Madras High Court
S.Muralidharan vs Principal Chief Conservator Of Forests ... on 15 March, 2019
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, N.Seshasayee
W.P.No.6030 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.09.2019
DELIVERED ON : 19.09.2019
CORAM:
THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HON'BLE MR.JUSTICE N.SESHASAYEE
W.P.No.6030 of 2019
and WMP.No.6858 of 2019
S.Muralidharan .. Petitioner
Vs.
1.Principal Chief Conservator of Forests &
Chief Wildlife Warden,
Department of Forests, Govt. of Tamil Nadu,
No.1, Jeenis Road, Panagal Buildings,
Saidapet, Chennai-600 015.
2.Commissioner,
Hindu Religious & Charitable Endowments Department,
119, Uthamar Gandhi Salai,
Nungambakkam, Chennai-600 034.
3.Central Zoo Authority,
B-1 Wing, 6th Floor,
Pt.Deenadayal, Antyodaya Bhawan
CGO Complex, Lodhi Road,
New Delhi-110 003.
4.Sri Kanchi Kamakoti Peetham,
Srimatam Samsthanam,
No.1, Salai Street,
http://www.judis.nic.in Kancheepuram-631 502.
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W.P.No.6030 of 2019
5.Tree Foundation India,
5/25, Blue Beach Road,
Neelankarai, Chennai-600 115.
6.Wildlife Rescue & Rehabilitation Centre,
Bannerghatta, Bangalore-560 076. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus directing the first respondent
for the closure of illegal elephant shelter operating in Kurumbaram Village,
Marakannan Taluk, Villupuram District and pass such further orders.
For Petitioner : Mr.S.P.Chockalingam
For Respondents : Mr.S.V.Vijay Prasanth,
Additional Govt. Pleader for R1
Mr.K.R.Ashwin Kumar for R4
Mr.P.Sathish Parasaran,
Senior Counsel
for Mr.R.Parthasarathy for R5
Mr.S.V.Pravin Rathinam for R6
ORDER
M.SATHYANARAYANAN, J.
This writ petition is filed as a Public Interest Litigation. The petitioner claims that he is an avid animal lover and dedicated himself for the cause of animals and he carries out lot of activities for protection and conservation of wild as well as domestic animals. The petitioner would http://www.judis.nic.in 2 W.P.No.6030 of 2019 further state that he is also running a registered organization called “INCARE” and through which, he carries on some animal welfare activities, the details of which, extracted below, have been given in Paragraph No.1 of the affidavit filed in support of this writ petition:
i. Establishing the rights of the owners of domestic pets.
ii. Rescuing injured animals, treating them in clinics and returning them back to their location.
iii. Rescuing and up keeping of old and handicapped dogs.
iv. Rescuing and rehabilitating abandoned pets.
v. Donating blood for needy dogs across Chennai.
vi. Curing skin infections and maggot wounds on stray and pet animals.
vii.Rescuing cattle from illegal cattle trafficking to Kerala.
viii.Fighting cases in court against cattle traffickers.
ix. Educating and enlightening about misconception on Elephant domestication to general public.
x. Supporting Elephants being used in Temple rituals.
xi. Creating awareness and alerting authorities on man, animal conflict and suggesting remedies to authorities.
xii.Exposing Veganism & International conspiracy against Indian animals to public.
xiii.Running Veterinary campus for poor owners of animals.
http://www.judis.nic.in 3 W.P.No.6030 of 2019 xiv.Conducting training on animal laws to law enforcers in TN districts.
xv.Enabling birth control surgeries to stray dogs to reduce menace.
2. The petitioner would further aver that the fourth respondent, namely, Sri Kanchi Kamakoti Peetham, Kancheepuram had possessed 3 female elephants viz., (1) Sandhya, (2) Jayanthi and (3) Indumathi and the said elephants were maintained by them for conducting of rites and rituals. The fifth respondent, namely Tree Foundation India, Chennai-600 115, along with the sixth respondent namely, Wildlife Rescue and Rehabilitation Centre, Bannerghatta, Bangalore-560 076, claiming themselves to be Animal Welfare Organizations, had approached the fourth respondent and coerced them to part with the said three elephants on the pretext of cruelty and rehabilitation therefor. According to the petitioner, the objective of the respondents 5 and 6 is not to eradicate cruelty to animals, but to target Indian culture, customs and destroy elephants.
3. It is also the stand of the petitioner that the respondents 5 and 6 do not have any expertise in up-keep / maintenance of elephants and with their limited knowledge and ill intentions, they cannot add any value to the life of http://www.judis.nic.in 4 W.P.No.6030 of 2019 elephants and also spread lies, the details of which, extracted below, have been enumerated in Paragraph No.6 of the affidavit filed in support of this writ petition:
Domestic Elephants have foot rot. Even wild Elephants have foot rots. At least the domestic Elephants are cared for unlike Wild which suffer forever.
Many Elephants are blind. Untrue. If the Elephant is completely blind, it cannot work. Partial blindness could be due to an infection, which can be cured.
Many of the Tusks are chopped off Female Elephants have Tushes which is a violation under Wildlife and not Tusks which doesn't Protection Act, 1972. grow much. This shows the ignorance of Animal Rights.
Owners are using chains on Chains to Elephants are akin to
Elephants. Leash and Collar to Dogs worn
for their safety and our safety.
Chains are heavy and Elephants Weight of the Chain are akin to are chained in the nights. Leash and Collar weight of Dogs. Its important to chain Elephants in the night so that they don't go wandering.
Elephants are made to stand in the Elephants do sleep and rest same place for long hours. standing.
Stressed Elephants head bob and When Elephants listen to sway which are stereotypic sounds of music, they do Head behaviour. bob & Sway. This means relaxing and not stress.
Elephants have to sway as to keep blood circulation in their feet standing long hours.
http://www.judis.nic.in 5 W.P.No.6030 of 2019 There are wounds on the There can be wounds on the Elephants. Elephants and is it getting treated is the question, unlike wild elephants, which become fatal. There are scars on the Elephants. Elephants live for decades and lying down on one side also can create scars.
Elephants are given hard labour Working Elephants are healthy and made to walk up and down the and live 20 years more than hill. wild counterparts, because of this exercise.
Elephants need to socialize as they Other than their herd, animals are social animals. are never social. Once they leave the herd, they live a life of their own.
They are carrying huge weight. The Elephant anatomy is made to carry, or pull huge weight.
On an average they can carry or pull up to 10% of their body weight easily as human can easily carry 10% of their weight. The great South Indian Rock Temples and Taj Mahal couldn't have been built if not for the Elephants. Example 4000 Kg Elephant can easily carry 400 Kg's without much effort.
Elephants cannot perform, Wild Elephants climb rocks to
unnatural acts like climbing on a reach leaves in trees, there are
stool, stand with two legs and pictures that they stand with
swim. two legs in the wild and are
natural swimmers.
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W.P.No.6030 of 2019
Elephants need to walk for 18 There are experiments proving hour a day and eat 200 different that Elephants will not move if greens to stay healthy. they are given food and water in the same place.
Ankush or the Goad is an evil tool It's not a tool to hurt but create to hurt the Elephants and should discomfort, so that the 4000 be banned. Kgs Elephant listens to a 70 Kg.
Mahout.
Many Elephants have TB and that It's very rare since the body can spread to Human. temperature of Human and Elephant differs, and the bacteria will have to evolve the survive in both body type.
4. It is further averred by the petitioner that the respondents 5 and 6 had also threatened the fourth respondent with legal action alleging that the elephants left under the custody of the fourth respondent were subjected to ill treatment and torture. The petitioner, on the legal plea, took a stand that the respondents 5 and 6 did not have any authority from the first respondent to take the three elephants from the custody of the fourth respondent and they have not obtained permission from the second respondent for taking possession of the elephants from the custody of the fourth respondent and maintain them in their custody.
