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2010 DIGILAW 131 (KAR)

Compassion Unlimited v. Union of India

2010-02-02

AJIT J.GUNJAL

body2010
Judgment :- The bone of contention between the petitioner and the respondents is an elephant (Tusker). The facts leading to the filing of this writ petition can be summarized as follows: It is not in dispute that the tusker in question which is called Girija Prasad @ Manikantan was of the ownership of respondent No.8. The Certificate of ownership was issued in his favour by the conservator of Forest at Kerala. It appears respondent No.8 made a gift of the elephant in favour of respondent No.7 i.e., Jalahalli Sree Ayyappan Temple Trust. The Transfer of the elephant is pursuant to a gift deed stated to have been executed by respondent No.8 in favour of respondent No.7. It appears there were several complaints as against the temple inasmuch as the temple is housed in a residential locality and the elephant was being treated inhumanly. The Chief Wildlife Warden i.e., 3rd respondent seized the elephant from the temple precincts on grounds of public safety and to prevent any further distress and ill-treatment to the animal. The elephant in question was transferred to the Bannerghatta Forest. The transfer of the elephant to the forest area was questioned by the 7th respondent in W.P.No.49209/2004 seeking to quash the order passed by the Conservator of Forest seizing the elephant on 30.04.2004. The petitioner also filed a writ petition before this Court in W.P.No.7276/2005 for cancellation of the ownership certificate dated 25.02.2002 issued in favour of Jalahalli Sree Ayyappan Temple Trust on the ground that the said Temple Trust did not have the required spare and facilities to maintain an elephant as is to be found in Wild Life Protection Act, 1972. This Court allowed the writ petitioners, remitted the matter to the Principle Chief Conservator of Forest (Wild Life), to take a decision in the matter of the continuity of the custody of the elephant with the Forest Department or should it go back to the temple. Stress is laid on the matter to the following effect: “What is paramount in a case like this is the best interests of the animal and certainly not its owner or any other party.” 2. During this interregnum, the elephant was shifted to Sakkarebailu Forest area in Shimoga. Stress is laid on the matter to the following effect: “What is paramount in a case like this is the best interests of the animal and certainly not its owner or any other party.” 2. During this interregnum, the elephant was shifted to Sakkarebailu Forest area in Shimoga. After the matter was remitted to the Conservator or Forest, it was taken up for adjudication and after hearing both the petitioner as well as the respondents 7 and 8 passed an order indicating that the gift made in favour of the 7th respondent by the 8th respondent is not a valid gift and thus practically revoked the ownership certificate in its favour. Insofar as respondent No,8 is concerned, the Conservator of Forest found that he had lost the ownership certificate and further imposed conditions on Respondent No.8 inasmuch as only on satisfying those conditions, the possession of the elephant can be given to him. The said order is questioned by the NGO, who were parties to the earlier proceedings. 3. Mr.K.G.Raghavan, learned Senior Counsel appearing for the petitioner submits that the impugned order passed by the Conservator of Forest is in violation of the orders passed by this Court in the earlier proceedings, so also the Wild Life Protection Act, 1972. He would press into service certain provisions of the Wild Life Protection Act to buttress his contention that in the absence of an Ownership Certificate, the question of handing over possession of the elephant in favour of 8th respondent would not arise. He further submits that the mandate of this Court as to the welfare of the animal in question is of paramount importance and the ownership is secondary, has not been given due weightage by the Conservator of Forest. 4. Mr.T.V.Vijaya Raghavan, learned counsel appearing for respondents 7 and 8 submits that the very provision on which reliance is placed by the petitioner would come to his aid inasmuch as, a ownership certificate can be issued only if the person who claims ownership. Is in possession of the animal in question. He further submits that the impugned order cannot be faulted inasmuch as there is no blanket order to handover possession of the elephant in favour of the 8th respondent. Is in possession of the animal in question. He further submits that the impugned order cannot be faulted inasmuch as there is no blanket order to handover possession of the elephant in favour of the 8th respondent. It is only on satisfying the conditions imposed, one of them being that a ownership certificate is required to be possession of the elephant and further 8th respondent is required to furnish a Bank Guarantee to the tune of Rs.5,00,000/-. He further submits that the 8th respondents is not in a position to obtain the necessary ownership certificate. The natural corollary would be the elephant would remain in Sakkarebailu Forest. 