Madras High Court
S.Mohammed Yosuf vs The Principal Chief Conservator Of on 7 December, 2018
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.12.2018
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
W.P.(MD).23608 of 2018
and
W.M.P.(MD)No.21396 of 2018
S.Mohammed Yosuf ... Petitioner
Vs.
1.The Principal Chief Conservator of
Forests (wildlife) and Chief Wildlife),
Warden- Karnataka State,
Bangalore, Karnataka State.
2.The Principal Chief Conservator of Forests,
Panagal Buildings,
Saidapet, Chennai.
3.The Additional Principal Chief Conservator of
Forests – Madurai Range,
K.K.Nagar, Madurai-625 020.
4.The Chief Conservator of Forests,
Virudhunagar Circle, Virudhunagar,
Virudhunagar District.
5.The Wild Life Warden,
Grizzled Squirrel Wild Life Santuary,
Srivilliputhur, Virudhunagar District.
6.The Assistant Commissioner,
HR & CE Department,
Dindigul District.
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7.The Managing Trustee,
Arulmigu Bhagavathi Amman Temple Trust,
Theni. ..Respondents
(R6 and R7 are suo motu impleaded vide Court order dated 28.11.2018)
PRAYER: This Writ Petition is filed under Article 226 of Constitution of
India, praying for issuance of Writ of Certiorarified Mandamus, to call for
the records relating to the impugned show-cause notice issued by the 5 th
respondent in Na.Ka.No.1850/2016/M dated 30.10.2018 and quash the
same and consequentially directing the 5th respondent not to interfere
with the petitioner's peaceful possession and maintenance of the
Elephant Rohini, aged 22 years.
For Petitioner : Mr.G.Thiagarajan
For Respondent : Mrs.J.Padmavathy Devi
Special Government Pleader
ORDER
This writ petition has been filed seeking issuance of writ of Certiorarified Mandamus to quash the impugned show-cause notice issued by the 5th respondent in Na.Ka.No.1850/2016/M dated 30.10.2018 and for a consequential direction to the fifth respondent not to interfere with the petitioner's peaceful possession and maintenance of the Elephant viz., Rohini, aged about 22 years.
2.The contention of the petitioner is that 'Certificate of Ownership' of 'Elephant Calf Rohini' was given by the Karnataka State http://www.judis.nic.in 3 vide proceedings in C1/CWL/CR-41/2002-2003 dated 20.01.2003 to one Mr.Kannaraja, who was the Secretary of Arulmigu Bhagavathi Amman Temple Trust, Theni and it was gifted only for worshipping purpose with certain conditions. Subsequently, the petitioner entered into an agreement with the said Kannaraja with regard to transfer of 'Certificate of Ownership', without informing the authorities concerned. The petitioner is taking good care and he is effectively maintaining the Elephant from that date. While the the fifth respondent has sent the impugned show cause notice in Na.Ka.No.1850/2016/M dated 30.10.2018, aggrieved by which, the present writ petition has been filed.
3.The HR & CE Department, Periyakulam, has sent a letter stating that Arulmighu Bhagavathi Amman Temple Trust does not come under the control of any of the HR & CE Department and it is stated that no proper address has been given for running the said Trust and it is further stated that one Sukumar is the person, who is taking care of the said Temple and the same has not been registered and no elephant is available in the said Temple.
4.The fifth respondent has filed the counter-affidavit, in which in paragraph No.12 it is stated as follows:-
“I humbly submit that para 6(c) is denied that Rule 5 (Housing of Elephants) of Environment and Forest http://www.judis.nic.in 4 Department – Tamil Nadu Captive Elephants (Management and Maintenance) Rule 2011 (G.O.Ms.No.10/Environment and Forests (FR.5) 16th September, 2011).
i) The owner shall provide a stable (tethering place) in a clean and healthy environment with sufficient shade to keep elephants during its rest period. Elephant should not be kept on concrete flooring or on any hard surface for long periods. The tethering area should necessarily have earth and sand for proper foot care.
ii) the owner shall provide two concrete sheds with proper ventilation for each elephant (for both adult and sub- adult). A minimum floor area and height of 9 meter X 6 meter X 6 meter shall be ensured.
iii) Proper ventilation with drainage facility shall be provided.
iv) No corrugated iron sheets or asbestos be used for roofing of elephant stables. The shed and surrounding area should have good drainage facility. The yard earmarked for elephant shall be with wooded or trees planted.
v) The elephant may be tethered to well grown tree day time in summer season.”