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5. The petitioner would further aver that the respondents 5 and 6 took delivery of the elephants from the fourth respondent and loaded them in lorries and in that process, one of the elephants, namely “Sandhya” sustained injuries and further pointed out that the so-called shelter run by the respondents 5 and 6 do not have the services of Elephant Veterinarian, much less whole time Veterinarian and though the respondents 5 and 6 making a tall claim that the elephants are living in chain free environment, it cannot be done for the reason that the elephants, whether male or female, cannot be without chains during night and it may be dangerous to nearby residents also. The petitioner further pointed out that through website information, the respondents 5 and 6 collecting donations and also begging for donations and in the process, demeaning India and Temples and their only aim is to collect money in the form of donations and their intention is not at all genuine and trustworthy and therefore, prays for appropriate direction directing the first respondent to translocate all the three elephants from the illegal custody of the respondents 5 and 6 to any of the Elephant Campus under the control of the first respondent.
6. The writ petition was entertained and notices were ordered. The first respondent has filed a counter affidavit dated 15.03.2019 and an http://www.judis.nic.in 8 W.P.No.6030 of 2019 additional counter affidavit dated 02.07.2019 with supporting documents in the form of photographs as well as additional typed of papers taking the following stand.
6.1. Indian Elephants are protected under Schedule – I (Part – II) of the Wildlife (Protection) Act, 1972 [in short “WLP Act”] and every person who possess any captive elephant should necessarily have the Ownership Certificate issued by the Chief Wildlife Warden under Section 42 of the WLP Act after due declaration under Section 40 by the concerned individual and also the certificate of ownership is issued by the Chief Wildlife Warden after ensuring that the individual has adequate facilities for housing, maintenance and upkeep of the elephants. The fourth respondent mutt was issued with Ownership Certificate in respect of three female captive elephants during the year 1999 and 2001 respectively under Section 42 of the WLP Act.
6.2. Jagadguru Sri Sankaracharya Swamigal of the fourth respondent mutt, vide letter dated 10.09.2015, made a request to the Principal Chief Conservator of Forest and Chief Wildlife Warden to grant permission for transport of three female elephants to the Wildlife Rescue and http://www.judis.nic.in 9 W.P.No.6030 of 2019 Rehabilitation Centre (WRRC) located either in Mallur, Karnataka or Marakkanam, Tamil Nadu for veterinary care and specialized medical treatment and necessary permission was also accorded to the Elephant Care Facility of the fifth respondent and WRRC at Marakkanam, Tamil Nadu for medical care and specialized treatment in natural surroundings for a period of 3 months, vide proceedings of the first respondent dated 10.05.2016 and subsequently, the said period was extended for a further period of 6 months, vide proceedings dated 03.10.2016.
6.3. The fourth respondent mutt also sent a communication dated 03.04.2017, pointing out that they were unable to take care of the long term veterinary needs and space for their three elephants and requested to extend the care duration for a further period of 3 years and the first respondent, vide proceedings dated 04.10.2017, taking into consideration the report of the District Level Captive Elephant Welfare Committee and Member Convener, District Forest Officer, Villupuram dated 17.07.2017, permitted the housing of three female elephants in the Elephant Care Facility of the fifth respondent as well as WRRC at Marakkanam, Tamil Nadu for a period of 3 months in the interest of the elephants with instructions to the Chairperson of the 5th respondent for compliance of the various observations http://www.judis.nic.in 10 W.P.No.6030 of 2019 pointed out by the District Level Captive Elephant Welfare Committee and the Forest Veterinary Officer, Coimbatore was also instructed to inspect the three female elephants and submit a report in accordance with the Tamil Nadu Captive Elephant (Management & Maintenance) Rules, 2011. The fifth respondent was also issued with a communication by the first respondent dated 14.11.2017 to take action for translocating the elephants to the concerned Temple after the completion of the period on 03.01.2018.
6.4. The first respondent, in respect of relevant statutory provisions and rules, took a stand that transit facility for housing and veterinary care of the elephants maintained by the fifth respondent does not come under the definition of “Zoo” under Section 38H of the WLP Act and hence, no accreditation to that effect has been issued by Central Zoo Authority [CZA] and besides that, the Project Elephant Division, Ministry of Environment, Forests and Climate Change, Government of India, vide letter dated 02.12.2015 have also issued instructions to various States, who were desirous of housing the ailing captive elephants of their State requiring medical care, to Elephant Rehabilitation Centre, Ban Santour, Haryana for long term medical treatment and life time care.
http://www.judis.nic.in 11 W.P.No.6030 of 2019 6.5. The Animal Welfare Board of India, vide communication dated 05.10.2015, in compliance of the order passed by this Court in W.P.No.28793 of 2013, was mandated to cause inspection of such temple elephants and also requested for grant of permission to the fifth respondent for housing of three female elephants.
6.6. It is the specific case of the first respondent that there is no provision available under the WLP Act to accord accreditation for the Elephant Care Facility, excepting issue of certificate of ownership under Section 42 of the WLP Act, based on the declaration as per Section 40 of the WLP Act by the Chief Wildlife Warden after ensuring that the applicant had adequate facilities for housing, maintenance and upkeep of the animal and admittedly, the ownership certificates in respect of three female captive animals have been issued in favour of the fourth respondent during 1991 and 2001.
6.7. It is also pointed out by the first respondent that the Forest Department is having facility at Alagapuram, Kurambapatty, Salem by name MR Palayam Elephant Rescue and Rehabilitation Centre for housing http://www.judis.nic.in 12 W.P.No.6030 of 2019 captive elephants and the District Level Captive Elephant Welfare Committee (DLCEWC), vide inspection report dated 26.02.2018 communicated in the District Forest Officer, Villupuram and Member Convener dated 05.03.2018 has submitted a comprehensive report stating about certain violations in terms of certain non-intended use of the facility other than medical care like for education and entertainment and also made recommendations that the three elephants should be shifted to MR Palayam Elephant Rescue and Rehabilitation Centre or Elephant Shelter area in Alagapuram, Kurumbapatty, Salem. The members of the District Level Captive Elephant Welfare Committee has caused inspection of the elephant care facility of the fifth respondent on 30.10.2018 and pointed out certain deficiencies and have recommended for shifting of the elephants to MR Palayam Elephant Rescue and Rehabilitation Centre, Trichy.
6.8. In the additional counter affidavit, the first respondent had dealt with MR Palayam, Elephant Rescue and Rehabilitation Center at Trichy and also given out the details as to how captive elephants should be maintained. The first respondent refuted the stand of the fifth respondent that three elephants are under chain free environment and took a stand that the provisions of WLP Act have been complied with in letter and spirit and http://www.judis.nic.in 13 W.P.No.6030 of 2019 further pointed out that the elephants, at some part of time, develop “Musth”and a kraal is put in place to treat/tame elephants during such periods for the reason that during such period, elephants may turn violent and as such, maintenance of kraal cannot be faulted with.
6.9. In sum and substance, it is the stand of the first respondent that in the light of the relevant statutory provisions coupled with the fact that the inspection report also noted certain deficiencies on the part of the respondents 5 and 6 while maintaining three elephants, it should be immediately shifted to MR Palayam Elephant Rescue and Rehabilitation Centre, Trichy and prays for appropriate directions.
7. The fourth respondent has filed a counter affidavit denying the averments made in the affidavit filed in support of this writ petition and took a stand that the three elephants are used as temple elephants and as per the advise of the District Forest Officer, Kancheepuram and the recommendations of the AWBI inspection Team, they reached out to the chairperson of the fifth respondent and the sixth respondent to provide the necessary care for the elephants and they were also informed of the required procedure involved in temporary transfer for housing of the said elephants http://www.judis.nic.in 14 W.P.No.6030 of 2019 and also took a stand that as long as the said elephants remained in their custody, they were well taken care of. It is also the stand of the fourth respondent that they have handed over the custody of the three elephants in favour of the respondents 5 and 6, who are no more than care taker of the elephants and that they intend to take back the elephants as soon as possible as they are hopeful of getting infrastructure in place.
