BCS'Si?! c .^.^ '?" 7} L.---' THE HIGH COURT OF JUDXCATURB AT BILASPUR WRIT PETITION N0. OF 2006 PETITIONBRS '^ ^c^""..^- .>y:$^<v4-'"" ...-'''^syy' -ey /\. Mohd. Riyaz Khaa, son of Late Mohd. Sakoor Khan, aged about 62 years, Occupation- Cattle Trader, resident of Ma^apur, Tehsil & P.S. Surajpur, District Ambikapur (C.G.). /2, Mohd. Irfan Klian, son of Majbullah Khan, aged about 25 years, resident of Village Kotmi, P.S. Pendra, District Biiaspur (C.G.). 3. Ghanshyam, son of Jhannulal, aged atoout 3'5 years, resident of Muwarpara, Marwahi, Tehsil Gorelia, District Bilaspur (C.G.) 4. Mobil Khan, son of Motiz Khan, aged about 24 years, resident of Pendra, District Bilaspur (C.G,). Shakil Khan, son of Motiz Khan, aged about 28 years, -/5 •esident Pendra, District Bilaspur (C.G.j. 6. Ansar Khan, son of Akhtar Khan, aged aboiit 32 years, resident of Village Jashimod, P.S. Bhatgaon, Tehsil Surajpur, District Sarguja, 1-1 s^^^^^^ 7. Tanveer Khan, son of Motlz Khan, aged about 26 years, resident of Pendra, District Bilaspur (C.G.). j 8. Ibrar Khan, son of Basliccr Khan, aged about 55 years, resident of Village Jashiniod, P.S. Bhatgaon, Tehsil Surajpur,; District Sarguja. Vs SESPOHDEITTS ^ y /" 1. State of Clihattisgarh, throug-h. the Secretary, Muiistrv of Home, D.K.S. Bhawan, Raipur. 2. The CoUector, Sarguja. 3, The Sub Divisional Officer, Dlstrict Sarguja. 4. TIie Superinteudent ofPolice, District Sarguja. 5. The Station House Officer, Police Station Rainanujnagar. Pi ^ 4-) - Sqyyj'q CG. 6. )~ 6. S.A. Bhagat, son of not known, working ia. the Department of Pollce, State of Chhattisgarh, posted as Station House Officer, Police Station Ramanujnagar on 28.12.2003. through the g.P., District Sarguia. ^^7. Rajlal Rajwade, son of not known, resident of Village Surtapudi. Dis-1^-- 3a.y' ^' "Ml 3? ^S^^^^^I ^ ' ""/• WRir PBTITIOM UITDBR ARTICLES 336 & 327 OF THB CONSTITUTION OF INTOA FOR ISSUANCE OF AB APPROPRIATE WRIT IS THB KATURE OF MANDAMVS /CERTIORARI ETC OR DIRECTION (S) / ORDER(S1 ITS THB LIKB NATURE BTC. £^ HIGH COURT OF CHHAmS6ARH AT BILASPUR W.P. No.l607of 2006 PETCTIONERS Mohd. Riyaz Khan & others Versus RESPONDENTS State of Chhattisgarh and others POSTFOR OROER ON 1^-6-2008 Sd/- Dhirendra Mishara Judge ®i HIGH COURT OF CHHATTISGARH AT BILASPUR PETTTEONERS RESPONDENTS W.P.No.l607of 2006 Vs 1. 2. 3. 4. 5. 6. 7. 8. Mohd. Riyaz Khan, son of Late Mphd. Sakoor Khan, aged about 62 years, Occupation-Cattle Trader, resident of Manpur, Tehsil & P.S. Surajpur, District Ambikapur (C.6.) Mohd. Irfan Khan, son of Majubullah Khan, aged about 25 years, resident of Village Kotmi, P.S. Pendra, District Bilaspur (C.6.) 6hanshyam,son of Jhannulal, aged about 35 years, resident of Muwarpara, Marwahi, Tehsil Sor-ella, Distr-ict Bilaspur (C.6.) Mobil Khan, son of Motiz Khan, aged about 24 years, resident of Pendra, District Bilaspur(C.6.) Shakil Khan, son of Motiz Khan, aged about 28 years, resident of Pendra, &istrict Bilaspur (C.6.) Ansar Khan, son of Akhtar Khan, aged about 32 years, resident of Village Jashimod, P.S. Bhatgaon, Tehsil Surajpur, District Sarguja. Tanveer Khan, son of Motiz Khan, aged about 26 years, r-esident of Pendra, bistrict Bilaspur (C.6.) Ibrar Khan, sori of Basheer Khan, aged about 55 years, resident of Village Jashimod, P.S. Bhatgaon, Tehsil Surajpur, t3istrict Sarguja. 1. State of Chhattisgarh, through the Secretar'y, Ministry of Home, D.K.S. Bhawan, Raipur. 2. The Collectror, Sarguja. 3. The Sub Divisional Officer, District Sarguja. 4. The Superintendent of Police, District Sarguja. 5. The Station House Officer, Police Station Ramanujnagar, bistt. Sarguja (C6) 6. S.A. Bhagat, son of not known, working in the Department of Police, State of Chhattisgarh, posted as Station House Officer, Police Station Ramanujnagar on 28.12.2003, through the S.P., District Sarguja. 