Kerala High Court
P Prema Kumar vs Travancore Devaswom Board - Tdb on 4 April, 2022
Author: Anil K. Narendran
Bench: Anil K.Narendran
WP(C) No.12852/2021 1 / 14
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Monday, the 4th day of April 2022 / 14th Chaithra, 1944
WP(C) NO. 12852 OF 2021(F)
PETITIONER:
P. PREMA KUMAR, THOTTUMKARA MADOM, WESTERN GATE,
AMBALAPPUZHA P.O 688 561
RESPONDENTS:
1. TRAVANCORE DEVASWOM BOARD - REPRESENTED BY ITS SECRETARY,
NANTHANCODE, THIRUVANANTHAPURAM -695 003
2. THE DISTRICT COLLECTOR, ALAPPUZHA- 688 001
3. PRINCIPAL CHIEF CONSERVATOR OF FORESTS (HEAD OF FOREST
FORCE), FOREST HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM -695 014
4. THE DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE,
ALAPPUZHA, KERALA- 688 012
5. COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
THIRUVANANTHAPURAM- 695 003
6. DISTRICT COMMITTEE CONSTITUTED UNDER KERALA CAPTIVE
ELEPHANTS (MANAGEMENT AND MAINTENANCE ELEPHANTS(MANAGEMENT
AND MAINTENANCE RULES), REPRESENTED BY ITS CHAIRMAN AND
DISTRICT COLLECTOR, ALAPPUZHA -688 001
7. G. BAIJU, DEPUTY COMMISSIONER, TRAVANCORE DEVASWOM BOARD,
HARIPPAD- 690 514
8. DR. SASEENDRADEV, RETIRED VETERINARY SURGEON, S/O. PANDIT
NARAYANADEV, SREENIKETHAN, MUTTAMBALAM P.O, KANJIKKUZHI,
KOTTAYAM- 686 004
9. K. MANOJ KUMAR, ADMINISTRATIVE OFFICER, AMBALAPPUZHA
SREEKRISHNA SWAMY TEMPLE, ALAPPUZHA- 688 561
10. PARDEEP, 1ST MAHOUT OF AMBALAPPUZHA VIJAYAKRISHNAN,
AMBALAPPUZHA DEVASWOM, AMBALAPPUZHA- 688 561
11. AJEESH, 2ND MAHOUT OF AMBALAPPUZHA VIJAYAKRISHNAN,
AMBALAPPUZHA DEVASWOM, AMBALAPPUZHA- 688 561
Writ petition (civil) praying inter alia that in the
circumstances stated in the affidavit filed along with the WP(C)
the High Court be pleased to direct the respondents 1 & 6 to
produce all the records relating to the management, maintenance
and death of the tusker Ambalappuzha Vijayakrishnan including
the report of the Forest department on the death of the tusker
containing the post mortem certificate forthwith pending
disposal of the Writ Petition.
This petition coming on for orders upon perusing the
WP(C) No.12852/2021 2 / 14
petition and the affidavit filed in support of WP(C) and upon
hearing the arguments of M/S R.KRISHNA RAJ, E.S.SONI & KUMARI
SANGEETHA S.NAIR Advocates for the petitioners, SRI.G.BIJU,
STANDING COUNSEL for the respondent 1 & 5 and of GOVERNMENT
PLEADER for the respondents 2,3,4 & 6, M/S.K.R.SUNIL, AISWARYA
VENUGOPAL, KRISHNA SURESH & EASHWARY.V ADVOCATES for the
respondent 7, SRI.N.MAHESH,ADVOCATE for the respondent
8, M/S.K.SASIKUMAR & S.ARAVIND, ADVOCATE for the respondent 9
and of SRI.T.P.PRADEEP & SMT.MINIKUMARY M.V. Advocates for the
respondent 11,the court passed the following:
WP(C) No.12852/2021 3 / 14
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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W.P.(C)No.12852 of 2021
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Dated this the 4th day of April, 2022
ORDER
Anil K. Narendran, J.