8. The Founder, Chairperson and Managing Trustee of the fifth respondent has filed a counter affidavit dated 26.04.2019 as well as additional counter affidavit dated 14.07.2019, denying the averments made in the writ petition and admitted the fact that ownership certificates were issued in favour of the fourth respondent and they being the legal owners of the elephants was under statutory obligation to give best living conditions to the elephants and they pray for the care and custody of the elephants in favour of the fifth respondent and at no point of time, they made request for ownership of the elephants. The fifth respondent has also dealt with the 54 reports on India's Captive Elephants and also took a stand that use of “Ankush” which is a sharp metallic body and chaining of elephants are inhumane and unscientific and their Elephant Care Facility is admeasuring 13 acres and odd with ample roaming space and thus making it suitable for http://www.judis.nic.in 15 W.P.No.6030 of 2019 elephants to roam, graze, forage, play and walk freely without the danger of getting into accidents.
9. The fifth respondent has conceded to the fact that under WLP Act, there is no provision for accreditation of Elephant Care Facility and with regard to the facilities available to take care three captive elephants are concerned, they have having veterinarian as well as consultant veterinarian from the sixth respondent and both are having sufficient expertise and that apart, two resident veterinary assistants follow the treatment schedule every day and maintain a treatment register and those registers are periodically communicated to the first respondent, Conservator of Forests and the District Forest Officer, Villupuram on every Monday since September, 2017.
10. The fifth respondent would further state that their centre has a chain free facility and the place have been secured by a heavy duty steel “I” beam griders for the enclosures, which keep the elephants in a secured area while giving them the comfort of being free and able to move around at will and it is also taken care of by Mahouts, Cawadies (helpers) as well as Managers and Supervisors, who are all well trained in elephant care. It is http://www.judis.nic.in 16 W.P.No.6030 of 2019 further averred by the fifth respondent that in case of non-compliance, which are brought to their notice, immediate remedial measures would be taken.
11. The additional counter affidavit of the fifth respondent deals with the facilities available to maintain and take care of the captive elephants and also took a stand that the fourth respondent is contributing Rs.50,000/- per month for the upkeep of the elephants and the shifting of the three elephants, which are in need of continuous specialized care and having already adapted to the Elephant Care Facility, Marakannam, would only result in duplication of efforts and is likely to impact the elephants as they have only now been kept in a stable environment without any physical or psychological stress and if they are shifted to a different environment as suggested by the first respondent, it may not augur well for their welfare and upkeep. The fifth respondent has also field a written submission, dealing with the objections raised by the first respondent through the inspection report.
12. The sixth respondent has filed a counter affidavit dated 08.04.2019 and apart from supporting the stand of the fifth respondent http://www.judis.nic.in 17 W.P.No.6030 of 2019 would submit that the entire Elephant Care Facility of the fifth respondent is only meant for three captive elephants and the monthly maintenance comes to the tune of Rs.3,50,000/-, and out of which a sum of Rs.50,000/- is contributed by the fourth respondent mutt and the balance amount is being generated by the respondents 5 and 6 out of crowd funding and donations from trustees of the respondents 5 and 6, philanthropists and animal lovers like any other NGO and some donors and devotees who make donations insist on visiting the facility so as to ensure that the upkeep of the elephants are taken care of and it cannot be faulted with. The sixth respondent also took a stand that the respondents 5 and 6 are doing honest and dedicated work and the custody of the three elephants were handed over lawfully for the purpose of housing, upkeep and maintenance and as such, the writ petition per se is not maintainable and therefore, prays for dismissal of the writ petition with exemplary cost.
13. Mr.S.P.Chockalingam, learned counsel appearing for the petitioner has drawn the attention of this Court to WLP Act as well as Tamil Nadu Captive Elephant (Management and Maintenance) Rules, 2011 and would submit that the fourth respondent mutt have been issued with Ownership Certificate in respect of three captive female elephants and since http://www.judis.nic.in 18 W.P.No.6030 of 2019 they expressed difficulty in the maintenance of temple, they contacted the jurisdictional District Forest Officer and on his advise, entrusted temporary custody of elephants to the custody of the fifth respondent and the custody cannot be transformed into a permanent one for the reason that the respondents 5 and 6 cannot said to be the owners of the three captive elephants and in the absence of necessary written authorization/permission from the concerned authority as to the transfer of ownership of the said three elephants, the respondents 5 and 6 are not entitled to have permanent custody of the three captive female elephants.
14. It is the further submission of the learned counsel appearing for the petitioner that the respondents 5 and 6 knew pretty well that the custody of the elephants were handed over to them only as a temporary measure and it cannot be converted as a proceedings for permanent custody and the period of temporary custody had expired on 03.01.2018 itself and MR Palayam Elephant Rescue and Rehabilitation Center, Trichy, maintained by the Government of Tamil Nadu is also ready and therefore, the elephants should be transported without loss of time. The learned counsel appearing for the petitioner has also drawn the attention of this Court to the reports of the District Forest Officer, Villupuram and Member Convener of District http://www.judis.nic.in 19 W.P.No.6030 of 2019 Level Captive Elephant Welfare Committee, Villupuram dated 17.07.2017 and 26.02.2018, wherein they made a suggestion that for complete healing and continued treatment they should be shifted to Mr Palayam Elephant Rescue and Rehabilitation Centre, Trichy in accordance with rules and guidelines. The learned counsel appearing for the petitioner further invited the attention of this Court to the comprehensive report of the District Level Elephant Welfare Committee, Marakannan dated 26.02.2018 and the report of the Conservator of Forest Dated 28.02.2019 and made a submission that the three captive elephants should be shifted from the Elephant Care Facility of the respondents 5 and 6 without loss of time for the reason that they cannot have any permanent custody and the statutory rules/regulations do not permit so and that apart, through website information and advertisement, they also started collecting donations from foreign donors and thereby doing commercial exploitations and since their intention is not good and vitiated due to malafides and oblique motive, prays for allowing of this writ petition.
15. Mr.S.V.Vijay Prasanth, learned Additional Government Pleader appearing for the first respondent has drawn the attention of this Court to the counter affidavit and additional counter affidavit of the first respondent supported by typed set of documents and would submit that Central Zoo http://www.judis.nic.in 20 W.P.No.6030 of 2019 Authority (CZA) and the Project Elephant Division, Ministry of Environment, Forests and Climate Change, has sent a communication dated 23.07.2015 to Mrs.Suparna Ganguly, in response to her e-mail dated 16.07.2015, clarifying that 'Private Care Facility' for privately owned elephants if functioning as a transit facility for housing and veterinary care of the elephants does not come under the definition of “Zoo” under Section 38H of the WLP Act and admittedly, the respondents 5 and 6 are very well aware of the fact that the entrustment of custody of the three female elephants by the fourth respondent is only a temporary measure and they cannot claim it as a matter of right to have permanent custody of the elephants.
