Madras High Court
Arulmigu Mariamman Temple vs The Chief Wildlife Warden on 18 June, 2019
Author: Anita Sumanth
Bench: Anita Sumanth
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.06.2019
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.[MD]No.10295 of 2015
and M.P.[MD]No.2 of 2015
Arulmigu Mariamman Temple,
Samayapuram,
Trichy District,
Rep. by its Executive Officer. ... Petitioner
Vs.
1.The Chief Wildlife Warden,
Panagal Palace,
Saidapet,
Chennai.
2.The District Forest Officer,
The District Forest Court Office,
Court Complex, Trichy,
Trichy District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying for the issuance of a Writ of Certiorari, calling for
the records related to the proceedings of the second respondent in
Na.Ka.No.4456/2014Ku dated 27.10.2014 and quash the same.
For Petitioner : Mr.K.Govindarajan
For Respondents : Mr.S.Angappan
Government Advocate
http://www.judis.nic.in
2
ORDER
An interesting issue arises in this case. The petitioner is the Arulmigu Mariamman Temple, Samayapuram (in short 'Temple') and challenges an order passed by the second respondent / District Forest Officer dated 27.10.2014, calling upon the Temple authorities to hand over the Tusks that they hold in their possession of an elephant by name Mariappan, who was rendering duties as Temple elephant therein.
2.Mariappan had been purchased by the Temple authorities under G.O.Ms.No.246 dated 26.07.1995 for a sum of Rs.1,45,000/-. Certificate of ownership in Form No.13 had been issued by the Office of the Chief Conservator of Forests and Chief Wildlife Warden, certifying that the Executive Office of the Temple has, under his control / custody and / or possession, the elephant. The ownership of Mariappan by the Temple is not in dispute.
3.The elephant was in continuous possession of the temple till 2011. I am told that the practice followed in such matters is that when the elephant attains old age necessitating special care and maintenance, the Temple hands over the elephant to the Forest http://www.judis.nic.in 3 Department, which is better positioned to give such specialised attention. So too in this case, vide G.O.Ms.No.35 dated 15.02.2008, Mariappan was handed back to the forest department and placed along with other similarly placed elephants in an elephant camp.
4.In the course of his stay in the Temple his tusks required trimming, since the tusks continue to grow during the elephants' life time. The excess growth was 20 cm length and 11.5 cm girth in the right tusk and 20 cm length and 11.5 cm girth in the left tusk and these were trimmed and retained by the Temple.
5.According to the respondents, these tusks constitute a 'Trophy' as defined under the Wild Life Protection Act, 1972, [in short 'Act'] specifically Section 2 (31) and cannot be in the possession of the petitioner. It is the respondents who are the authorised entities to hold possession of the Trophies and hence, the respondent would urge that the Temple authorities be directed to return such Trophies to it.
6.Per contra, learned counsel for the petitioner would argue that the Temple is the owner of the animal having purchased http://www.judis.nic.in 4 the same from the forest department under a valid certificate of ownership. As such, there is no necessity to hand over the tusks to the respondents as the same are being maintained in a proper manner. Learned counsel for the petitioner also specifically confirms that the tusks will continue to be maintained in a proper condition and there would be no abuse or misuse of the same.
7.Having heard both the learned counsel, I am of the view that the provisions of the Act do not support the stand of the respondents. The import of the Act is to ensure that wild animals are protected and the ecological and environmental security of the country is maintained and augmented. It is with this object in mind that the provisions of the Act should be interpreted and viewed.
8.The respondents rely on the provisions of Section 2(31), which defines a Trophy. Section 39(1)(b) states that 'Every animal article, trophy or uncured trophy or meat derived from any wild animal in respect of which any offence against this act or any rule or order has been committed, shall be the property of the State Government and where such animal is being hunted in a sanctuary or National Park declared by the Central Government, such animal or any article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel, weapon, trap or tool used for such hunting shall be the property of the Central Government.' http://www.judis.nic.in 5
9.Section 39 (3) states that no person shall acquire or keep in his possession / custody or control such Government property without permission being received from the Chief Wild Life Warden or the authorised officer in that regard. Section 40 (2A) stipulates that no person shall acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy except if he holds a certificate of ownership in this regard. The provisions of Section 44(2) refer to a manufacturer or dealer in animal articles and the provisions of Section 44(6) states that any license granted for trophies and animal articles shall only be valid for one year.
10.On a combined reference to all these sections, the attempt of Mr.Angappan, is to state that the animal tusks that are now in the possession of Temple would constitute a Trophy and they should be handed over to the respondents as the Temple has no authority under the Provisions of the Act to continue to hold or possess them. I do not agree for the reason that the Trophy cannot be seen in isolation from the temple elephant which was, purchased admittedly by the Temple authorities and in respect of whom the Temple was issued a valid certificate of ownership. http://www.judis.nic.in 6
11.Now doubt Mariappan has been handed over to the Forest Officer for proper care. This is for reasons of logistics, bearing in mind the advanced age of the elephant, and the fact that the Temple authorities will neither have the capacity for specialised care required nor be in a position to take care of the elephant and guarantee the safety of the devotees. This does not mean that they have handed over their ownership of Mariappan to the respondents but only that they have entrsted him to their care and maintenance.
12.For the aforesaid reasons, I reject the submissions of the respondents to the effect that it is they who are the owners of the elephant and that such ownership would also extend to tusks / trophies.
13.I record the undertaking of petitioner (through counsel) that the tusks will be maintained in proper condition and not misused or abused in any manner.
14.The Temple is one which comes under the aegis of the Hindu Religious & Charitable Endowments department, and the Executive Officer of the Temple has over all control of its activities http://www.judis.nic.in 7 as well as its assets. The HR & CE Act requires a statement of assets and liabilities to be maintained by the Temple and this would no doubt reflect the tusks as well. Thus, by virtue of the Temple being a HR & CE temple, the HR & CE authorities have control over the possession, maintenance and safety of the tusks and will be equally responsible for their upkeep and safety.
15.For the aforesaid reasons, the impugned order directing the Temple authorities to hand over the possession of the tusks is set aside and the writ petition is allowed. The possession of the tusks shall remain with the Temple and the respondents will also ensure by virtue of its status as a HR & CE Temple, their safety. No costs. Consequently, connected miscellaneous petition is closed.
18.06.2019
Index :Yes/No
Internet : Yes/No
MR
http://www.judis.nic.in
8
To
1.The Chief Wildlife Warden,
Panagal Palace,
Saidapet,
Chennai.
2.The District Forest Officer,
The District Forest Court Office,
Court Complex, Trichy,
Trichy District.
http://www.judis.nic.in
9
DR.ANITA SUMANTH, J.
MR
W.P.[MD]No.10295 of 2015
18.06.2019
http://www.judis.nic.in