Madras High Court
K.S.Anandamani vs The Government Of India on 5 August, 2022
W.P.No.34246 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.SOUNTHAR
W.P.No.34246 of 2013
and M.P.Nos.2 and 3 of 2013
K.S.Anandamani .. Petitioner
Vs.
1.The Government of India,
Rep by the Secretary to Government,
Ministry of Environment and Forests,
Paryavaran Bhavan,
CGO Complex,
Lodhi Road,
New Delhi – 110 003.
2.The Inspector General of Forests,
(Project Elephant Division),
Department of Environment and Forests,
Paryavaran Bhavan,
CGO Complex,
Lodhi Road,
New Delhi – 110 003.
3.The Principal Chief Conservator of Forests
and Chief Wildlife Warden,
Panagal Maaligai,
Saidapet,
Chennai – 600 015.
4.The Divisional Forest Officer,
Palakkad Division,
Kallekulangara – 678 009,
Kerala State.
...Respondents
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W.P.No.34246 of 2013
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Certiorarified Mandamus, calling for the records
relating to the impugned memorandum in F.No.2-31/2013-PE, dated
07.11.2013 issued by the 2nd respondent and the consequential order made in
Ref.No.WL1/45372/2013, dated 12.12.2013 issued by the 3rd respondent
quash the same and consequently direct the respondents to issue No
Objection Certificate for transporting the petitioner's elephant under the valid
ownership certificate for the participation in the temple functions in the State
of Tamil Nadu for the period between 16.12.2013 and 15.01.2014 by
considering the 4th respondent's proceeding dated 28.11.2013.
For Petitioner : Mr.N.Manokaran
For Respondents :Mr.P.Sanjay Gandhi
Government Advocate
for R3
Mr.M.Hidayathullkhan
Government Advocate (Forest)
for R1, R2 and R4
******
ORDER
The petitioner herein filed the above writ petition challenging the order passed by the second respondent dated 07.11.2013, where under the request of the petitioner for transportation of elephant under valid ownership certificate for participation in temple festival in the State of Tamil Nadu for a period between 16.12.2013 and 15.01.2014, was rejected.
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2.According to the writ petitioner, he is the owner of the elephant and he possessed valid ownership certificate issued under Section 42 of Wild Life (Protection) Act.
3.The learned counsel for the petitioner submits that the petitioner submitted an application before the 4th respondent for transportation of his animal, viz., elephant, from Kerala to Tamil Nadu. The 4th respondent, in turn, forwarded the application to the 3rd respondent and he passed the impugned order dated 12.12.2013 rejecting the application, by relying on the order passed by the Inspector General of Forest, dated 07.11.2013.
According to the petitioner under Section 43 of Wild Life Protection Act, the transportation of elephant from one State to other State is permitted under the sanction from the Principal Chief Conservator of Forests cum Chief Wildlife Warden from the concerned State. He also relied on the decision of a Division Bench of the Kerala High Court dated 31.03.2015, passed in W.A.No.1650 of 2014.
4. Mr.P.Sanjay Gandhi, learned Government Advocate appearing for the 3rd respondent submitted that the period for which the Page 3 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 transportation of the elephant was sought for is already over. If any fresh application is filed by the writ petitioner, it will be considered in the light of the relevant provisions of law. He also brought to the notice of this Court the order dated 19.01.2022, passed in W.P.No.34258 of 2013 etc., batch, wherein, in a similar situation, this Court directed the writ petitioner therein to submit an application in prescribed format and consequently, directed the authorities concerned to consider the request for transportation in the light of relevant provisions of law. He also circulated the letter dated 16.06.2022 in C.No.WL1/6965/2022 from Principal Chief Conservator of Forests and Chief Wildlife Warden, Chennai (3rd respondent herein) addressed to the Chief Wildlife Warden, Tiruvananthapuram, wherein, certain conditions for granting permission for transportation was laid and the same is extracted below.
(i) The Principal Chief Conservator of Forests and Chief Wildlife Warden, Kerala shall please ensure that the ownership certificate has been issued under Declaration of Wildlife Stock Rules, 2003 (SO 445 (E), dated 18.04.2003) and relevant provisions of the Wildlife (Protection) Act 1972;
(ii) The owner or the authorised agent should produce the original ownership certificates and microchip Page 4 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 implantation certificate for verification before the Principal Chief Conservator of Forests and Chief Wildlife Warden, Kerala;
(iii) It should be verified from the records that the elephant is not covered in the list of 289 captive elephants mentioned in G.O.(RT).No.84/2016/F&LD, dated 26.02.2016 and as available with the Hon'ble Supreme Court of India in I.A.No.25 and 27 of 2016 in WP(C).No.743 of 2014, dated 04.05.2016;
(iv) Transit permit should mention the name of the Mahout and Cavady along with passport size photo duly attested by the competent authority.