16. It is further pointed out by the learned Additional Government Pleader appearing for the first respondent that admittedly, the fourth respondent have been issued with Ownership Certificate and since they expressed certain difficulty in maintaining the temple and also drawn the attention of this Court to the proceedings of the first respondent dated 10.05.2006m, wherein initial custody was handed over for a period of three months and it has been extended periodically and as such, it cannot be said that permanent custody of the three captive female elephants have been http://www.judis.nic.in 21 W.P.No.6030 of 2019 handed over to the fifth respondent. It is the further submission of the learned Additional Government Pleader appearing for the first respondent that the District Forest Officer, Villupuram and the Member Convenor, District Level Captive Elephant Welfare Committee also sent a communication dated 17.07.2017 to the first respondent as well as to the Conservator of Forests and the Chairman, District Level Captive Elephant Welfare Committee and pointed out as many as 15 deficiencies and also indicated that most of the provisions of the Tamil Nadu Captive Elephants (Management and Maintenance) Rules, 2011 have not been followed, which result in endangering the lives of the elephants housed in the said place and the fifth respondent was also put on notice, vide communication of the first respondent dated 04.10.2017, with a request to take necessary action for the indicated deficiencies and submit an Action Taken Report to the District Level Captive Elephants Welfare Committee, Villupuram at the earliest and the Deputy Director / Forest Veterinary Officer, Coimbatore also caused inspection of the Elephant Care Facility of the respondents 5 and 6 and sent a report dated 26.02.2018 to the first respondent pointing out certain serious deficiencies and made positive recommendation that the elephants should be shifted to MR Palayam Elephant Rescue and Rehabilitation Centre and the Elephant Shelter Area in Alagapuram, Kurumbapaty, Salem. http://www.judis.nic.in 22 W.P.No.6030 of 2019
17. It is also brought to the knowledge of this Court by the learned Additional Government Pleader appearing for the first respondent that the District Level Captive Elephant Welfare Committee has submitted a comprehensive report dated 26.02.2018 pointing out among other things that a Facebook information was also floated by the respondents 5 and 6 for the purpose of mobilizing funds, which is nothing but a sort of glorified begging and in some of the photographs, it was found that foreigners were allowed to treat elephants and the records maintained with respect to the treatment given to elephants by foreigners was not produced for inspection and having noted the deficiencies, recommended that the three captive elephants should be shifted to MR Palayam Elephant Rescue and Rehabilitation Center, Trichy or to Elephant Shelter area in Alagapuram, Kurumbapattu, Salem for the interest of captive elephants following the conditions laid down as per Rule 14 of the Tamil Nadu Captive Elephants (Management and Maintenance) Rules, 2011 and further recommended that there is no need for further extension of period of stay for elephants in the Elephant Care Facility of the respondents 5 and 6. In sum and substance, it is the submission of the learned Additional Government Pleader appearing for the first respondent that the respondents 5 and 6 are very well aware of the fact that entrustment of custody of elephants in their Elephant Care http://www.judis.nic.in 23 W.P.No.6030 of 2019 Facility is purely a temporary measure and requesting for permanent custody of the 3 elephants is not at all backed by any statutory rule or basis and that apart, the period of temporary stay has also expired during January, 2018 itself and therefore, prays for appropriate orders for translocating of elephants to MR Palayam Elephant Rescue and Rehabilitation Center, Trichy or to Elephant Shelter area in Alagapuram, Kurumbapattu, Salem.
18. Mr.K.R.Aswin Kumar, learned counsel appearing for the fourth respondent would submit that as of now, they lack necessary facilities to keep the elephants in their custody and would abide by the orders passed by this Court as to the transfer and custody of the elephants.
19. Mr.Sathish Parasaran, learned counsel appearing for the fifth respondent has drawn the attention of this Court to the counter affidavit and additional counter affidavit as well as written submissions filed on behalf of the fifth respondent along with supporting typed set of documents and would submit that use of “Ankush” which is a sharp edged weapon as well as chaining of elephants especially with sharp projections inside the rings of the chains would definitely amount to cruelty and right from the day the temporary custody of the elephants have been handed over to the Elephant http://www.judis.nic.in 24 W.P.No.6030 of 2019 Care Facility of the respondents 5 and 6, they are maintaining them in chain free environment and they are having round the clock attention by qualified and experienced Mahouts, Cawadies (helpers) and necessary precaution have also been undertaken so far and the three captive elephants cannot come of the secluded enclosure.
20. It is the further submission of the learned Senior Counsel appearing for the fifth respondent that admittedly, temporary custody of the three elephants was handed over by the fourth respondent after obtaining necessary clearance and the three elephants continued to remain in their custody for nearly 2 years and they are used to the present environment and all the three elephants have close emotional touch with each other and it would be very cruel on the part of the official respondents to transfer and relocate them in their facilities either at Trichy or at Salem and further pointed out that the said facilities are not maintained in a scientific manner. The learned Senior Counsel appearing for the fifth respondent would submit that as regards the allegation of website information and unauthorised entry of foreigners, took a stand that donors are making voluntary contribution and therefore, they would like to ensure that the donated funds are spent usefully and assured that the presence of elephants in their Elephant Care http://www.judis.nic.in 25 W.P.No.6030 of 2019 Facility is not for commercial exploitation and also assured that it is always open to the appropriate authority to make periodical and surprise inspection as to the care and custody of the elephants at the hands of the respondents 5 and 6.
21. It is also pointed out by the learned Senior Counsel appearing for the fifth respondent that though the alleged deficiencies were noted, the respondents 5 and 6 have not been afforded with reasonable opportunity to respond to the said allegations and therefore, it cannot be the basis for ordering shifting of the elephants to the Elephant Care Facility maintained by the Forest Department of the Government of Tamil Nadu. In sum and substance, it is the submission of the learned Senior Counsel appearing for the fifth respondent that for the past 2 years, the three female captive elephants continued to be under the care and custody of the respondents 5 and 6 and no occasion or necessity had arisen for shifting of the elephants and in the event of shifting being done, the elephant may be put to stress, which may have psychological impact and also gave an undertaking that proper scientific mechanism would be put in place for proper upkeep and maintenance of the captive elephants and periodical monitoring and inspection can also be done by the official respondents and prays for dismissal of this writ petition with exemplary cost. http://www.judis.nic.in 26 W.P.No.6030 of 2019
22. Mr.S.V.Pravin Rathinam, learned counsel appearing for the sixth respondent apart from adopting the arguments of the learned Senior Counsel appearing for the fifth respondent would submit that under the garb of religious functions and rituals, elephants are held captive in temples, mutts and other religious places and it is high time for the authorities concerned to take a call to free elephants and resort to appropriate remedial measures to abate/halt the agonies/sufferings undergone by captive elephants.
23. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the entire materials placed before it.
24. A Centrally Sponsored Scheme for elephants was made available, namely “Project Elephant Division”. The elephants, because of size, habitat and other basic requirements require wide and large land space. This Court can take judicial notice of the fact that under the garb of improving infrastructure and other facilities, roads and railway lines have been laid in the elephant corridors and on account of the said fact, death of very many elephants take place due to unnatural causes.
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25. The Hon'ble Supreme Court of India, in the decision in T.N.Godavarman Thirumulpad v. Union of India and Others [(2012) 3 SCC 277] has expressed anguish as to such kind of development and it is relevant to extract the observations made in paragraph Nos.11, 12, 13, 16 and 17 of the said judgment:
"11. Human-wildlife conflict is fast becoming a critical threat to the survival of many endangered species, like wild buffalo, elephants, tiger, lion, etc. Such conflicts affect not only its population but also has broadened environmental impacts on ecosystem equilibrium and biodiversity conservation. Laws are man-made, hence there is likelihood of anthropocentric bias towards man, and rights of wild animals often tend to be of secondary importance but in the universe man and animal are equally placed, but human rights approach to environmental protection in case of conflict, is often based on anthropocentricity.
12. Man-animal conflict often results not because animals encroach human territories but vice versa. Often, man thinks otherwise, because mans thinking is rooted in anthropocentrism. Remember, we are talking about the conflict between man and endangered species, endangered not because of natural causes alone but because man failed to preserve and protect them, the attitude was destructive, for pleasure and gain. Often, it is said that such conflicts are due to human population growth, land use transformation, species habitat loss, degradation and fragmentation, increase in eco-tourism, access to natural reserves, increase in livestock population, etc.