5. Before adverting to the rival contentions, it is necessary to look into certain provisions of the Wild Life Protection Act,1972 (for short ‘the Act’). Section 40 of the Act would relate to declarations. The declarations are in the nature of being in possession, custody of any captive animal, which is specified in Schedule I of part II of Schedule 11. Sub-Section (2) of Section 40 is in respect of, a person after coming into force of this Act cannot acquire, receive, keep in his control, custody or possession, sell, offer or sale or otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule 11 without the previous sanction in writing of the Chief Wild Life Warden or any Authorized Officer. Sub-Section (2-A) and Sub-Section (2-B) of Section 40 of the Act are inserted pursuant to Act 16/2003 with effect from 01.04.2003. Sub-Section (2-A) would deal with: No person other than a person having a certificate of ownership, shall after the commencement of the Wild Life (Protection) Amendment Act, 2002 shall acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I of Part II of Schedule II, except by way of inheritance. Sub-Section(2-B) also deals with inheritance of any captive animal and such a request is to be made as contemplated under Sub-Section (2-A) within period of ninety days of such inheritance. 6. Indeed a perusal of these two provisions i.e., Sub-Section (2-A) and Sub-Section (2B) of Section 40 of the Act, only Sub-section (2-B) is not applicable to the case on hand. 6. Indeed a perusal of these two provisions i.e., Sub-Section (2-A) and Sub-Section (2B) of Section 40 of the Act, only Sub-section (2-B) is not applicable to the case on hand. Section 42 of the Act would deal with Certificate of ownership in a prescribed form, who according to him is in possession of any wild animal or any animal article, trophy, uncured trophy and may, where possible, mark in the prescribed manner, such animal article, trophy or uncured trophy for purposes of identification. Indeed the proviso to Section 42 would deal with issuance of certificate of ownership in respect of any captive animal, by the concerned authority namely the Chief Wild Life Warden, who is required to ensure that the applicant has adequate facilities for housing, maintenance and upkeep of the animal. 7. Rule 12 of the Declaration of Wild Life Rules, 2008 would consider a situation where, if there is no certificate of ownership granted or obtained is to be treated as a Government Property. Indeed an application for certificate of ownership is required to be given in a particular form as contemplated under Section 48 of the Act. The Rules would also give a format of the necessary application. 8. Indeed in the case on hand, it is to be noticed that the elephant was of the ownership of respondent No.8. It may be at the same point of time, he might have had a certificate of ownership but however, it is noticed that he had parted with the elephant in the year 2002 and had transferred it in favour of respondent No.7. – Temple. A categorical finding is recorded by the Conservator of Forest that the temple in question does not have the required infrastructure to maintain and upkeep the elephant. Hence, to that extent, the order passed by the 3rd respondent cannot be faulted. 9. The only question with which both the petitioner as well as respondent No.8 have serious objection is regarding the conditions being incidental so far as the petitioner is concerned and the conditions are onerous insofar as respondent No.8 is concerned. It is no doubt true that the 3rd respondent appears to have proceeded on the footing that once the gift made in favour of the 7th respondent is no longer enforceable for the reasons stated by him, the ownership would revert to respondent No.8. It is no doubt true that the 3rd respondent appears to have proceeded on the footing that once the gift made in favour of the 7th respondent is no longer enforceable for the reasons stated by him, the ownership would revert to respondent No.8. Incidentally, it is to be noticed that the original ownership certificate is not made available. Mr. Vijaya Raghavan, learned counsel for respondents 7 and 8 would submit that it was the subject matter of earlier writ petition and it was produced but however, the original thereof is not forthcoming. It is one of the reasons as to why the 3rd respondent has directed the 8th respondent to make available the ownership certificate. Be that as it may the fact remains that it is more than close to five years that the elephant in question at present is in a surrounding which, I think is more conductive for his upkeep and well being. Sub-Section (2-A) of Section 40 would also speaks about the facts that after the commencement of the Wild Life (Protection) Amendment Act, no person shall keep or acquire or receive or possess any animal without a certificate. 