The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking an order to constitute a high level committee to enquire into the death of an elephant by name 'Ambalapuzha Vijayakrishnan' owned by the 1st respondent Travancore Devaswom Board, which died on 08.04.2021. The petitioner has also sought for a writ of mandamus commanding the 1st respondent Board to initiate strict action against respondents 7 to 11 for the unnatural death of the said elephant; and a writ of mandamus commanding the 1st respondent Board to appoint qualified Veterinary Surgeons.
2. On 29.06.2021, when this writ petition came up for admission, this Court admitted the matter on file. The learned Standing Counsel for Travancore Devaswom Board took notice for respondents 1 and 5. The learned Government Pleader took notice for respondents 2 to 4 and 6. Notice to respondents 7 to 11 was dispensed with. Thereafter, by the order dated 14.09.2021, this Court issued notice by speed WP(C) No.12852/2021 4 / 14 W.P.(C)No.12852 of 2021 2 post to respondents 7 to 11.
3. On 30.11.2021, the 3rd respondent Principle Chief Conservator of Forests (Wildlife) and the Chief Wildlife Warden, Kerala has filed a counter affidavit, wherein it is stated that, in connection with the unnatural death of the elephant 'Ambalapuzha Vijayakrishnan' (Microchip No. 00065DE38C), aged 52 years, a three member special team was constituted vide Ext.R3(b) proceedings dated 09.04.2021, which submitted Ext.R3(c) report dated 02.07.2021. The findings of the special team in Ext.R3(c) report are as follows;
"1) The first mahout Sri. B. Pradeep of TDB melted cruelty to "Vijayakrishnan" by torturing, and not providing adequate medical treatment for "Vijayakrishnan", which resulted in his death. Action to be initiated against the said mahout under the Wildlife (Protection) Act, 1972 and Kerala Captive Elephants (Management and Maintenance) Rules, 2012.
2) TDB officials namely, Sri. Baiju, Deputy Devaswom Commissioner, Harippad, Sri. K. Jayakumar, Asst.
Devasom Commissioner, Sri. K. Manoj Kumar, Administrative Officer, Ambalappuzha Temple, Sri. Ajeesh, Second Mahout, and Dr. Dr. Saseendradev Veterinarian engaged by TDB on contract basis erred in providing adequate protection and care for the elephant and hence departmental action has be WP(C) No.12852/2021 5 / 14 W.P.(C)No.12852 of 2021 3 initiated against them by the TDB authorities.
3) The Assistant Conservator of Forests, Social Forestry, Alappuzha to include in his investigation the allegations that the first mahout used to bring his friends for showing how to tame the elephant "Vijayakrishnan" by beating him and also the problems between the first mahout and the former mahout Sri. Gopan.
4) Dr. Saseendradev has reported to the Devaswom Commissioner on 11.03.2018 that some of the mahouts of TDB are drunkards and are showing dereliction in care and maintenance of the elephants owned by TDB. TDB to conduct enquiry and take suitable action.
5) The elephants of TDB are continuously paraded for the festivals in the temples of TDB without rest and this has resulted in deterioration of the health of the elephants leading to death. Hence TDB to restrict the parading of the elephants to important festivals alone.
6) The Veterinary officers of the Forest Department may be entrusted to cross verify the fitness certificate for elephants as instances of issuing fitness certificates without examining the elephants were noticed.
7) Officers of the Social Forestry wing to inspect the registers of the elephants to ensure that the registers are properly updated.
8) Many of the mahouts of TDB are not having proper training or skill to maintain and care elephants and hence they may be given training by the Social Forestry wing."