13. Proper management practices have to be accepted, like conservation education for local population, resettlement of villages, curbing grazing by livestock and domestic animals in forest, etc., including prey-preservation for the wild animals. Provision for availability of natural water, less or no disturbance from the tourists has to be assured. The State also has to take steps to remove encroachments and, if necessary, can also http://www.judis.nic.in 28 W.P.No.6030 of 2019 cancel the patta already granted and initiate acquisition proceedings to preserve and protect wildlife and its corridors. Areas outside PAs is reported to have the maximum number of man-animal conflict, they fall prey to poachers easily, and often invite ire of the cultivators when they cause damage to their crops. These issues have to be scientifically managed so as to preserve and protect the endangered species, like wild buffalo and other species included in Schedule I Part I of the Wildlife (Protection) Act, as well as other species which face extinction. .....
16. The Report clearly states that development activities cause more interference in forest and also the privacy of wildlife and these ultimately cause conflict with wildlife. Man-animal conflict often takes place when wild animals cause damage to agricultural crop and property, killing of livestock and human beings. Human population growth, land use transformation, species loss of habitat, ecotourism, too much access to reserves, increase in livestock population bordering the forest, depletion of natural prey base, etc., are often stated to be reasons for such conflict. The Central Government, the State Governments, and the Union Territories should evolve better preservation strategies, in consultation with Wildlife Boards so that such conflicts can be avoided to a large extent. Participation of people who are staying in the community reserves is also of extreme importance. The necessity of implementing proper management measures for preserving the wild buffalo has also been elaborately stated in the Report.
17. Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric. Many of our principles like sustainable development, polluter- pays principle, intergenerational equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and that non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non-human based benefits to humans. Ecocentrism is nature-centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have http://www.judis.nic.in obligations to non-humans independently of human interest.29 W.P.No.6030 of 2019
Ecocentrism is therefore life-centred, nature-centred where nature includes both humans and non-humans. The National Wildlife Action Plan 2002-2012 and the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 are centred on the principle of ecocentrism."
26. The Project Elephant Division include habitat improvement, fire protection, land acquisition for consolidation of habitats and establishment of corridors, procurement of equipment for protection, census of elephants, immunization of cattle on the forest fringe, payment of exgratia grant for damage to human life and property by elephants, construction of elephant- proof barriers, construction of patrolling tracks and campus etc. The said project also brought out a book on “Management of Captive Elephants” to help in the better management of elephants in captive conditions.
27. The Prevention of Cruelty to Animals Act, 1960 [Central Act No.59 of 1960] came into being to prevent the infliction of unnecessary pain or suffering on animals. Section 2(c) defines “captive animal” and it means “any animal (not being a domestic animal) which is in captivity or confinement, whether permanent or temporary; or which is subject to any appliance or contrivance for the purpose of hindering or preventing its escape from captivity or confinement or which is pinioned or which is or http://www.judis.nic.in 30 W.P.No.6030 of 2019 appears to be maimed”. Section 4 of the said Act speaks about establishment of Animal Welfare Board and Chapter III of the said Act deals with cruelty to animals generally.
28. The Wild Life (Protection) Act, 1972 [Central Act No.53 of 1972] came to be passed to protect wild animals, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. Section 2(39) of the said Act defines “Zoo” which means “an establishment, whether stationary or mobile, where captive animals are kept for exhibition to the public [and includes a circus and rescue centres but does does not include an establishment of a licensed dealer in captive animals]”. Chapter V of the WLP Act deals with Trade or Commerce in Wild Animals, Animal Articles and Trophies and Section 39 says that Wild animals etc., to be the Government Property. It is relevant to extract Sections 40, 42 and 43 of the said Act:
“40. Declaration. – (1) Every person having at the commencement of this Act the control,custody, or possession of any captive animal specified in Sch. I or Part 11 of Sch. 11, or any uncured trophy derived from such animal or salted or dried skin 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 Wildlife- http://www.judis.nic.in Warden or the authorised officer the number and description of 31 W.P.No.6030 of 2019 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 otherwise transfer or transport any animal specified in Sch. 1 or Part 11 of Sch. 11, any uncured trophy or meat derived from such animal, or the salted or dried skin of such animal or the musk of a deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wildlife Warden 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 acquired, 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 (2-A), 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 (2-A) and (2-B) 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 381 or to a public museum.] (4) The State Government may, by notification, require any person to declare to the Chief Wildlife Warden or the authorised officer any animal, article or trophy (other than the musk of musk deer or the horn of rhinoceros), or salted or dried skin derived from an animal specified in Sch. I or Part 11 of Sch. H in his control, custody or possession in such form, in such manner, and within such time as may be prescribed.
42. Certificate of ownership. - The Chief Wildlife Warden may, for the purposes of Sec. 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 http://www.judis.nic.in or any animal article, trophy, or uncured trophy, and may, 32 W.P.No.6030 of 2019 where possible, mark, in the prescribed manner, such animal article, trophy or uncured trophy for the purposes of Identification.
43. Regulation of transfer of animal etc. - (1) Subject to the provisions of sub-section(2), (3) and (4), a person (other than a dealer) who does not possess a certificate of ownership shall not
(a) sell or offer for sale or transfer whether by way of sale, gift or otherwise, any wild animal specified in Sch. I or Part II of Sch. 11 or any captive animal belonging to that category or any animal article, trophy, uncured trophy or meat derived therefrom;
(b) make animal articles containing part or whole of such animal;
(c) put under a process of taxidermy an uncured trophy of such animal;
except with the previous permission in writing of the Chief Wildlife Warden or the authorised officer.
(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 article, trophy or uncured trophy as referred to in sub-section (1) 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 Wildlife 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 animal articles or trophies made therefrom, (b) to any transaction entered into by a recognised zoo subject to the provisions of Sec 381 or by a public museum with any other recognised zoo or public museum].”
29. The sole question that arises for determination is whether the private respondents, viz., the respondents 5 and 6, can have permanent custody of three female Captive Elephants – custody of which, have been handed over as a temporary measure?
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30. The Tamil Nadu Captive Elephants [Management and Maintenance] Rules, 2011, (in short ''The Captive Elephants Rules 2011) came into being vide G.O.MNs.No.107, Environment and Forests [FR.5] Department, dated 16.09.2011 in exercise of powers conferred by Clause [f] of sub-section [2] of Section 64 of the Wildlife [Protection] Act, 1972 [Central Act 53/1972] and it is relevant to extract the following Rules:-
Section 2(c):- ''Department'' means the Tamil Nadu Forest Department ;
Section 2(d):- ''elephant'' means any elephant, captured or kept or bred in captivity; and Section 2(f):- ''owner'' means a person who owns an elephant.
31. The Captive Elephants Rules 2011 is comprehensive in nature, which deal with all aspects relating to the captive elephants. Rule 3 speaks about the possession of an elephant donated to the temple ; Rule 5 speaks about housing of elephants ; Rule 6 speaks about care of elephant ; Rule 11 speaks about the record to be maintained by every owner of the elephant ; Rule 13 deals with the acts which are tantamount to cruelty to elephants and it enumerates 26 acts which shall be considered as acts of cruelty to elephants and are prohibited. Sub-rule 14 of Rule 13 prohibits ''using heavy http://www.judis.nic.in 34 W.P.No.6030 of 2019 chains and hobbles with spikes or sharp edges or barbed wires for tying elephants''. Rule 15 deals with Welfare Committees and it is relevant to extract the same:-
15.Welfare Committees:-
...
(3) The District Level Committee shall inspect the records maintained under these rules and send a report to the State Level Committee for its recommendations. The District Level Committee shall review the welfare and maintenance of the elephants, once in three months.
(4) Each District Level Committee shall maintain a data sheet as specified in Annexure-II in respect of each captive elephant in the District under their jurisdiction.
32. Annexure-I to be read with Rule 4[5] speaks about the management and maintenance of Tamil Nadu Captive Elephants and it deals with the DOs and DONTs. Annexure-II [III] deals with the ownership details and [V] deals with Husbandry and Clause [G] to Annexure-II [III] speaks about Restraint Devices and it is relevant to extract the same:-
G.RESTRAINT DEVICES:-
Tethering material used:Chains/Ropes/Both/Others...... Hours chained/tied in a day--- hrs. Sikes in Hobbles : Yes/No Number of legs chained/tied: ½/3/4. Length and weight as per specifications: Yes/No http://www.judis.nic.in 35 W.P.No.6030 of 2019 Other restraint implements used: Clause [IX] deals with Mahout and Cavady details.