7. Rajlal Rajwade, son of not known, resident of Village Surtapudi, Distt. Sarguja (C6) Present: Mr. V.C. Ottalwar, Mr. Rajeev Shrivastava <& Mr. I.S. Sahu, Advocates for the petitioners. Mr. Vinay Harit, Deputy Government for respondent No.l to 5. Miss Sharmila Singhai, Advocate for respondent No.7. Mr. H.B. Agarwal, Sr. Advocate with Mr. Parag Kotecha, Advocate for Intervener-Ramnandan Singh. O R b ER (Passed on i3-.6.2008) Per bhirendra Mishra, J; 1. Briefly stated the case of the petitioners is that they earned their livelihood through cattle trading. They used to purchase cattle from various cattle markets to sell them at weekly market Surajpur. The petitioners purchased 255 oxen from the various weekly cattle markets in the month of December, 2003 and proceeded for Village Maanpur with the purchased oxen. They stayed at Village Mohanpur in the intervening night of 28th <& 29th of December, 2003. Atabout 1.00 a.m., mob of 250 to260 persons under the leadership of respondent No.7 and also accompanied by respondent N0.6-S.H.O. of Police Station Ramanujnagar, reached there and charged the petitioners that they were taking the cattle for the purposes of slaughtering. The above persons were claiming that they are members of the ruling political party of the State and they shall not allow slaughtering of animals as it is an offence: The petitioners denied that the cattle were being taken for slaughtering and pleaded that they we.re taking the cattle to weekly market for sale as the same would be used for agricultural purposes. However, their pleadings and denial went in vain and they were taken to the police station Ramanujnagar by respondent No.6 where they were illegally detained till 3.1.2004. However, they were released by the police on 3.1.2004 as after inquiry no evidence of any offence could be gathered against them. However, cattle belongina to ithe petitioners were taken by the villagers with the active connivance of respondent No.6 <& 7. 2. The petitioners moved an application for interim custody of cattle before the Judicial Magistrate 1s Class, Surajpur, however, their application was rejected on th& ground that the police has not seized the animals. The petitioners moved another application before the Sub Divisional Magistrate, Surajpur for permission to sell their animals. After registering the application as Case No.141/04, report was called from the Station 1-louse Officer, Police Station Ramanujnagar vide order dated 4.2.2004 (Annexure P-2). Thereafter, the matter was referred by the S.D.M., Surajpur to the District Magistrate, who vide order dated 28.4.2004 (Annexure P-3) granted permission to the petitioners for selling the animals with the condition that the animals shall be sold within the Sarguja bistrict and the list of the persons to whom the animals are sold would be submitted with the S.D.0. On the basis of order passed by the District Magistrate, Surajpur the S.D.0. granted permission to the petitioners for selljng the cattle. 3. Respondent No.7 vide his application dated 5.10.2004 requested the S.D.0. to review the order granting permission to sell. On the application of respondent No.7, a report was called from the Police Station Ramanujnagar and thereafter, his application for review was rejected on 25.1.2005. It was also observed that after enquiry it was found that the petitioners have not committed any offence and they are entitled to sell the animals. Even after direction by the S.0.0., the S.H.O., Police Station Ramanujnagar did not restore the cattle to the petitioners nor he took any action against respondent No.7 and other villagers who have retained^ the animals belonging to the petitioners. 4. The Station House Officer, Police Station Ramanujnagar addressed a memo dated 6.10.2004 to the S.D.0., Surajpur mentioning therein that in compliance of the order of the district Magistrate dated 28.4.2004 (Annexure P-3) proceeding for restoring the animals to their owners was initiated, however, on account of interference of the members of 'Vishwa Hindu Parishad' and workers of the ruling party there is delay in compliance of the order. It was further mentioned that no evidence has been so far gathered for any offence under the Prevention of Cruelty to Animals Act, 1960 (for short 'the Act'). The cattle have been seized and misappropriated by the villagers, who are 130 in numbers, and they have distributed the animals amongst them. The Station House Officer, Police Station Ramanujnagar in his report dated 10.5.2004 