10. Indeed it is to be noticed that there is a rapid decline of Wild animals and birds in India and it is a matter of grace concern. Some wild animals and birds have already become extinct and there is a danger of other species following them. Indeed while dilating further, it is to be noticed that the total population of the Tigers in India is close to 1.114 and it is trite and disheartening to know that the said wild life is also not being protected. It is also to be noticed that since the existing laws were not in aid of protection of the wild life, the Government thought it fit to come out with another enactment replacing the old enactment with the present enactment. Indeed it is to be noticed that every State had its own law in respect of the wild life protection and the Central Government in fitness of things thought it fit that all the laws of the State relating to Wild Life should be brought under one umbrella. There is very much a mixed picture as regards elephant conservation and welfare issues. There is very much a mixed picture as regards elephant conservation and welfare issues. Efforts for the conservation of the elephant in India were initiated in 1873 with the promulgation of the Madras Wild Elephant Preservation Act, 1873. The elephant was included in Schedule 1 of the Wildlife (Protection) Act, 1972 on 05.10.1977. A number of legislative measures were taken in the subsequent years which resulted in controlling the process of deforestation of elephant habitat and prohibiting ivory trade. Attempts for the conservation of elephants got a big boost on February 1992 when Government of India launched ‘Project Elephant’. As a result of various conservation measures, elephants now enjoy a comprehensive legal support and their population has gone up. But the overall status of elephants and their habitat continues to be precarious. Incidences of killing elephants by poachers for ivory and by farmers in retaliation to crop damage, are on the increase. Habitats and corridors of elephants are under tremendous pressure in many states on account of deforestation, encroachment and other biotic factors of some regions, poaching of tuskers has disturbed the sex-ratio in elephant populations to alarming proportions inasmuch as elephants do not breed in captivity. 11. Elephants travel over large distances in the wild. But the unnatural living conditions offered by either zoos, circuses or temples wherein the captive elephants are confined to tiny enclosures in captivity, results in behavioral aberrations of elephants. Elephants in captivity suffer from psychological trauma as well as physical abuse. Despite a rich culture of domesticated elephants many are not receiving the welfare they are entitled to under the law and are suffering as a result. Thus the situation regarding the captive animal reveals a more worrying trend. Therefore, it is necessary to make systematic and sustained efforts to deal with various problems concerning conservation of elephants. 12. Indeed this Court, while disposing of the earlier writ petition had observed that paramount consideration would be in respect of the animal in question and not that of the ownership. Indeed all aspects have not been considered by the 3rd respondent. The 3rd respondent has proceeded on the premise that once the gift in favour of the 7th respondent cannot be given effect to, the elephant should be returned to the 8th respondent. Obviously, such an analogy or conclusion cannot be accepted. Indeed all aspects have not been considered by the 3rd respondent. The 3rd respondent has proceeded on the premise that once the gift in favour of the 7th respondent cannot be given effect to, the elephant should be returned to the 8th respondent. Obviously, such an analogy or conclusion cannot be accepted. It is no doubt true that the 8th respondent is required to produce the necessary Certificate of ownership before taking possession of the elephant in question and the same is required to be transported. On such production, the custody of the elephant in question can be given. Indeed as of now, the 8th respondent does not possess the certificate of ownership. He is required to obtain the same. Be that as it may, I am of the view that all wild animals should stay in the forest area and not anywhere closer or within the vicinity of a civilization. 13. A submission is made by Mr. N.B.Vishwanath, learned Additional Government Advocate appearing for respondents 2 to 5 that notwithstanding the fact that maintaining an elephant would cost substantial amount to the Government, they would take care of the elephant in question i.e., Girija Prasad like any other elephant in Sakkarebailu Forest, Shimoga. The NGO, who is taking care of all Wild animals is also put on terms, in case if there is any shortfall by the Government in taking care of not only this elephant, but all elephants in Sakkarebailu forest including all other wild life in the said area. 14. Having given my anxious consideration, I am of the view that the impugned order passed by respondent No.3 to the extent that the elephant in question should be handed over to the 8th respondent is liable to be interfered. Insofar as the finding recorded by the 3rd respondent that the gift made by the 8th respondent in favour of the 7th respondent being null and void does not warrant interference and the said finding stands confirmed. Hence, the following order: (a) Petition stands allowed in part. (b) The impugned order at Annexure ‘D’ insofar as the handing over of the elephant to respondent No.8 stands quashed. (c) The finding recorded by the 3rd respondents that the gift made by 8th respondent in favour of the 7th respondent that it is null and void, stands confirmed. Rules is issued and made absolute to the extent indicated above. 15. (c) The finding recorded by the 3rd respondents that the gift made by 8th respondent in favour of the 7th respondent that it is null and void, stands confirmed. Rules is issued and made absolute to the extent indicated above. 15. Mr.N.B.Vishwanath, learned Additional Government Advocate appearing for respondents 2 to 5 is permitted to file memo of appearance without four weeks.