33. Admittedly, the 4th respondent had necessary permission to keep the three female elephants in captivity for religious functions and other rituals and vide communication dated 10.09.2015, the 4th respondent made a request to the 1st respondent to grant permission for transport of three female captive elephants to the 6th respondent or the Wildlife Rescue and Rehabilitation Centre at Tamil Nadu for veterinary care and specialised medical treatment and accordingly, permission was accorded to transport three female captive elephants belonging to the 4th respondent Mutt to the Elephant Care Facility of the 5th respondent for medical care and specialised treatment in natural surroundings for a period of three months, vide proceedings of the 1st respondent dated 10.05.2016 and it has been periodically extended and expired during January 2018.
34. During the period of interim custody, the District Level Captive Elephant Welfare Committee caused inspection and submitted an Inspection Report dated 26.02.2018 to the District Forest Officer, Villupuram and Member Convener vide Reference dated 05.03.2018, pointed out certain http://www.judis.nic.in 36 W.P.No.6030 of 2019 violations. The District Forest Officer and Member Convener, District Captive Elephant Welfare Committee [DLCEWC], on an earlier occasion, also sent a communication dated 17.07.2017 in C.No.7736/2015/A2 to the 1st respondent as well as to the Conservator of Forests and Chairman of District Captive Elephant Welfare Committee, Villupuram, after causing inspection of the care facility maintained by the 5th respondent and noted the following deficiencies:-
1. The care facility has good infrastructure including shed, shelter, protected perimeter, foraging area, kitchen and cooking area, store and mahout shelter.
2. The centre has good water source from four bore wells drilled.
3. Attempts on positive reinforcement, viz., chain free tethering, persuading the elephants with feed to obey certain commands etc., is a practice recently adopted in the centre seems to be handled by an unqualified person.
4. Seedlings are planted around the yard and surrounding area to provide shade. There is a coconut grove in the centre where the elephants are tethered during day time.
5. The very purpose of the facility is to provide medical care and specialised treatment which is defeated in ECF as there is no regular veterinarian and there is no specialised treatment.
6. The only antibiotic drug administered is http://www.judis.nic.in streptopencillin which is a first generation 37 W.P.No.6030 of 2019 antibiotic against which the disease agents/organism had developed virulence. There is no specific antibiotic being imparted to the elephants.
7. There is abcess in the legs of the elephants which may be due to disruption of internal blod supply.
The abscesses are chronic and there is no specialised treatment being offered to the infection in the centre. The very purpose of the transit is not upheld.
8. The institution maintains only feed register among standard registers specified in the Tamil Nadu Captive Elephants [Management and Maintenance] Rules, 2011 [TNCEMM Rules, 2011].
9. The pool bath requires a drainage system to discharge stagnant water.
10.Except for the person named Jeeva, all others who were referred as mahout do not seem to possess the qualification of the mahout as they lack command and authority over the animals.
The HoDs from Madras Veterinary College insisted the mahout to mount on the elephant, which he could not do as the elephant was not obeying his command. This shows lack of command and absence of mahout qualities.
11.The mahouts and helpers present now are totally differnent from the mahouts and helpers in earlier inspection the reason for which is clueless. But, this may bring negative psychological influence on the animal.
12.The elephants were not given annual vaccination as prescribed in the TNCEMM Rules, 2011 and http://www.judis.nic.in there is no vaccination record. Hence, there is 38 W.P.No.6030 of 2019 risk of zoonosis.
13.Periodical medical checkup for the mahout and helpers is not ensured and they are not enrolled in any insurance plans.
14.The quantity of food and supplements provided to the elephants seeks to be insufficient and the animals are weak. The member from HR&CE Department referred that it is a practice to feed less to bring down the aggressiveness of the elephants which is cruel, i.e., less fed animal is less active.
15.It is important to note the elevated levels of ALT and AST as observed in the laboratory investigation which may be a sign of muscle damage and liver disease. This can be ascertained from the veterinarian health status report.
Significant report on elevated phosphorous poses risk of renal diseases.
16.Further, in the above context, it is essential to take note of the legal opinion of the Additional Government Pleader [Forests] against the writ petition 11700 of 2017 on the file of the Hon'ble High Court, Madras vide reference 5th cited above.
During inspection, it is observed that most of the provisions of TNCEMM Rules, 2011, were not followed which will endanger the life of elephants housed in the facility.'' Three Annexures were also enclosed along with the said Report. The 1st respondent, vide communication dated 04.10.2017 in Reference No.WL1/15395/2017-1, brought to the knowledge of the respondents 4 and http://www.judis.nic.in 39 W.P.No.6030 of 2019 6 as well as to the Animal Welfare Board of India, and other officials, the result of the Field Inspection dated 29.05.2017 by the District Level Captive Elephants Welfare Committee, wherein, it has been stated that the observations made by the said Committee are not in favour of the temporary care centre of the 5th respondent. The 1st respondent, having brought to the knowledge of the observations/deficiencies, had requested the respondents 5 and 6 to take necessary action in respect of the negative observations/deficiencies submitted by the DLCEWC and submit the Action Taken Report for compliance of the matter at the earliest.
35. The 5th respondent, in paragraph No.3 of the written submissions dated 28.06.2019, has indicated the response given to the alleged irregularities and observations made by DLCEWC and took a stand that the 5th respondent has complied with the stipulations containing Captive Elephants Welfare Rules and should there be any inadequacy, the three female captive elephants can be transported to a State run facility which complies with all stipulations of 2007 Rules and further pointed out that the kraals for training elephants in the said facility will result in cruelty and the same has been condemned by the Courts in various judgments. http://www.judis.nic.in 40 W.P.No.6030 of 2019
36. The 1st respondent has sent a communication dated 14.11.2017 in Reference No.WL1/15395/2017 to the 4th respondent as well as to the Chairperson of the 5th respondent, requesting the respondents 5 and 6 to provide necessary veterinary treatment to the captive elephants and take action for translocating the elephants to the concerned temple authority after the extension period is over on 03.01.2018 with a further request to the Member Convener of DLCEWC, Kancheepuram, to submit the Action Taken Report.
37. The Deputy Director/Forest Veterinary Officer attached to the office of the Conservator of Forests, Coimbatore, after causing inspection, had submitted a report on 26.02.2018, to the 1st respondent and the contents of the said report would indicate that the three captive elephants were inspected in the Elephant Care Facility maintained by the 5th respondent along with the following officials and personnel, viz.,
1.District Forest Officer, Villupuram Division, Villupuram.
2.Assistant Commissioner, HR&CE, Villupuram Division.
3.Veterinary Surgeon, Vallam.
4.An Executive of NGO, Aranya, Villupuram.
5.Forest Range Officer and Range Staff.
6.Members, Veterinarians, Assistants and elephant men working with http://www.judis.nic.in respondents 5 and 6 and made the following observations:- 41 W.P.No.6030 of 2019
''Elephant Sandhya:- A fistulous wound on the right stifle an open wound on the right and left hip areas and minor septic wounds over both the elbow joints. Elephant Indu:-Septic wounds over both the elbow joints, over grown nails and foot rot in right fore limb. Elephant Jayanthi:- An abscess over the lateral side of the right elbow and lacerated wounds over the fetlock joint on both the hind legs due to roping or chaining. There are two Veterinary consultants available with the centre Dr.Selvamuthu visits the centre three times a week and Dr.Shanthanu visits once in a month and offer opinions regarding treatment of the animals. The wound are dressed and medicaments are applied by the veterinary attendants and animal keepers based on the advice of the veterinarians. The natural substrate, ambience, treatment and management practices improved the general health conditions and the wounds are all healing. However, for complete healing continued treatment and similar circumstances are required.