also apprised the District Magistrate that the petitioners were taking 255 numbers of oxen towards Gadwa for sale after legally purchasing the same. However, animals belonging to the petitioners were seized by the villagers under the leadership of Rajlal Rajwade, who distributed the same amongst themselves. The investigation is going on. 5. Grievance of the petitioners is that the animals belonging to them were illegally looted by certain persons under the leadership of respondent No.7 with the active connivance of respondent No.6. Since the perpetrators of illegal act belong to the ruling party and they enjoy patronage of influential persons of the district, therefore, no action has been taken against them and the petitioners have been deprived of their fundamental rights. 6. Respondent No.l to 5 in their joint reply have averred that on the basis of complaint of respondent No.7 that the petitioners are taking cattle for slaughtering, offence under Section 11 (1) of the Act was registered against the petitioners, however, after investigation into the matter the police .found that the petitioners have not committed any offence. Some of the animals, which were duly identified by the petitioners, have been restored to them. Since the petitioners were not able to identify other animals, the same could not be handed over to them. The fact that the petitioners purchased the animals, as detailed in Para 5.2 of the petition and the fact that the police did not seize the animals has also not been disputed. 7. After the above reply was filed by the respondent State, this Court vide order dated 18.9.2007 directed the learned counsel for respondent No.l to 5 to seek instructions as to why all the cattle, numbering 255, have not restored to the petitioners when it has been found that the cattle were purchased for the agricultural purposes and the petitioners were taking them to Surajpur for sale. Respondents were further allowed a week's time to comply with the order dated 18.9.07. On 15.10.2007 on the request of learned counsel appearing for the State further four weeks' time was granted to take appropriate action and submit appropriate affidavit. On 16.11.2007 at the request of learned counsel appearing for respondent No.l to 5, as a last opportunity, four weeks' time was granted to comply with the order dated 18.9.07. Oespite several opportunities granted to the respondent State authorities for complying the order dated 18.9.07, the same was not complied with till 17.12.07 and further time was prayed for seeking instructions and filing affidavit. Prayer was allowed and two weeks' time was granted on payment of cost of Rs.5,000/- recoverable from the Superintendent of Police, Surajpur. 8. Respondent No.7 in its separate counter affidavit has admitted that he lodged the report with the police on 30.12.2003 mentioning that the petitioners were taking 276 animals for the purpose of slaughtering, upon which an offence under Section 11 (1) (a) of the Act was registered. Their application for interim custody was rejected by the Judicial Magistrate videorder dated 3.1.2004 (Annexure R7/1). It has been further averred that the S.H.O., Police Station Ramanujnagar issued a memo dated 5.11.2007 directing that the animals be handed over to the petitioners within two weeks' as per direction of the bistrict Magistrate. In detailed reply (Annexure R7-3) to this memo, the respondent No.7 claimed that the animals in question belong to some other persons. The petitioners are residents of Village Surta. They were sending the cattle to slaughter house through their relatives. Petitioner No.l-Riyaz Khan forcibly tried to loot the cattle from the villagers, which was duly reported to the police and offence was registered. The petitioners have alleged that the mob has looted the cattle under the leadership of the answering respondent, however, they failed to lodge any report in the police. There is no evidence that the petitioners are the owners of the cattle. Disputed facts are involved in the petition and that cannot be gone into a writ petition under Article 226/227 of the Constitution of India. The petitioners were taking the cattle to the slaughter- house and therefore, villagers restrained them out of religious sentiments and the cattle were distributed amongst the villagers for their security. The averment that the petitioners' purchased 255 oxen from the weekly markets in the month of December, 2003 has been denied. 