Bombay High Court
Earth Brigade Foundation (Ebf), Mumbai ... vs The State Of Maharashtra, Thr. Dept. Of ... on 6 September, 2018
Author: M. G. Giratkar
Bench: B.P. Dharmadhikari, M. G. Giratkar
1 cao 1624.18 & wp 5792.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Civil Application (CAO) No. 1624 of 2018
in
Public Interest Litigation No. 69 of 2017
(Dr. Jerryl Avinash Banait Vs. State of Maharashtra through its Principal Secretary, Department
of Forest and ors.)
and
Writ Petition No. 5792 of 2018
(Earth Brigade Foundation (EBF) through its Director Dr. P. V. Subramaniam, Office At Deonar,
Mumbai Vs. The State of Maharashtra through Department of Revenue & Forests and ors.)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri T. D. Mandlekar with Shri Rohan Malviya, Advocates for the
petitioner/applicant in CAO 1624/18
Shri A. B. Moon, Advocate for the petitioner in WP 5792/18
Shri K. N. Shukul, Advocate for the respondent nos. 1 and 2
Shri N. R. Patil, AGP for the State
Ms. M. R. Chandurkar, Advocate for the respondent no. 6 in PIL
CORAM : B. P. DHARMADHIKARI AND
M. G. GIRATKAR, JJ.
DATE : 6/9/2018 Civil Application No. 1624/2018 is taken out in PIL No. 69/2017 by petitioner Dr. Jerryl Banait who has also approached this Court earlier in similar matters. He has challenged the order dated 4-9-2018 issued by the respondent no. 2 under Section 11(1) of the Wild Life Protection Act, 1972 permitting shoot at sight of the so called problem tigress T-1 and capture her two cubs.
2. Writ Petition No. 5792/2018 is preferred by a NGO, Earth Brigade Foundation through Advocate Shri Moon ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 2 cao 1624.18 & wp 5792.18.odt for identical reliefs.
3. Advocate Mandlekar and Advocate Moon on behalf of the petitioners while challenging order dated 4-9-2018 invited our attention to previous orders dated 21-2-2018 and 2-2-2018 passed by this Court. They state that the very same tigress formed subject matter of consideration then and on 21-2-2018, this Court permitted respondents to continue efforts to tranquilize the tigress. Because of peculiar situation and young cubs, this Court also directed Department to take necessary precautions so as to protect their life. Before that on 2-2-2018, this Court had directed production of necessary records and while adjourning the matter, allowed Department to continue efforts to tranquilize or capture tigress T-1.
4. When this Court passed orders on 2-2-2018 or 21-2-2018, orders issued on 29-1-2018 against tigress T-1 were questioned. Those orders were to operate for a period of one month and that period expired when matter was being looked into by this Court. Thereafter fresh orders were passed by the Principal Chief Conservator of Forests on 27-2-2018 which permitted only tranquilization ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 3 cao 1624.18 & wp 5792.18.odt of said tigress. This order continued in force till passing of impugned order on 4-9-2018.
5. Respective counsel for petitioners therefore state that the respondents got period of more than 7 months to tranquilize or capture the so called problem tigress or its cubs. The order dated 4-9-2018 is, therefore, unsustainable. Our attention is also invited to the fact that instances dated 4-8-2018, 11-8-2018 and 28-8-2018 in which it is claimed that tigress T-1 has killed 3 human beings are used to justify the action. Standard Operating Procedure (SOP) is being pressed into service to urge that essential requests therein are not adhered to and hence determination of tigress T-1 as a problem tigress is unsustainable. On the same grounds, separate direction issued to tranquilize and capture cubs is also questioned.
6. Our attention has been invited to the observations contained in judgment dated 12-10-2017, particularly, paragraph no. 14 to 16 to substantiate the contentions.
7. Effort of petitioners is to show that extra precaution taken in SOP before declaring the tiger as 'man-eater' has ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 4 cao 1624.18 & wp 5792.18.odt not been followed and had all filters been applied, the direction to shoot at sight would not have been issued.
8. Advocate Shri Shukul on the other hand has supported the order. He has taken us through the said order to urge that facts essential to support the subjective satisfaction of the Chief Wildlife Warden and Principal Chief Conservator of Forests are apparent therein and same are not shown to be false. He has also taken us through relevant clauses of SOP on which petitioners have placed reliance. In an effort to urge that the SOP only suggests and gives guidelines on the basis of which subjective satisfaction can be reached by the Chief Wildlife Warden.