The elephants suffer from the wounds which are fall out of faulty management practices in the previous home. Registers on treatment and stores are maintained. Vaccinations and de-worming particulars are available. The feed analysis suggested by the Team of Veterinarians from TANUVAS was not carried out. http://www.judis.nic.in Suggestions:-The main objective of this temporary 42 W.P.No.6030 of 2019 facility to improve the general health and wound healing has materialised satisfactorily. The animals are fit to undertake travel.
The MR Palayam elephant rescue and rehabilitation centre and the elephant shelter area in Alagapuram, Kurumbapaty area of Salem has good facilities to hold elephants, provide care and management.
Myself, as a Senior Forest Veterinary Officer understand the primary causative factors for the wounds in elephants and the biology of the animals and wish to bring in good self notice that there are more old captive elephants in the State which may require interventions in the future. Hence, in the long run keeping in mind the interest of the captive elephants and in accordance with the rules, guidelines and protocols, the MR Palayam Elephant Rescue and Rehabilitation Centre and the Elephant Shelter Area in Alagapuram, Kurumbapaty area of Salem would be ideal future sites.''
38. The District Forest Officer and Member Convener of DLCEWC, Villupuram, has submitted a Comprehensive Report dated 05.03.2018, to the 1st respondent and the Comprehensive Report dated 26.02.2018 which has been enclosed along with the said Communication dated 05.03.2018 http://www.judis.nic.in 43 W.P.No.6030 of 2019 would read among other things that the photographs of the three captive elephants were uploaded in the Facebook Page called ''Elefriends101'' and it is used as a means for mobilising funds by allowing foreigners and film stars to the Elephant Care Centre, which is sort of glorified begging and that apart, public and foreigners were allowed inside the Care Facility Centre. In the Facebook page, a donation link was also added and in some of the photos, it was found that the foreigners were allowed to treat elephants and the record maintained with regard to the treatment given to the elephants by the foreigners was not produced by the Chairperson of the 5th respondent for inspection. It is further stated that 17 Mahouts, who worked in the Elephant Care Facility of the 5th respondent, had stayed only for a short period of time and as of now, only 3 Mahouts and no Cavady were available for taking care of the elephants and they could not control the elephants because of the frequent change and short tenure of mahouts and further noted that there is an imminent danger to the human casualty if public and foreigners are allowed in the Elephant Care Centre of the 5th respondent and therefore, the action of NGO-5th respondent herein violates the order of CWLW. Further, it is also noted in the said Report that the respondents 5 and 6 are not authorised to upkeep the elephants received from temples, Circuses or private owners under the pretext of cruelty since it does not have http://www.judis.nic.in 44 W.P.No.6030 of 2019 recognition under section 38H[1] of the WLP Act and therefore, made a suggestion that the three female captive elephants who are in the Elephant Care Centre of the 5th respondent needs to be shifted to MR Palayam Elephant Rescue and Rehabilitation Centre at Trichy or to the Elephant Shelter area in Alagapuram, Kurumbapatty, Salem, by following conditions of Rule 14 of the Captive Elephants Rules, 2011 and also felt that there is not need for further extension of period of stay of the three female captive elephants in the Elephant Care Centre of 5th respondent.
39. The Conservator of Forests, Villupuram Circle, Villupuram, vide communication dated 28.02.2019 in C.NO.M1/8577/2018 addressed to the 1st respondent, had also brought to the knowledge of the 1st respondent that on account of Mahouts changing frequently and that the health register related to regular medical checkup of mahouts were also not presented before the Inspection Team and further, taking into consideration that the Elephant Care Infrastructure of the 5th respondent was also found to be lacking from security point of view, especially, the absence of well defined fencing and prevention of entry of outsiders and also the reasons noted in the said communication, noted that the recommendations of the DLCEWC may be accepted and the three female captive elephants may be shifted to http://www.judis.nic.in 45 W.P.No.6030 of 2019 MR Palayam Elephant Rescue and Rehabilitation Centre, Trichy or to Alagapuram Elephant Shelter area, Kurumbapaty, Salem.
40. It is to be noted at this juncture that admittedly, the elephant care facility of the 5th respondent in which the three female captive elephants owned by the 4th respondent are kept in temporary custody, has not been recognised.
41. The Tamil Nadu Captive Elephants [Management and Maintenance] Rules, 2011, are having a statutory backup as the said rule came to be formulated in exercise of powers conferred under section 64[2][f] of the Wildlife Protection Act, 1972 [Central Act 53/1972]. Rule 15 [extracted supra] says that ''there shall be a Welfare Committee at the State Level and at the District Level'' and sub-rule [3] of Rule 15 says that ''the District Level Committee shall inspect the records maintained under the Captive Elephants Rules and send a Report to the State Level Committee for its recommendation and the District Level Committee shall review the welfare and maintenance of the elephants, once in three months'' and in accordance with the same, DLCEWC has caused inspections on various occasions and having noted deficiencies with regard to maintenance and http://www.judis.nic.in 46 W.P.No.6030 of 2019 also security point of view, made a positive recommendation for shifting of the three female captive elephants to MR Palayam Elephant Rescue and Rehabilitation Centre, Trichy, which is maintained by the Forest Department of the Government of Tamil Nadu.
42. The primordial submission made by the learned Senior Counsel appearing for the 5th respondent is that while the three female captive elephants were under the care and custody of the 4th respondent – Mutt, chains and restrictive devices have been used which caused cruelty to the elephants and now, the elephants are maintained in a chain-free environment with proper care and protection. In short, it is the submission of the learned Senior Counsel for the 5th respondent that the chain or restrictive devices, cannot be used and the captive elephants should have free movement, so as to make them feel comfortable as if they are in natural environment.
43. It is to be noted at this juncture that elephants are heavy wild animals and the age old / time tested practice to tame the elephants is to put them in kraal.
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44. A Division Bench of this Court [One of us (M.Sathyanarayanan,J.) is a party], in the order dated 25.09.2013 in WP.No.24189/2013 [E.Seshan Vs, Union of India and Others] had dealt with the issue relating to translocation and release of wild elephants which caused loss to human lives and property and while dealing with the said Public Interest Litigation, also dealt with the issue as to the keeping of the captive elephants in kraal and in paragraph No.11 of the said order, also taken into consideration the submission made by the learned Special Government Pleader that the keeping of the captured elephants in kraal is an age-old and time tested procedure/practice to keep wild animals so that they will be tamed and thereafter, will be taken out and kept in elephant camps during night hours and will be released in the forest in the morning.
45. Admittedly, in the case on hand, the three female captive elephants have not been kept in kraal while they were in the care and custody of the 4th respondent and however, chains / restrictive devices have been put. It is also the submission of the learned Senior Counsel appearing for the 5th respondent that restrictive devices such as chains, cannot be put at all and the three elephants which are under the care and custody of the 5 th respondent, have not been put on any restrictive devices. http://www.judis.nic.in 48 W.P.No.6030 of 2019
46. Admittedly, the elephants are wild animals and are huge and their behavioural pattern in certain events and circumstances, cannot be predicted and when they turn wild or violent, it will be extremely difficult to control and cajole them. This Court can also take judicial notice of the fact that sometimes, elephants which are in captivity and under the control of Mahouts and Cavadys, have turned violent and killed Mahouts though they were closely associated with the said elephants for very many years and putting the restrictive devices such as chains is to ensure safety and also to avoid human casualty and loss of property. Such a practice also not prohibited under the Captive Elephants Rules 2011 for the reason that Clause 5G to Annexure II speaks about the Restraint Devices and therefore, it cannot be said that chains, ropes and other restraint devices cannot be used at all. However, at the same time, such kind of restraint devices should not contain any sharp edged materials or any other thing, which causes pain, discomfort and injuries to the elephants.
