant “Rai Bahadur” appears to have been under the care and custody of the petitioners by virtue of P ower of Attorney executed by the original owner, namely, Smti Nilupama Choudhury Das. The authorities in the Department of Environment and Forest, Govt. of Assam, having found the elephant under certain situation, has taken the said elephant under their captive in accordance with the relevant provisions of law.

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The respondent authorities vide letters dated 23.12.2024 and 03.01.2025, have directed the petitioners to appear with the original legal documents with identity proof. Although, Mr. A.R. Bhuyan, learned counsel for the petitioners fervently submits that the petitioners had, in fact, appeared with all the documents, no action has been taken nor any order has been passed by the respondent authorities, it is not discernable from records as to whether the petitioners in fact have appeared before the respondent authorities with all the documents, as per letters dated 23.12.2024 and 03.01.2025.

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13. Having considered that the petitioners have been directed to appear before the respondent authorities with all the documents, I am of the view that it would be appropriate if the petitioners are directed to appear before the respondent authorities along with all the required documents, as sought for by the respondent authorities for settlement of the issue, as the matter involves

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wellbeing of the elephant “Rai Bahadur”.

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14. Accordingly, without going into the claim and counter claim of the parties as well as the merit, the petitioners are directed to appear before the Assistant Conservator of Forests, Sonitpur West Division, Department of Environment and Forest , Assam at Tezpur, within a period of one week from today along with all the original documents, as sought for by the respondent authorities. On such appearance, the respondent authorities shall consider and pass appropriate order(s), within a period of ten (10) days thereafter.

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In the interregnum, it is provided that the respondent authorities in the Department of Environment and Forest , Assam shall ensure that the elephant “Rai Bahadur” is given the proper medical treatment, food and other nourishments, as directed by this Court on 20.01.2025.

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16. The writ petition stands disposed of, in terms above.

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JUDGE

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Comparing Assistant

Makbul Hussain and Anr. v. the State of Assam and 3 Ors.

Case brief

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Makbul Hussain and Anr. v. the State of Assam and 3 Ors.

Case brief

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