WP(C) No.12852/2021 6 / 14W.P.(C)No.12852 of 2021 4
4. In Wildlife Crime (O.R.No.1 of 2021) registered on 17.01.2022 by the office of the Social Forestry Range Office, Alappuzha, in relation to the unnatural death of the elephant 'Ambalapuzha Vijayakrishnan', respondents 7 to 10 herein are arrayed as the accused. In the additional affidavit filed by the 3rd respondent it is sated that, the 10th respondent herein, who was the 1st mahout of the tusker 'Ambalapuzha Vijayakrishnan', has not been arrested, since he is absconding.
5. The 7th respondent Deputy Devaswom Commissioner has filed a counter affidavit dated 30.11.2021, wherein it is sated that, the local custodian of the elephant 'Ambalapuzha Vijayakrishnan, is the Sub Group Officer, Padanayarkulangara Devaswom. Respondents 10 and 11, who were the 1st and 2nd mahouts, without obtaining any permission, took the elephant to Thrippangott Devaswom. When it was informed to the office of the 7 th respondent, he immediately directed the Sub Group Officers concerned to return the elephant to Ambalapuzha. From 04.04.2021 onwards, the elephant was not taking any food. Immediately, the 7th respondent informed the Veterinary Surgeon to WP(C) No.12852/2021 7 / 14 W.P.(C)No.12852 of 2021 5 examine the elephant. Accordingly, the doctors examined the elephant and treated it with medicines. However, on 08.04.2021, the heath condition of the elephant became worse and it died.
6. The party respondents, namely, respondents 9 and 11 have filed individual affidavits.
7. The learned Standing Counsel for Travancore Devaswom Board has filed a statement on behalf of respondents 1 and 5, opposing the reliefs sought for in this writ petition, wherein it is stated that, though the elephant 'Ambalapuzha Vijayakrishnan' had some injuries, which were not serious enough to cancel the programmes. Constant attention, care and treatment has been given to the elephant. However it died on 08.04.2021, at the age of 52 years. The Board has already conducted an enquiry by its Vigilance Wing, by an officer of the rank of Superintendent of Police. The Board has also initiated steps against the officials found to be involved in dereliction of duty as disclosed in the enquiry. In addition to that, the Forest Department is also investigating the cause of death of the elephant.
8. Having considered the pleadings and materials on WP(C) No.12852/2021 8 / 14 W.P.(C)No.12852 of 2021 6 record and also the submissions made by the learned counsel on both sides, we find that an interim order to ensure strict compliance of the provisions of Kerala Captive Elephants (Management and Maintainance) Rules, 2012 by all concerned is highly essential.
9. The aforesaid Rules is one made by the State, in exercise of the powers conferred by sub-section (2) of Section 64 of the Wildlife (Protection) Act, 1972 and in supersession of the Kerala Captive Elephants (Management and Maintenance) Rules, 2003. Rule 4 of the said Rules deals with upkeep and veterinary care of the elephant. As per sub-rule (1) of Rule 4, for taking care of each elephant, the owner thereof shall engage a mahout having at least three years of experience in managing an elephant. As per sub-rule (17) of Rule 4, while issuing medical certificate, the Veterinary Doctor should verify the original documents such as ownership certificate of the elephant, (if received from forest department) microchip certificate, insurance certificate and original elephant data book to ensure the correctness. The Veterinary Doctor shall issue the health certificate of the elephant in the prescribed format shown as Appendix I. As WP(C) No.12852/2021 9 / 14 W.P.(C)No.12852 of 2021 7 per sub-rule (18) of Rule 4, before any captive elephant is transported from one place to another, the Veterinary Doctor shall inspect the elephant and issue a Fitness Certificate in the form given in Appendix II.