9. In compliance of the arder dated 17.12.2007 an affidavit dated 3.1.2008 was filed on behalf of the respondent No.l to 5 wherein it has been mentioned that they tried to find out the cattle from the village-rs to restore the possession of the same to the petitioners, however, they met with stiff resistance from the villagers, who disputed the ownership of the petitioners over the cattle. It has been further stated that despite resistance offered by the villagers, they could manage to locate and seize 165 numbers of cattle from the village and deposited the same at the Saushala situated in the Village Chaitarma of bistrict Surajpur. The petitioner No.l was noticed about the above fact, however, petitioner No.l avoided service of notice. It has been further mentioned that (Saushala management is charging a sum of Rs.50/- per day per cattle as cost of feeding and upkeep of the cattle. Besides 165 cattle which we.re. seized, 65 bullocks as well 13 cows are reported dead by the villagers, who have also submitted documentary proof in support of their claim. 9 numbers of cattle have been forcibly taken by the petitioners. 10. In the meanwhile, application dated 14.1.2008 for permission to intervene in the petition was filed by one Ramanand Singh of Village Surata. The matter was taken up on 14.1.2008 and after considering the written submissions of the State in compliance of the order dated 17.12.2007 and facts mentioned in the application for permission to intervene, the respondents were further directed to file affidavit detailing the villagers from whose custody the cattle were seized and reported dead. Necessary information were furnished by respondent No.l to 5 on 18.1.2008, 25.1.2008, 18.3.2008 <& 30.3.2008 in compliance of various orders passed by this Court. ll.AAiss Kajal Misra, Advocate was appointed as 'Amicus Curiae' to assist the Court, who has also submittedher written note dated 4.3.2008. 12.0n basis of the pleadings of the respective parties, documents and reports submitted on behalf of respondent No.l to 5 in compliance of direction of this Court, the undisputed facts may be summarized as under:- • The petitioners are engaged in the occupation of cattle trading to earn their livelihood. They individually purchased cattle in the month of December, 2003 aggregating 255 in number, as detailed in Para 5.2 of the ^ ..I " •s ^S^gg®!^ petition. S.H.O., Police Station Ramanujnagar also accompanied them. • In the intervening night of 28 <& 29th of becember, 2003 at about 1.00 a.m. large number of villagers under the leadership of respondent No.7 reached Village Mohanpur where the petitioners were staying along with their cattle. • Offence under Section 11 (1) of the Act was registered on the complaint of respondent No.7 and respondent No.6 took the petitioners to police station and detained them there till 3.1.2004. • After release when the petitioners did not find their cattle at the place where they had left it, they moved an application for suprudnama before the Judicial Magistrate 1s Class, Ramanujnagar, however, their application was rejected with an observation that the cattle has not been seized by the police. • On 4.2.2004 the petitioners applied before the Sub Divisional Officer,Surajpur for permission to sell their cattle. On the application of the petitioners, report was called from the S.H.O., Police Station Ramanujnagar. • Shivnath Rajwade submitted his objection against the application of the petitioners. • The S.D.0. referred the matter to the District Magistrate, Ambikapur, who vide order dated 28.4.2004 (Annexure P-3) considering the report of the S.H.O., Police Station Ramanujnagar observed that the cattle was legally purchased by the petitioners, the same were brought to the Surajpur tehsil for the purpose of sale, purchases have been duly verified from Pendra, cattle have been detained by the villagers