5.As per Section 39(3) of the Wildlife Protection Act, 1972, no person shall without the previous permission in writing of the Chief Wildlife Warden or the authorised officer acquire or keep in his possession, custody or control or transfer to any person, whether by way of gift, sale otherwise or destroy or damage, such Government property. http://www.judis.nic.in 5
6.On going through the order passed by the first respondent/the Principal Chief Conservator of Forests (Wildlife) and Chief Wildlife Warden – Karnataka State in proceedings No.C1/CW1/CR-4/2002-2003, dated 20.01.2003, who certified that Kannaraja, Secretary Theni is under his custody or possession of the following animal specified in Schedule – I of Wildlife Protection Act, 1972, the order clearly specified that the elephant is not for sale or barter or any type of exchange including gift to any other individual or Temple or concern. Accordingly, the petitioner has violated the provisions of Wildlife Protection Act, 1972 and the conditions stipulated in 'Certificate of Ownership' has not been changed to the writ petitioner and without valid licence or ownership, possession of above said elephant is illegal and issuance of impugned show-cause notice is legal and valid in law.
7. Accordingly, this Court directed the petitioner herein to produce the said elephant “Rohini” before the Chief Conservator of Forests, Virudhunagar Circle, Virudhunagar and also stated that if the petitioner did not hand over the said elephant “Rohini” to the authorities 4 and 5, the authorities are directed to seize the said elephant “Rohini” and bring it to their custody.
8.Today, when the matter is taken up for hearing, Mr.Kannaiah / fifth respondent appeared before this Court and he http://www.judis.nic.in 6 submitted that in pursuant to the earlier order of this Court dated 03.12.2018, the said elephant “Rohini” was produced before the Chief Conservator of Forests, Virudhunagar Circle, Virudhunagar and was handed over to him.
9.Now, the learned Special Government Pleader submitted that the said Elephant cannot be kept in the Office premises of the fourth respondent and also submitted that the Elephant Rohini has to be taken to any one of the Elephant Camp either at Theppakadu Elephant Camp, or Mudumalai National Park, Nilgiri.
10.In view of the above, the respondents are at liberty to decide which camp will be the suitable one for accommodating the Elephant Rohini. It is further directed that proper directions and permissions has to be obtained by the Principal Chief Conservator of Forests / second respondent herein for transporting the Elephant Rohini to Elephant Camp. The respondents can pass further orders regarding the show cause notice and take action, if necessary.
11.The second respondent is directed to pass orders giving directions and permission for transporting Rohini to Elephant Camp on or before 17.12.2018.
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12.It is made clear that while transporting the said Elephant Rohini, necessary facilities should be afforded to her and she should not be harassed and special care also should be taken by the officials.
13.The learned counsel for the petitioner submitted that he should be given permission to have the Elephant, which cannot be decided at this point before this Court. It is left open to the petitioner, to approach the concerned authority, if he so desire to redress his grievance.
14.With the above direction, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is also closed. Post the matter on 20.12.2018 for reporting compliance.
07.12.2018
Index : Yes / No
Internet : Yes / No
ta
http://www.judis.nic.in
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V.BHAVANI SUBBAROYAN,J
ta
To
1.The Principal Chief Conservator of
Forests (wildlife) and Chief Wildlife),
Warden- Karnataka State,
Bangalore, Karnataka State.
2.The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai.
3.The Additional Principal Chief Conservator of Forests – Madurai Range, K.K.Nagar, Madurai-625 020.
4.The Chief Conservator of Forests, Virudhunagar Circle, Virudhunagar, Virudhunagar District.
5.The Wild Life Warden, Grizzled Squirrel Wild Life Santuary, Srivilliputhur, Virudhunagar District.
6.The Assistant Commissioner, HR & CE Department, Dindigul District.
7.The Managing Trustee, Arulmigu Bhagavathi Amman Temple Trust, Theni.
W.P.(MD).No.23608 of 2018
07.12.2018 http://www.judis.nic.in