47. It is a well settled position of law that when a Statute prescribes a thing to be done in a particular manner, it should be done only in that way and not in any other manner.
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48. In the light of the Captive Elephants Rules 2011, it cannot be said that the Forest Department of the Government of Tamil Nadu lacks necessary jurisdiction to take a call on the welfare and maintenance of captive elephants and DLCEWC, after causing number of inspections, made a positive recommendation that the captive elephants should be shifted to MR Palayam Elephant Rescue and Rehabilitation Centre, Trichy,
49. It is also the submission of the learned Senior counsel appearing for the 5th respondent with regard to the deficiencies pointed out by DLCEWC that the 5th respondent have not been put on notice and drawn the attention of this Court to the written submissions, wherein point by point rebuttal has been given. This Court has already noted that the 1st respondent, vide communication dated 04.10.2017, has intimated the deficiencies pointed out by DLCEWC to the Chairperson of the 5th respondent as well as to the 4th respondent/Mutt and as such, it cannot be said that the 5 th respondent have not been put on notice as to the negative observations / deficiencies noted by the said Statutory Committee.
50. Admittedly, the 4th respondent alone is having necessary permission / authorisation to keep the three female captive elephants and in http://www.judis.nic.in 50 W.P.No.6030 of 2019 their counter affidavit, took a stand that they voluntarily handed over the elephants for a short period as they did not have the required medical care and support facility to maintain the three elephants.
51. It is relevant to extract the letter dated 10.09.2015 sent by the 4 th respondent to the 1st respondent:-
Date: 10.09.2015 “The Principal Chief Conservator of Forests & Chief Wildlife Warden, Government of Tamilnadu, Panagal Building, Saidapet, Chennai-600 015.
Subject: Request to kindly grant permission to transport elephants named 'Sandhya', Indu' and 'Jayanthi'from Kanchipuram to WRRC Karnataka or Tamil Nadu for Veterinarian care and specialised treatment in natural surrounding and long term care – Reg.
Respected Sir, As Srikaryam & Agent of Sri Kanchi Kamakoti Peetam Jagadguru Sankatacharya Swamigal Mutt, Kanchipuram, I am writing to your kind self regarding the transfer and transport of following 3 female elephants.
1.Sandhya Age-39, female elephant, onwership No.6/99, dated 18.11.1999, Micro Chip No.00065F40EC, housed in Shri Kamakshi Amma Temple, Kanchipuram.
2.Indu, Age-30, female elephant, ownership No.3/2001 dated 20.06.2001, Micro Chip No.00063D11B7, housed in Shri Kamakshi Amma Temple, Kanchipuram.
http://www.judis.nic.in 3. Jayanthi, Age-18, Female Elephant, Ownership No.4 dated 51 W.P.No.6030 of 2019 22-10-2001, housed in Shri Kamakshi Amma Temple, Kanchipuram.
Based on the various veterinarian's inspections. It has been suggested that the elephants need long term medical treatment and specialised care, in a natural surrounding and since the 3 elephants are very attached to each other we wish to send them together to the same place for their care. We, the Mutt authorities have, after deliberation, decided to send the elephants to Wildlife Rescue and Rehabilitation Centre (WRRC) located either in Mallur, Karnataka or Tamil Nadu.
The Mutt authorities have jointly decided that as we do not have the facility and provision for required specialised medical treatment and facility for care in natural surrounding, we request you to kindly grant the necessary permission for the transportation of the above said elephants where they will be able to receive the necessary case.
Thanking You, Yours Sincerely, V.Viswanathan, Srikaryam & Agent.”
52. The 4th respondent has also made a request for renewal of the ownership documents in respect of the three female captive elephants and the same is pending consideration. Admittedly, the three female captive elephants were handed over to the Elephant Care Facility of the 5th respondent only as a temporary measure, vide proceedings of the 1 st respondent and the said period also came to an end during January 2018 itself.
http://www.judis.nic.in 53. The respondents 5 and 6 are unable to point out any infraction of 52 W.P.No.6030 of 2019 the Wildlife Protection Act, 1972 and the Captive Elephants Rules, 2011 on the part of the 1st respondent and in the considered opinion of the Court, the Statutory Committee, viz., DLCEWC, which is having a Statutory backing in the light of Rule 15 of the Captive Elephants Rules, 2011, had caused many inspections and having noted that deficiencies continue to exist, made a positive recommendation for shifting of the three female captive elephants to MR Palayam Elephant Rescue and Rehabilitation Centre at Trichy maintained by the Forest Department of the Government of Tamil Nadu and it cannot be faulted with.
54. The elephants are gentle giants and they should be treated with love, affection and compassion and it appears that on account of prolonged captivity, the elephants have developed some health complications. The three female captive elephants, right from their tender age, are together and therefore, all the three elephants shall be kept together in the Elephant Care Facility at MR Palayam Elephant Rescue and Rehabilitation Centre at Trichy and the authority shall ensure that they should be given best health care facilities and as far as possible, make them feel that they are in natural surroundings and environment.
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55. In the light of the above facts and circumstances, the positive recommendation as to the translocation of the three female captive elephants from the temporary custody of the 5th respondent to the Elephant Care Facility at MR Palayam Elephant Rescue and Rehabilitation Centre at Trichy, cannot be faulted with.
56. In the result, the writ petition is disposed of and the State Level Committee, in the light of the recommendation made by the District Level Captive Elephants Welfare Committee, Villupuram, shall take appropriate action as to the translocation / transfer of the three female captive elephants from the elephant care facility of the 5th respondent to the Elephant Care Facility at MR Palayam Elephant Rescue and Rehabilitation Centre at Trichy, within a period of four weeks from the date of receipt of a copy of this order and on such transfer/translocation, the said Entity / Elephant Care Facility at MR Palayam Elephant Rescue and Rehabilitation Centre at Trichy, shall comply with the Tamil Nadu Captive Elephants [Management and Maintenance] Rules, 2011. It is once again made clear that the three elephants shall be kept together in the said facility. The first respondent shall also file periodical Status Reports before this Court. In the circumstances of the case, there shall be no order as to costs. Consequently, http://www.judis.nic.in 54 W.P.No.6030 of 2019 the connected miscellaneous petition stands closed.
Call on 31.10.2019 for the Status Report of the first respondent.
[M.S.N., J.] [N.S.S., J.] 19.09.2019 Index : No Internet : Yes Jvm/Ap To
1.Principal Chief Conservator of Forests & Chief Wildlife Warden, Department of Forests, Govt. of Tamil Nadu, No.1, Jeenis Road, Panagal Buildings, Saidapet, Chennai-600 015.
2.Commissioner, Hindu Religious & Charitable Endowments Department, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai-600 034.
3.Central Zoo Authority, B-1 Wing, 6th Floor, Pt.Deenadayal, Antyodaya Bhawan CGO Complex, Lodhi Road, New Delhi-110 003.
Copy to:-
http://www.judis.nic.in 55 W.P.No.6030 of 2019
1.The District Forest Officer and Member Convener District Captive Elephant Welfare Committee Near Circuit House, Master Plan Complex, Villupuram.
2.The Chairperson State Level Captive Elephant Welfare Committee/ Chief Conservator of Forests & Chief Wildlife Warden, Department of Forests, Govt. of Tamil Nadu, No.1, Jeenis Road, Panagal Buildings, Saidapet, Chennai-600 015.
3.The Animal Welfare Board of India 13/1, 3rd Seaward Road, Valmiki Road, Tiruvanmiyur Chennai 600 041.
4.The Secretary Union of India Ministry of Environment, Forest and Climate Change, Project Elephant Division Government of India Indira Pariyavaran Boag Road, New Delhi 110 003.
http://www.judis.nic.in 56 W.P.No.6030 of 2019 M.SATHYANARAYANAN, J., and N.SESHASAYEE, J.
Jvm/Ap Order in W.P.No.6030 of 2019 19.09.2019 http://www.judis.nic.in 57