for their security <& upkeep and therefore, there may be no objection if the •Si/ <"-'~"SSS l<si! :"•& '^ L.i ^^'•^:&^ ""as^ L'J petitioners are permitted to sell the cattle within Surajpur tehsil. • Thereafter, the S.b.0. vide order dated 5.5.2004 granted permission. • The S.H.O., Police Station Ramanujnagar in response to the memo dated 5.10.2004 of the S.D.0. submitted his report in relation to objections of Rajlal Rajwade and submitted that in compliance of the orders passed by the &istrict Magistrate & S.D.0., they commenced the action of restoring animals from the villagers to the petitioners and the villagers were ready to return the cattle. However, because of intervention by certain leaders of Vishwa Hindu Parishad and local workers of the ruling political party, there is delay in compliance. • On medical examination the cattle were found healthy and fit for agricultural purposes and there is no evidence of any offence under the Act. Objectors, who are 130 in number, have impounded all the cattle and distributed amongst themselves. Thus, there is clear injustice to the owners of the cattle. • S.H.O., Police Station Ramanujnagar in his separate report dated 10.5.2004 to the District Magistrate, Sarguja has named some of the villagers who have kept the cattle belonging to the petitioners. • Nine numbersof cattle were restored to the petitioners from the villagers with the intervention of the police. • Respondent No.7 vide his application dated 30.12.2003 addressed to the S.H.O., Police Station Ramanujnagar alleged that the petitioners were taking 276 number of cattle to slaughter house. The villagers distributed the above cattle amongst themselves for their safety and up- keep and they shall abide by any decision of the Court. 10 Report of Annexure R-3 was registered on the basis of above complaint. The above fact has also been admitted by the respondent No.7 in his return. • When the animals could not be restored to the petitioners the instant petition was filed by the petitioners on 28.3.2006. • Considering the reply of the respondent No.l to 5, this Court vide order dated 18.9.2007 enquired from the respondent No.l to 5 as to why the animals belonging to the petitioners have not been restored when the same were being taken to Surajpur for sale for agricultural purposes. • After taking various adjournments for complying with the above order, an affidavit was filed by respondent No.l to 5 on 3.1.2008 mentioning therein that during the course of restoration of possession of the cattle they metwith stiff resistance from the villagers, the petitioners also did not extend assistance to the authorities, however, they could manage to locate and seize 165 numbers of oxen from the various villagers, which they have deposited in Chaitarma Gaushala of Surajpur district. The petitioners were informed about the above seizure, however, they avoided service of notice, which was served to them by affixing the same in their respective houses. It was also stated that Guashala is charging Rs.50/- per animal per day for their maintenance. It was also submitted that besides above 165 oxen, 65 bullocks and 13 cows have been reported dead by the villagers, who have also submitted documentary proof of their claim. Nine numbers of oxen have been reported to be taken away by pefitioner No.l <& seven number of oxen were returned to them earlier. 11 • One Ramnandin Singhof Village Surta in his intervention application has also admitted that the villagers had bonafidely taken the cattle with them for saving their lives from the petitioners and till date they are maintaining the cattle. The petitioners are not the cattle traders, they were taking the cattle for slaughtering and due to religious belief the villagers restrained the petitioners and distributed the cattle amongst them. • In compliance of the direction of this Court, respondent No.l to 5 have also submitted a report dated 18.1.2008in which95 villagers have been named from whose custody 1 or 2 oxen were recovered on 28th, 29th & 30th of December, 2007. All the cattle were deposited in the gaushala. Report also contains examination report of cattle given by the