9. In view of these arguments, it will be appropriate to consider the stipulations in SOP. At page no. 73 of PIL at Annexure-II, guidelines for declaring big cats as 'man- eaters' are produced. Suggested steps on loss of human life due to tiger/leopard form part of this Annexure-II. It requires constitution of team for technical guidance and monitoring on day to day basis. The team is to consist of a nominee of the Chief Wildlife Warden, a nominee of the ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 5 cao 1624.18 & wp 5792.18.odt National Tiger Conservation Authority, a veterinarian, local NGO representative, a representative of the local Panchayat and Field Director/Protected Area Manager/ DFO In-charge as Chairman.
10. It envisages setting up of camera traps near kill sites, besides creating pug mark impression pads to monitor the day to day spatial movement of such tiger. Information is to be given to Revenue Officers to caution inhabitants in the area and to ensure tranquility i.e. to avoid disturbance from mobs/crowds of local people.
11. To establish identity of aberrant animal, camera trappings or direct sightings or pug impressions are specified to be the measures. The guidelines require pug impression, if camera trappings could not be done. It also stipulates collecting pieces of hair/scats of the carnivore for DNA profiling besides above measures. We have looked into this scheme at some length in judgment dated 12-10-2017.
12. Here, contention of petitioners is steps have not been taken and the places at which attacks have taken ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 6 cao 1624.18 & wp 5792.18.odt place are also not properly appreciated.
13. Killings or attacks on 4-8-2018, 11-8-2018 and 28-8-2018 are not in dispute. Perusal of impugned order reveals that at about 9.55 in the night on 4-8-2018, SDPO, Pandharkawada informed DCF, Pandharkawada about missing grazier Gulab. At 6.45 a.m. on 5-8-2018, the field monitoring team along with the brother of Gulab proceeded in search of him in Compartment No. 155 and at about 8.10 a.m., body of Gulab was found in Compartment No. 155.
14. Impugned order mentions that in the morning of 4-8-2018, when field monitoring team was going towards Compartment No. 155, it saw tigress and cubs near tar road proceeding from Vihirgaon to Sawarkheda. This sighting has been accepted as sufficient to establish presence of tigress with cubs in Compartment No. 155. According to respondents, there is another tiger in the area i.e. tiger T-2 but said tiger was trapped in a camera trap in Compartment No. 655 at about 5.47 p.m. This place is at a distance of 7.18 Kms aerial from spot where body was recovered. Impugned order also mentions that ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 7 cao 1624.18 & wp 5792.18.odt 60% body of victim was consumed. The Chief Wildlife Warden has observed that tigress T-1 and cubs sighted in Compartment No. 155 earlier on 4-8-2018 are involved in this human killing.
15. About second incident dated 11-8-2018, it is recorded that on 11-8-2018, one Nana Chayre, grazier sighted two tigers (one of big size and other of small size) on the right side of road while coming to Sawarkheda from Vihirgaon. This presence was confirmed by field monitoring team around 1.07 p.m. with the help of pugmarks which were of size 10 cm x 9 cm. Field staff started evacuating all shepherds/graziers from said area. At 5.45 p.m., the field staff got an information that one person residing at Vihirgaon did not return from Compartment No. 652 where tiger was sighted. Field staff and local people searched and his dead body was recovered at 6.07 p.m. The pugmarks of tigress and cubs were found 186m away from the spot of killing.
16. About the third incident at Village Pimpalshenda, the Chief Wildlife Warden has taken note of fact that on 28-8-2018 at 7.15 p.m., people of that village informed ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 8 cao 1624.18 & wp 5792.18.odt Forest Guard that grazier Nagorao Shivram Junghare did not return home. 17 to 18 people from that village searched for him and his dead body was found at 7.30 p.m. Animal hair samples and swabs from puncture wounds from the victim's body were collected for identifying the animal. Pugmarks were also recorded 30m away from the victim's body. The dimension of pugmarks are also mentioned. Postmortem report of victim mentioned presence of 13 puncture wounds in neck region.
17. Impugned order then proceeds to comment on these three cases occurring within span of 24 days. Because of emergent situation, meeting of monitoring committee for examining above incidents in technical manner, to review the ongoing monitoring system and to analyse evidence in an attempt to identify the responsible animal was held on 31-8-2018 and 1-9-2018.
18. In incident dated 4-8-2018, geo tagged photographs of tiger and cubs, the sighting of animal around the kill site of villager was considered and committee came to the conclusion that tigress T-1 was responsible for the kill. ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 :::
9 cao 1624.18 & wp 5792.18.odt Other tiger in the area, namely, tiger T-2 was then at a distance of about 7 Kms from the spot. In the second incident, committee considered the pugmark evidence available on the day of kill, sighting of animal near that spot and puncture wounds and bite marks around the neck region and concluded that tigress T-1 was responsible for it.
19. In the third case, the committee has looked into pugmarks and fact of sighting of animal around the spot of kill, two different sizes of pugmarks and dimensions of puncture wounds around the neck of victim and again concluded that it was tigress T-1 which was responsible for this kill also.