B. The following conditions should also be strictly adhered to:
1. All the conditions specified in the Wildlife (Protection) Act 1972 and rules therein, the prevention of cruelty Animal to Act 1960, performing Animals (Registration) Rule 2001 and the Tamil Nadu Captive elephant (Management and Maintenance) Rule 2011 should be complied with.
2. Shortest route should be prescribed with approximate journey time as in permit (Form II);Page 5 of 16
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3. The Elephant should not be taken to crowded and inhabited area;
4. The Elephant should not be used for begging;
5. The Elephant should not be used for Cross breeding;
6. The temple authority to provide adequate security to avoid people disbursing the elephant during rest at the shelter;
7. The animals should not be engaged in any activities between 9 a.m. To 4 p.m;
8. The animals should be given adequate rest before the function;
9. The animals should be fed and watered well before the procession;
10. The organizers are advised to make necessary arrangements to procure green fodder in advance to avoid last minute hiccups;
11. During the procession if the animal shows any signs of fear, aggression, uneasiness, any health issue, loss of control by elephant men etc., then the animal must be withdrawn from the procession immediately;
12. No loud noise, crackers, fireworks, bright focusing lights should be used;
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13. People feeding or touching the animal should not be allowed;
14. 3 mts square area around the animal should be cordoned off for security purpose;
15. No fire cracker should be used when elephant is engaged in “Pooja”;
16. The elephant should be taken back to kerala in time;
17. Proper entry must be made in the forest check post register while crossing the border;
18. Qualified Veterinary Officer should be available to take care of the elephant in case of any exigency;
19. The elephant owner and temple authority shall ensure sufficient water sprinkled on the body of the elephant every two or three hours and drinking water is provided in time;
20. The shifting of elephant is during peak summer the elephant owner and temple authority shall ensure sufficient water is sprinkled on the body of the elephant every two or three hour and drinking water is provided in time;
21. Complying with all Rule and Regulations imposed by Government of India and State Government in view of the COVID -19.” Page 7 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013
5. The Wild Life (Protection) Act 1972, (hereinafter called WLP Act) was passed with an object of arresting rapid decline of India's Wild Animals and Birds, inter alia, it also seeks to regulate transportation of wild animals. The Section 40, 42 and 43 of WLP Act, read as follows:
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, 2 [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) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or 420 otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden Page 8 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 or the authorised officer.
[(2-A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wild Life (Protection) Amendment Act, 2002 (16 of 2003) acquire, receive, keep 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, except by way of inheritance.
(2-B) Every person 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 or the authorised officer and the provisions of sections 41 and 42 shall apply as if the declaration had been made under sub-section (1) of section 40: Provided that nothing in sub-sections (2A) and (2B) shall apply to the live elephant.] [(3) Nothing in sub-section (1) or sub-section (2) shall apply to a recognised zoo subject to the provisions of section 38-I or to a public museum.] (4) The State Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer 5 [any animal or animal article] or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, Page 9 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 custody or possession in such form, in such manner, and within such time, as may be prescribed. .............
42. Certificate of ownership.—The Chief Wild Life Warden may, for the purposes of section 40, issue a certificate of ownership in such form, as may be prescribed to any person who, in his opinion, is in lawful possession of any wild animal or any animal article, trophy, uncured trophy and may, where possible, mark, in the prescribed manner, such animal article, trophy or uncured trophy for purposes of identification.
2 [Provided that before issuing the certificate of ownership in respect of any captive animal, the Chief Wild Life Warden shall ensure that the applicant has adequate facilities for housing, maintenance and upkeep of the animal.] [43. Regulation of transfer of animal, etc.—(1) No person having in his possession captive animal, animal article, trophy or uncured trophy in respect of which he has a certificate of ownership shall transfer by way of sale or offer for sale or by any other mode of consideration of commercial nature, such animal or article or trophy or uncured trophy.
(2) Where a person transfers or transports from the State in which he resides to another State or acquires by transfer from outside the State, any such animal, animal Page 10 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 article, trophy or uncured trophy in respect of which he has a certificate of ownership, he shall, within thirty days of the transfer or transport, report the transfer or transport to the Chief Wild Life Warden or the authorised officer within whose jurisdiction the transfer or transport is effected.
