Calcutta High CourtEmpire Circus vs The State Of West Bengal & Ors on 28 January, 2011Author:Pratap Kumar RayBench:Pratap Kumar RayGA No.211 of 2011
                               APOT No.31 of 2011
                               WP No.1610 of 2010
                         IN THE HIGH COURT AT CALCUTTA
                         Civil Appellate Jurisdiction
                                  ORIGINAL SIDE


                                 EMPIRE CIRCUS
                                     Versus
                        THE STATE OF WEST BENGAL & ORS.

      BEFORE:
      The Hon'ble JUSTICE PRATAP KUMAR RAY
      The Hon'ble JUSTICE DR.MRINAL KANTI CHAUDHURI
      Date : 28th January, 2011.

                                         Appearance :-
                                         Mr.M.Verma, Adv.,
                                         for the appellant.

                                         Mr.Sushovan Sengupta, Adv.,
                                         Ms.Era Ghose, Adv.,
                                         for the KMC.

                                         Mr.Ashim Kumar Chatterjee, Adv.,
                                         Mr.Mihir Kundu, Adv.,
                                         for the State.

                                         Mr.A.K. Banerjee, Sr. Adv.,
                                         Mr.S.Panja, Adv.,
                                         Mr.Amal Krishna Saha, Adv.,
                                         Mr.J. Pandit, Adv., for the respondentno.5.The Court : For effective adjudication of the matter we

are   of   the   view   that    the   parties     should      exchange    their

affidavits.      Let there be an affidavit-in-opposition by three

days from date; reply, if any, be filed within two days

thereafter.       The   matter    will    appear    in    the   list     on   2nd

February, 2011 as fixed item at the top.Since the opposition to the writ application was not

filed, leave is granted to file the opposition to the writ2application by three days from date; reply, if any, be filed

two days thereafter.A     serious    question     has       been    raised   in    the     appeal

touching    the     applicability    thePrevention      of   Cruelty    to

Animals Act, 1960and the rules thereof.                 UnderSection 22it

appears that nobody is entitled to exhibit any performing

animals    unless     it   is   registered         in   accordance    with    the

provisions of this Chapter.         TheSection 22reads such.

    UnderSection 26exhibition of any performing animals

without any registration is an offence."26. Offences.- If any person -(a) ***            ***                  ***                      ***

    (b) ***            ***                  ***                      ***

    (c) ***            ***                  ***                      ***

    (d) ***            ***                  ***                      ***

    (e) ***            ***                  ***                      ***

    (f) ***            ***                  ***                      ***

    (g) ***            ***                  ***                      ***he shall be punishable on conviction with fine which may

extend to five hundred rupees, or with imprisonment which may

extend to three months, or with both."The Performing Animal (Registration) Rules, 2001 also

provides that application for registration to be made and

proper registration certificate should be available under a3prescribed format under Rule 6.          The Rule 3 further provides

that    no   person   shall   exhibit   any    animal   as   a    performing

animal without being registered under the Rules.                   It is an

admitted position as it appears from the submission of the

learned Advocate appearing for the private respondent no.5

that as yet no registration under the said Act has been

allowed save and except that the respondent no.5 has filed an

application long back in 2006 and an enquiry has been made.

Since the set out provides that without any registration,

there is total embargo of exhibition with penal consequences.

We are of the view that there was no necessity to inform the

applicants to exhibit the circus by performing animals about

the fact of registration under the said Act and the Rules by

the    Calcutta   Municipal     Corporation.       It   is    an    explicit

condition that when somebody will exhibit any circus show by

performing     animals,   the   owner   must    register     it    under   thePrevention of Cruelty to Animals Act, 1960.                Even if in the

application inviting to submit the respective tenders by the

Calcutta Municipal Corporation did not specify such, it was

not the duty upon the Calcutta Municipal Corporation also to

select a candidate who satisfy the registration clause under

the said Act.     Unfortunately it was not done.UnderSection 25of the saidPrevention of Cruelty to

Animals Act, 1960a police officer not below the rank of sub-4inspector is legally entitled to the enter into the premises

for necessary verification that the exhibition of performing

animals being done on proper certificate and registration

under thePrevention of Cruelty to Animals Act, 1960.                        Since

on    breach    of   the    said    Act       and    the   Rules   thereof    the

respondent no.5 is exhibiting animal performance, the said

respondent      no.5   is     restrained            from   exhibiting   animals

performance in the circus.The respondent Police Commissioner is directed to make

necessary inspection of the concerned premises wherein the

respondent no.5 has set up his circus camp and also take

appropriate step in accordance with underSection 25of the

Prevention of Cruelty to Animals Act, 1960.                        This interim

order will continue for two weeks with liberty to pray for

vacating, variation and/or modification of the interim order.

Both the respondent corporation and the Police Commissioner

are directed that the order of the Court is complied with by

the private respondent no.5.Learned Advocate for the corporation submits that the

writ petition was moved belatedly and as such it was not

maintainable.        It appears that the respondent no.5 started

exhibition of circus with effect from 19th December, 2010 and

the   writ     application    was   moved       as     submitted   by   Mr.Verma

appearing for the appellant on 16th December, 2010.                     Even if5it is assumed for argument that the writ petitioner caused

delay, still then as the question relates to protection of

animals under the concerned Act wherein there is a total

embargo of exhibition of the performing animals without any

registration by the competent authority, we are of the view

that   the   writ   application       was   maintainable   and   the

contentions of the learned Advocate for the Corporation stand

rejected.All parties concerned are to act on a signed xerox copy

of this order on the usual undertakings.(PRATAP KUMAR RAY, J.)



                           (DR. MRINAL KANTI CHAUDHURI, J.)


sd/