10. Rule 10 of the said Rules deals with the constitution of District Committee. As per sub-rule (1) of Rule 10, a District Committee shall be constituted by the District Collector to deal with cases of cruelty meted out to captive elephants. The District Collector shall be the Chairman of that Committee and the Divisional Forest Officer shall be its Convener. The Committee shall consists of the members enumerated in clauses (3) to (9) of sub-rule (1) of Rule 10. As per sub-rule (2) of Rule 10, the District Committee shall meet before the festival season, preferably in the month of October and take necessary measures to ensure welfare of elephants and public safety. As per sub-rule (3) of Rule 10, the District Committee shall take steps to discourage the growing tendency of increasing the number of elephants in existing traditional festivals and introducing elephants in new festivals. As per sub-rule (4) of Rule 10, the District Committee shall take necessary measures, to ensure that the WP(C) No.12852/2021 10 / 14 W.P.(C)No.12852 of 2021 8 Festival Committee constituted for the smooth conduct of festivals or the persons organizing such functions in which elephants are exposed, shall adhere to the matters enumerated in clauses (i) to (xviii). As per clause (i) of sub- rule (4), there shall be sufficient space between elephants used in processions and parades. As per clause (ii) of sub-rule (4), no elephant in musth shall be used in connection with festivals. As per clause (iii) of sub-rule (4), elephant which is sick, injured, weak or pregnant shall not be used.
11. In Sree Kumar v. Travancore Devaswom Board [2005 (1) KLT 43], in the context of the Kerala Captive Elephants (Management and Maintenance) Rules, 2003, a Division Bench of this Court held that the Travancore Devaswom Board is the custodian of the animals which are entrusted by the devotees with the fervent hope and expectation that they will be looked after well. These animals are in a way offerings to the deities. Therefore, it is the paramount duty and responsibility of the Board to take proper care of these animals at all costs. If the animals are not looked after well, necessarily it will amount to cruelty to them. This, in turn, will attract the provisions of the WP(C) No.12852/2021 11 / 14 W.P.(C)No.12852 of 2021 9 Prevention of Cruelty to Animals Act, 1960.
12. Section 51 of the Wildlife (Protection) Act, 1972, deals with penalties. As per sub-section (1) of Section 51, any person who contravenes any provision of this Act (except Chapter VA and section 38J) or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to three years or with fine which may extend to twenty-five thousand rupees or with both.
13. As per the first proviso to sub-section (1) of Section 51 of the Act, where the offence committed is in relation to any animal specified in Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be WP(C) No.12852/2021 12 / 14 W.P.(C)No.12852 of 2021 10 less than ten thousand rupees. As per the second proviso to sub-section (1) of Section 51, in the case of a second or subsequent offence of the nature mentioned in this sub- section, the term of imprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less than twenty-five thousand rupees.
14. The Kerala Captive Elephants (Management and Maintenance) Rules, 2012 is one made by the State in exercise of the powers conferred by sub-section (2) of Section 64 of the Wildlife (Protection) Act, 1972. In view of the statutory provisions referred to hereinbefore and also the law laid down by this Court in Sree Kumar [2005 (1) KLT 43] we deem it appropriate to direct all concerned to ensure strict compliance of the provisions under the Kerala Captive Elephants (Management and Maintenance) Rules, 2012, while parading elephants in connection with temple festivals, functions, etc. The provisions under Rule 10 of the said Rules shall be complied with in letter and spirit by all concerned and any person, who contravenes the provisions of the said Rules, shall be dealt with appropriately, as provided under Section 51 of the Wildlife (Protection) Act.
WP(C) No.12852/2021 13 / 14W.P.(C)No.12852 of 2021 11
15. The learned Standing Counsel for Travancore Devaswom Board shall get instructions as to the criteria that has been followed while allotting elephants for festivals in the temples under the management of the Board, since parading of large number of elephants is the practice followed during annual festival in most of the major temples under the Devaswom.
List on 08.04.2022.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE MIN 04-04-2022 /True Copy/ Assistant Registrar WP(C) No.12852/2021 14 / 14 APPENDIX OF WP(C) 12852/2021 Exhibit R3(b) TRUE COPY OF THE PROCEEDINGS ORDER NUMBER KFDFHQ/1427/2021/WL-13 DATED 09/04/2021. Exhibit R3(c) TRUE COPY OF THE REPORT VIDE LETTER NO.K4-1219/21 DATED 02/07/2021.