20. In this backdrop and this consideration by the committee, the previous history has been looked into in paragraph no. 7 of the impugned order. Since 22-7-2017 till 27-1-2018, six human killings have surfaced. DNA analysis report from CCMB, Hyderabad confirmed the kill by tigress T-1 on 16-9-2017 of Shri Satish Kowe. Impact of this finding on present matter cannot be brushed aside. Another human kill dated 27-1-2018 is also mentioned ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 10 cao 1624.18 & wp 5792.18.odt and it is noted that camera trap image at Village, Loni shows presence of tigress T-1 and also the eye witnesses confirmed that tigress T-1 dragged the body after killing the person in agriculture field. The Chief Wildlife Warden has mentioned that because of this material on 29-1-2018, he passed order to capture said tigress and if it was not possible, then to shoot her. The further events are already mentioned by us supra.
21. Six reasons are mentioned why the efforts to tranquilize tigress could not succeed. The Chief Wildlife Warden has specifically mentioned that these difficulties are verified by him personally and he also had discussion about it with field staff.
22. In the light of material in paragraph no. 9, the Chief Wildlife Warden has declared tigress T-1 to be man-eater. He has then noted the landscape, notable wildlife in it such as chital, nilgai, hyena, and about 7 tigers. He observes that the tiger conservation in particular and the wildlife conservation in general therefore needed a long term perspective. The camera trappings and pugmarks proved that tigress T-1 and tiger T-2 were moving in the ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 11 cao 1624.18 & wp 5792.18.odt area where the kills have taken place. Other tiger was not noticed in that area. Because of this material, the Chief Wildlife Warden has also found that there was strong possibility of cubs deviating from hunting of a natural prey and to develop into man-eaters. The resultant situation in that event is described by him as "very scary" and giving rise to human wildlife conflict which would be difficult to manage.
23. In this situation, earlier order dated 27-2-2018 directing capture/tranquilization of tigress T-1 has been cancelled and fresh order has been passed on 4-9-2018. The Chief Wildlife Warden has observed that cubs of said tigress need to be tranquilized and shifted to rescue centre. The steps to tranquilize and capture tigress T-1 are directed to be continued and it is added that in case, such efforts become unsuccessful, the tigress shall be eliminated by shooting to avoid any further loss of human life.
24. The material looked into is not in dispute. Applicant/petitioners have made no effort to refute it. Proceedings of committee which has appreciated that ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 12 cao 1624.18 & wp 5792.18.odt material are also not questioned. Bonafides of the Chief Wildlife Warden are also not challenged. Only the contention is other steps/measures stipulated in SOP ought to have been considered.
25. Impugned order itself mentions reference to DNA analysis in relation to human killing dated 16-9-2017 of Satish Kowe. Here the DNA samples, hair and swabs have been collected on 28-8-2018 only. Considering the fact that three deaths have taken place and the existence of tigress T-1 with cubs is established independently by other evidence, the decision has been reached.
26. SOP to which our attention has been invited only suggests field actions and measures to be adopted. Counsel for respondents have rightly pointed out to us that in suggested steps to be adopted after loss of human life, various possibilities have been only enumerated and the words "besides" and "or" have been used. Various options which may become available in different contingencies are therefore only indicated in SOP. It is an "inclusive" nature of code and cannot be seen as "exhaustive" one. These measures, therefore, show how ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 ::: 13 cao 1624.18 & wp 5792.18.odt the presence of a problem tiger at the sight can be ascertained.
27. We are satisfied that all such material or evidence may not always be available at a single spot. It is, therefore, the honest and bona fide application of mind and subjective satisfaction of the Chief Wildlife Warden which needs to be appreciated. Here, there are 3 killings and independent evidence to establish the presence of tigress T-1 with her cubs in that area. The only other tiger, namely, tiger T-2 is proved to be at a distance of 7 Kms from the spot of kill on that day. These facts and material looked into by the Chief Wildlife Warden is not challenged before us. In this situation, contention that material on record is insufficient or then all evidence has not been gathered or then better evidence could have been gathered are all hypothetical.
28. In exercise of judicial review, we see no case made out for interference in order dated 4-9-2018. There is no jurisdictional error or perversity. Accordingly, writ petition and civil application are dismissed. No costs. ::: Uploaded on - 07/09/2018 ::: Downloaded on - 08/09/2018 01:27:07 :::
14 cao 1624.18 & wp 5792.18.odt
29. Request made by Advocate Shri Mandlekar to maintain status quo as on today for further period of seven days is opposed by Advocate Shri Shukul. We have evaluated the request and we find ourself not in position to accept it, hence, rejected.
Steno copy be granted.
JUDGE JUDGE
wasnik
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