(3) Nothing in this section shall apply—
(a) to tail feather of peacock and the animal article or trophies made therefrom;
(b) to transfer of captive animals between recognised zoos subject to the provisions of section 38-I, and transfer amongst zoos and public museums.]
6. A cursory look at the provision makes it clear that the transportation of elephant by a person who hold the ownership certificate is permitted under law, however the only condition imposed is he has to get necessary permission from the Chief Wild Life Warden, by reporting transportation to him. Therefore, the transportation of the elephant from one State to other State is not totally prohibited, but it is permissible by satisfying the conditions mentioned in Section 42 of Wild Life (Protection) Act. The above said question came up for consideration before Kerala High Court in the Principal Chief Conservator of Forests (The Chief Wildlife Warden), Forest Headquarters Vazhuthacaud, Thiruvananthapuram Vs. The Secretary, Page 11 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 Paramekkavu Devaswom, Geethanjali, Paramekkavu Devaswom Building, Round East, Thrissur, reported in MANU/KE/0396/2015, wherein Division Bench of Kerala High Court held as follows:
Section 40(2), which provides that no person, after the commencement of the Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or transport any animal, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer, has to be read along with the provision contained in Section 43(1). In the event Section 40(2) is read to mean that only by having permission of the Chief Wild Life Warden sale is permissible, the same is directly in conflict with the purpose and object by which Section 43(1) was inserted by Amendment Act 16 of 2003. Section 40(2), thus, shall be applicable only in those transfers, which are not hit by Section 43(1). Thus, permission is required from the Chief Wild Life Warden for acquisition transfer or transport of any animal. The Chief Wild Life Warden, if he finds that permission is for sale or offer to sell or transaction of commercial nature, he has to reject the application in view of the law as inserted by Section 43 (1). But in cases where the transfer is not hit by Section 43(1), permission can be granted by the Chief Wild Life Warden.Page 12 of 16
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7. This Court is in agreement with the view taken by the Kerala High Court. The prohibition contained under Section 43(1) of Wild Life Protection Act only prohibits transfer of captive animal, animal articles, trophy or uncured trophy for commercial purpose. In the case on hand, the petitioner seeks permission for transportation of elephants only for participation in religious or temple function that too for a limited period. The harmonious reading of Section 40(2) and Section 43(2) of Wild Life Protection Act, makes it clear that transportation of elephant from one State to another State with the permission of Chief Wild Life Warden in writing is permissible.
8. In the letter dated 16.06.2022, in C.No.WL1/6965/2022 of 3rd respondent addressed to Chief Wildlife Warden, Tiruvananthapuram, circulated by the learned Government Advocate, “No Objection Certificate” was issued for transportation of one male elephant owned by a person belong to Palakkad, Kerala to Thiruvennainallur Meykandare Thirukoil, Villupuram District, Tamil Nadu, subject to certain conditions mentioned therein. In the light of the said letter, there may not be any impediment for the 3 rd respondent/Chief Wild Life Warden to consider issuance of no objection Page 13 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 certificate for similar request of transporting elephant from Kerala to Tamil Nadu for participation in temple or religious function for limited period.
9. As far as this writ petition is concerned, the period for which the transport was sought for by the writ petitioner is already over. Therefore, the writ petitioner is directed to submit a fresh application to the authorities concerned for getting permission under Section 43 of Wild Life (Protection) Act and if any such application is submitted by the petitioner in prescribed format, the 3rd respondent is directed to consider the same in the light of Section 40(2) r/w 43(2) of Wild Life (Protection) Act and dispose of the same within a reasonable time.
10. This writ petition is disposed of accordingly. Consequently, connected miscellaneous petitions are closed. No costs.
05.08.2022 (3/4) Index :Yes/No Internet:Yes/No Speaking/Non speaking order ub Page 14 of 16 https://www.mhc.tn.gov.in/judis W.P.No.34246 of 2013 To
1.The Government of India, Rep by the Secretary to Government, Ministry of Environment and Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi – 110 003.
2.The Inspector General of Forests, (Project Elephant Division), Department of Environment and Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi – 110 003.
3.The Principal Chief Conservator of Forests and Chief Wildlife Warden, Panagal Maaligai, Saidapet, Chennai – 600 015.
4.The Divisional Forest Officer, Palakkad Division, Kallekulangara – 678 009, Kerala State.
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