Suresh Babu.P.C vs State Of Kerala on 13 April, 2023

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Kerala High Court

Suresh Babu.P.C vs State Of Kerala on 13 April, 2023

The petitioners, who are devotees of Ithithanam Elamkavu Temple, which is a public temple in Kurichi Village in Changanassery Taluk, which is governed by the provisions under Ext.P1 registered trust deed dated 19.01.1960, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 proceedings dated 10.03.2023 of the District Monitoring Committee headed by the 2nd respondent District Collector, Kottayam, insofar as it relates to the conduct of Gajamela in Ithithanam Elamkavu Temple. The petitioners have also sought for a writ of mandamus commanding respondents 2 to 5 to consider and take appropriate decision on Ext.P4 series of representations.

2. On 10.04.2023, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 5. Urgent notice on admission by special messenger was ordered to the 6 th respondent, namely, Ithithanam Elamkavu Temple Managing Committee, returnable by 12.04.2023. The learned Senior 4 W.P.(C)No.12688 of 2023 Government Pleader was directed to get instructions with specific reference to the law laid down by this Court in Prema Kumar P. v. Travancore Devaswom Board and others [2022 (6) KHC 90].

3. The 6th respondent entered appearance and filed a counter affidavit dated 11.04.2023, opposing the reliefs sought for in this writ petition, producing therewith Ext.R6(a) registration certificate dated 25.09.2015 issued by the District Monitoring Committee, Kottayam for parading elephants in the temple premises, in connection with temple festival.

4. Heard the learned Senior Counsel for the petitioners, the learned Senior Government Pleader for respondents 1 to 5 and also the learned counsel for the 6th respondent.

5. The issue that arises for consideration in this writ petition is as to whether any interference is warranted in Ext.P5 proceedings dated 10.03.2023 of the District Monitoring Committee headed by the 2nd respondent District Collector, insofar as it relates to the permission granted in connection with Gajamela scheduled to be held on 5 W.P.(C)No.12688 of 2023 23.04.2023 in Ithithanam Elamkavu Temple in Kurichi Village, subject to the conditions contained in the said proceedings for parading the elephants.

6. 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 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 per sub-rule (18) of Rule 4, before any captive elephant is 6 W.P.(C)No.12688 of 2023 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.

7. 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 Festival Committee constituted for the smooth conduct of 7 W.P.(C)No.12688 of 2023 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.

8. 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 Prevention of Cruelty to Animals Act, 1960.

W.P.(C)No.12688 of 2023

9. 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.

10. 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 less than ten thousand rupees. As per the second proviso to 9 W.P.(C)No.12688 of 2023 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.

11. In Prema Kumar P. [2022 (6) KHC 90] this Court held that 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 make the interim orders dated 04.04.2022 and 08.04.2022 absolute, by directing 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 10 W.P.(C)No.12688 of 2023 provided under Section 51 of the Wildlife (Protection) Act. In temples under the management of the Travancore Devaswom Board, all concerned shall scrupulously follow the conditions in Circular No.ROC7199/98 dated 22.10.1998 and proceedings dated 23.10.2000, which are referred to hereinbefore at paragraph 10 and 11, insofar as it relates to the number of elephants paraded in the festivals in the temples under the said Devaswom Board. In temples under Cochin Devaswom Board, Malabar Devaswom Board, Guruvayur Devaswom and also Koodalmanikyam Devaswom, the directions contained in the order dated 04.04.2022, which is made absolute by this judgment, shall be complied with letter and spirit and any person, who contravenes the provisions of the Kerala Captive Elephants (Management and Maintenance) Rules, 2012, while parading elephants in connection with festivals, functions, etc., shall be dealt with appropriately, as provided under Section 51 of the Wildlife (Protection) Act.

