Viniyog Parivar Trust vs. Union Of India& Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.147 OF 2014 IN WRIT PETITION NO.1030 OF 1997

Mr. Kunal Kumbhat i/by Ms Sunanda Kumbhat for the Applicant. Mr. G. Hariharan with Mr. Mohamedali Chunawala i/by Mr. Pankaj Kapoor for Respondent Nos.1 & 2. Mr. Suresh Kumar for Respondent Nos.3 to 5. Mr. Bharat Mehta, AGP, for Respondent Nos.6 to 9.

CORAM: S.C. DHARMADHIKARI & DR. SHALINI PHANSALKARJOSHI, JJ.

DATE : AUGUST 12, 2016

P.C:

1. At the last hearing, we had indicated to the Conservator of Forests & Wildlife that, he should identify certain places where the exotic birds which have been seized can be located. On 2462016, the Conservator informed us that he has

identified a place close to Karnala Bird Sanctuary. The details are also set out by him in para 6 of the affidavit dated 1062016. Therefore, we left the matter to the Conservator and requested him to take a decision in the best interest of preservation and protection of these birds. He may take the assistance of all the organisations including the applicant, but it was his primary responsibility and duty since he had been called upon by the Court to report with regard to the condition of these birds.

2. The matter was placed on 2272016 and the affidavit, dated 2172016, tendered on that day was taken on record. The matter was to be taken up on 582016 but unfortunately, for want of time, the same could not be taken up.

3. When it was called out today, our attention is invited, and very fairly by even the Advocate for the applicant, to this affidavit of the Conservator of Forests & Wildlife, Thane, in which he has narrated that unfortunately out of the 289

seized birds and 41 seized animals, a personal inspection revealed that most of the birds, as identified in this affidavit and particularly the species, have died. A medical report is annexed which indicates, according to the deponent of this affidavit, that most of the birds have died due to infection suffered. This infection was suffered on account of poor hygienic condition in the cages from where they were seized as well as malnourishment in spite of the direction given to them at the veterinary clinic.

4. We do not wish to enter into this unsavoury and unfortunate controversy of who is to be blamed for the state of affairs that we have found from this affidavit. We would not encourage any mudslinging and allegations and counter allegations in this Court. The Court's paramount concern was preservation and protection of these rare species of birds, who were sought to be smuggled and by antisocial elements. It is now reported that out of the 289 birds and 41 animals, only 100 Budgerigars and 4 Guinea Pigs are alive.

5. The Conservator of Forests is present in Court. We have perused in his presence the affidavit and annexures thereto. We are unhappy, anguished and pained to note that despite sincere efforts by this Court and it repeatedly pursuing the cause, the authorities have exhibited a very insensitive and unfriendly attitude. It appears that none is concerned about the preservation of the birds and animals which are rare and when their species is extinct. None feels that preservation and protection of these birds is necessary for our progeny and future generations. That birds help trees and flowers to blossom and the whole nature presents a beautiful picture only when the birds inhabit the trees and their branches. It is their presence which makes our morning and evening pleasant and relaxing. Possibly, officers in the State machinery and those in charge of the NGOs are aware of this and, therefore, they thought that it is their duty to assist the Court. Unfortunately, this assistance is not wholehearted. In bits, pieces and parts information is revealed and which is indeed sad. The Court cannot force people

every time to disclose the true state of affairs. In the circumstances, we would now trust only the Conservator of Forests & Wildlife, Thane and his office, so also the staff reporting to him coupled with his medical team to report to this Court about the condition of these remaining 100 odd birds.

6. After hearing both sides, we direct the Conservator, who is present in the Court, to immediately take steps and seize these birds from the custody of whosoever presently is in charge of the same. If these birds are in the custody of some NGO, then they ought to be seized by making a proper inventory and which would reveal their species, their present state including their medical condition and they should be certified by the Government veterinary surgeon, on personal examination and inspection. Thereafter, with his concurrence and approval these birds should be shifted to the location selected by the Conservator. He is placed now incharge of these birds and it is entirely for him to take them to a safe destination and endeavour should be made to protect and preserve them. We

now leave it only to the Government machinery and it is only if the Government machinery is not in place, then, he must take the assistance of such persons, authorities and associations who have a prior experience and have handled such a situation of keeping rare species of birds and animals and if they do not have a setup, including backup medical team for emergent and other situations in which frequent or continuous treatment will have to be administered expeditiously so that the birds do not suffer a life threatening condition, then they cannot be trusted. Further, for the arrangements to be made, including the measurement, height of cages and other basic amenities and facilities including clean water some guidelines for the NGOs may be issued, if not already in place. If they are not, then, this is a test case now where the concerned Ministries and Departments of the State should forthwith take necessary measures and lay down guidelines so that none of the NGOs, Organizations and Trusts or individuals taking or being placed in custody of such rare birds and animals leave them to die, as noticed in this petition and proceedings. We have found that

everybody is very eager to take credit when such birds are sighted and animals are located and thereafter promptly publicity is given by the NGOs and persons to the act of allegedly rescuing them. Rescue does not mean that you photograph yourselves with all the birds and animals. Rescue operations would mean caring for them and taking them to a clean and clear surrounding and hygienic destination for their preservation and protection for progeny. If these responsibilities are taken, then alone these NGOs, Organizations, Trusts or individuals would be justified in such acts, otherwise they will have to suffer consequences including criminal prosecution. We do not approve of any concession and relaxation hereafter to be given to such associations. One who does social work and social service ought to realise that he is a responsible citizen of this country and his fundamental duties oblige him to work for the preservation and protection of the environment. That means having a permanent set up and establishment. If that is available, then, alone they should venture and indulge in such a cause.

7. We say nothing more and we hope and expect the Conservator to take all the steps within ten days from today.

8. Place this matter on the supplementary board on 2782016.

(DR. SHALINI PHANSALKARJOSHI, J.) (S.C. DHARMADHIKARI, J.)