veterinary doctor. Report also contains names of 54 villagers in whose custody 65 oxen were reported dead on various dates. Report also includes panchnama of the dead animals. It also mentions that the same were received by them on interim custody. Annexure Rl-15 filed with the report is list of 12 oxen and 4 cows returned to the petitioners by the villagers with the intervention of the police. Whereas, Annexure Rl-16 is the list of 22 animals which died in Chaitarma fiaushala. • The petitioner in response dated 28.1.2008 to the above reports dated 17.1.2008 & 25.1.2008 of the respondent No.l to 5 has denied that he received any notice from the authorities for taking possession of 164 number of animats. Medical certificates of the animals are forged certificates and the same have been prepared just to complete formalities. Bulls belonging to the petitioners were purchased for agricultural purposes with an average age of 5 years. The petitioners were deprived of the user of abovecattle for the last five years i.e. the pn'me 12 period uvhen they are useful for agricultural purposes and with the passage of time the cattle of the petitioners have lost their optimum utility and their market value had reduced. • Learned Amicus Curiae after careful examination of documents has noted that the medical certificates issued by the veterinary doctor prima-facie appears to be not genuine and the same have been prepared to complete formalities and it appears to be forged certificates. Report also underlines illegality of seizure and it pinpoints that the police authorities did not make any effort to trace the cattle of the petitioners and after registering the offence no investigation was commenced and no charge sheet was submitted. • As per affidavit of the Collector, Sarguja dated 19.3.2008, the Deputy Director, Veterinary Services, Sarguja, formed a committee of three veterinary doctors. Members of the committee examined the surviving animals, 86 in number, in Chaitarma Saushala and submitted report along with assessed value of each animal. They had submitted their report on 11.3.2008 (Annexure Rl-25) and reported that only 86 animals valued at Rs.2,21,300/- approximately were impounded in the gaushala, whereas, 79 number of animals uvere reported dead while they were deposited in the gaushala. The Deputy Director vide his report dated 16.3.2008 based on the report of the committee has valued the cost of the surviving animals at Rs.2,21,300/- and cost of dead animals at Rs.2,05,400/-@ Rs.2,600/- per animal. • As per report the above valuation is based on the prevailing market value and government rates as per order dated 6.11.2007 (Annexure Rl-24) issued by the Directorate of Veterinary Services. 13 13. Learned counsel for the petitioners submits that from perusal of the undisputed facts of the case it would be evident that the petitioners were illegally detained in the police station from 29.12.2003 to 3.1.2004 on the basis of falsecomplaint of respondent No.7. The cattle belonging to the petitioners were looted by the villagers under the leadership of respondent No.7 with the active connivance of respondent No.6. While the petitioners were illegally detained in the police station no seizure of the cattle was effected after registering the offence under the Act, on the contrary, the villagers were facilitated by respondent No.6 in taking the animals of the petitioners. The police could not collect any evidence against the petitioners that they purchased the animals for taking them to the slaughter house or they treated the animals purchased by them with cruelty. Considering that there was no evidence of anycriminal offence under the Act, the District Magistrate accorded permission to the petitioners to sell their cattle in Surajpur tehsil and directions we.re. given to the S.H.O. in this regard. However, the directions of the District Magistrate and the S.D.0. were deliberately not complied with by the police authorities as respondent No.7 and his follower villagers continued to retain illegal possession of the cattle of the petitioners and the police authorities/ district administration did not take any action against