12. Ext.P5 order passed by the District Monitoring Committee, insofar as it relates to Gajamela in Ithithanam Elamkavu Temple reads thus;

W.P.(C)No.12688 of 2023

"ഇത്തിത്താനം ഇളംകാവ് ക്ഷേത്രത്തിൽ എല്ലാവർഷവ ം ഏത്രിൽ മാസം 23ന്ാം രീയരി നടത്തിവര ന് ഗജക്ഷമളയ മായി ബന്ധപ്പെട്ട് നിലവിൽ ത്രീ. കണ്ണൻ രി.പ്പക., ത്രീ. സ ക്ഷരഷ് ബാബ രി.സി എന്ിവർ വിവിധ ക്ഷമഖലകളിൽ സമർെിച്ചിട്ട ള്ള രരാരിയ ം ഇര മായി ബന്ധപ്പെട്ട് കത്കംത്ബാഞ്ച് രയ്യാറാക്കിയിട്ട ള്ള റിക്ഷൊർട്ട ം ക്ഷമാണിറ്ററിംഗ് കമ്മറ്റിയിൽ അവരരിെിക്ക കയ ം ആയര് ത്രകാരം ടി കമ്മറ്റിയിൽ ചർച്ചപ്പചയ്യ കയ ം ഉണ്ടായി. വർഷങ്ങളായി ര ടർന് വര ന് നടരടി ത്കമങ്ങള പ്പട ഭാഗമായി ഈ വർഷം ഇത്തിത്താനം ക്ഷേത്രഭാരവാഹികൾ സമർെിച്ച അേയിൽ രറയ ം ത്രകാരം 25 ആനകപ്പള രപ്പെട െിക്ക ന്രിന് അന വാദം നൽക്ഷകണ്ടരില്ലാപ്പയന് ം മ ൻവർഷം അന വദിച്ച ത്രകാരം 22 ആനകപ്പള രപ്പെട െിക്ക ന്രിന ം കമ്മറ്റി സംയ ക്ത രീര മാനം എട ത്തിട്ട ള്ളരാണ്."

13. A reading of Ext.P5 proceedings would show that insofar as the permission sought for parading elephants in the Gajamela in Ithithanam Elankavu Temple is concerned, there was a complaint before the District Monitoring Committee and also the report of the Crime Branch on that complaint. Though the District Monitoring Committee has referred that complaint and report in Ext.P5 proceedings, a proper consideration of those aspects with specific reference to the statutory provisions referred to hereinbefore is absent in the said proceedings. The said aspect of the matter is not in serious dispute, during the course of arguments. It is also not discernible from Ext.P5 proceedings that there was proper consideration of the relevant aspects by the District Monitoring Committee while granting permission to the 6 th 12 W.P.(C)No.12688 of 2023 respondent Temple Managing Committee to parade 22 elephants in the Gajamela scheduled to be held on 23.04.2023. The principles laid down by this Court in Prema Kumar P. [2022 (6) KHC 90] in respect of the temples under the management of the Travancore Devaswom Board have application with equal force in respect of other temples, since the parading of elephants in connection with temples festivals can only be after ensuring strict compliance of the statutory provisions referred to hereinbefore.

14. In Breen v. Amalgamated Engineering Union [1971 (1) All. E.R. 1148] Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.

15. In Ajanta Industries v. Central Board of Direct Taxes (1976 (1) SCC 1001), a Three-Judge Bench of the Apex Court held that, when law requires reasons to be 13 W.P.(C)No.12688 of 2023 recorded in a particular order, affecting prejudicially the interest of any person, who can challenge the order in court, it ceases to be a mere administrative order and the wise or violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. The said decision of the Apex Court was in the context of Section 127(1) of the Income Tax Act, 1961 which empowers the Commissioner of Income Tax to transfer any case from one Income Tax Officer subordinate to him to another, also subordinate to him, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so. After taking note of the corresponding section in the Income Tax Act, 1922, i.e., Section 5(7A), the Apex Court held that, unlike Section 5(7A) of the 1922 Act, Section 127(1) of the 1961 Act requires reasons to be recorded prior to the passing of an order of transfer. However, the impugned order does not state any reasons whatsoever for making the order of transfer. The Apex Court held that, the requirement of recording reasons under Section 127(1) of the 1961 Act is a mandatory direction under the law and noncommunication thereof is not 14 W.P.(C)No.12688 of 2023 saved by showing that the reasons exist in the file although not communicated to the assessee. The Apex Court held further that, the reason for recording of reasons in the order and making those reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even the Apex Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is a mala fide or arbitrary exercise or that, it is based on irrelevant and extraneous considerations.

16. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that Ext.P5 proceedings of the District Monitoring Committee, insofar as it relates to the permission granted for parading 22 elephants in connection with the Gajamela in Ithithanam Elamkavu Temple cannot be sustained in law, since the reasons which weighed the mind of the said Committee while granting permission for parading 22 elephants in connection with Gajamela in the said temple is not discernible from the said proceedings. An order passed by the District Monitoring 15 W.P.(C)No.12688 of 2023 Committee granting permission to parade elephants in connection with a temple festival can be challenged by a person aggrieved, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. An order like Ext.P5 passed by the District Monitoring Committee, which does not disclose reasons, will be of little assistance to this Court while exercising the power of judicial review. Merely for the reason that 22 elephants were permitted to be paraded in connection with the temple festival in Ithithanam Elamkavu Temple for the previous year, the District Monitoring Committee cannot grant permission for parading the very same number of elephants during the current festival. An independent consideration of that aspect, with specific reference to the statutory provisions referred to hereinbefore and also the law laid down in Prema Kumar P. [2022 (6) KHC 90], has to be undertaken by the said Committee, in exercise of its statutory powers, before granting permission to parade elephants in the Gajamela. While granting such permission the Committee has also to ensure that during Gajamela, the elephants cannot be made to raise their heads, applying sticks at their mandible bone, just below the jaw, in 16 W.P.(C)No.12688 of 2023 connection with the right to carry 'Thidambu' in the 'seva' conducted in the evening of 23.04.2023. Though the 6th respondent Temple Managing Committee has raised a contention that the parading of 22 elephants in the Gajamela is the customary practice followed in that temple, from Ext.P2 pamphlet published in connected with temple festival various elephants are sponsored by Yuvajana Samajams, Seva Samithis, etc. In the above circumstances, Ext.P5 proceedings dated 10.03.2023 of the District Monitoring Committee headed by the 2nd respondent District Collector, Kottayam, is set aside and the said Committee is directed to reconsider the request made by the 6th respondent Temple Managing Committee for permission to parade elephants in connection with Gajamela in Ithithanam Elamkavu Temple, which is scheduled to be held on 23.04.2023 strictly in terms of the statutory requirements and also the law laid down by this Court in Prema Kumar P. [2022 (6) KHC 90], after affording an opportunity of being heard to the petitioners and the 6th respondent Temple Managing Committee. A decision in this regard shall be taken, as expeditiously as possible, at any rate, on or before 17 W.P.(C)No.12688 of 2023 19.04.2023. The District Monitoring Committee shall conduct a personal hearing on 18.04.2023 at 11.00.a.m., in which the petitioners and the authorised representative of the 6 th respondent Temple Managing Committee, shall be personally present.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE MIN 18 W.P.(C)No.12688 of 2023 APPENDIX OF WP(C) 12688/2023 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTERED TRUST DEED DATED 19.01.1960 OF ITHITHANAM ELAMKAVU TEMPLE EXHIBIT P2 TRUE COPY OF THE PAMPLET PUBLISHED IN CONNECTION WITH THE TEMPLE FESTIVAL EXHIBIT P3 PHOTOGRAPH TAKEN AT VARIOUS STAGES OF THE PERFORMANCE OF GAJAMELA EXHIBIT P3(A) PHOTOGRAPH TAKEN AT VARIOUS STAGE OF THE PERFORMANCE 'GAJAMELA' EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE 1ST PETITIONER HEREIN AND TWO OTHERS BEFORE THE 2ND RESPONDENT EXHIBIT P4(A) TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE 1ST PETITIONER HEREIN AND TWO OTHERS BEFORE THE 3RD RESPONDENT EXHIBIT P4(B) TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE 1ST PETITIONER HEREIN AND TWO OTHERS BEFORE THE 4TH RESPONDENT EXHIBIT P4(C) TRUE COPY OF THE REPRESENTATION DATED NIL FILED BY THE 1ST PETITIONER HEREIN AND TWO OTHERS BEFORE THE 5TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COMMITTEE DATED 10.03.2023 EXHIBIT R6(A) A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED ON 25.09.2015 BY THE DISTRICT MONITORING COMMITTEE, KOTTAYAM

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