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2019 DIGILAW 787 (GAU)

Avinava Prayash v. State of Assam

2019-06-25

MANISH CHOUDHURY

body2019
JUDGMENT : A.K. Goswami, J. Heard Mr. B. D. Konwar, learned senior counsel, appearing for the petitioners. Also heard Mr. D. Mazumdar, learned Additional Advocate General, Assam, appearing for Respondents No. 1 to 5; Mr. S.C. Keyal, learned Assistant Solicitor General of India appearing for Respondent No.6 and Mr. B. Sarma, learned Standing Counsel, Railways, appearing for Respondents No.7, 8, 9 and 10. 2. The petitioner No.1 is an organization registered under the Societies Registration Act, 1860, formed with the object of ensuring Animal Welfare, Wildlife Conservation, Environment and Forest Protection, etc. The petitioner No.2 is the Secretary of the petitioner No.1 and she is an animal rights activist. The petitioner No. 3 also claims to be an animal rights activist. 3. The petition was filed on 21.06.2019 praying for a direction to the State Government to revoke its decision to transfer four elephants to Ahmedabad in the State of Gujarat. It is pleaded by the petitioners that the elephants are sought to be transported for the purpose of Annual Rath Yatra to be held on and from 04.07.2019 and the orders in that connection were passed by the Respondent No.4 - the Chief Wild Life Warden & Principal Chief Conservator of Forests (Wild Life), Assam. The copies of the orders, however, are not annexed with the petition. 4. During the course of deliberation, however, Mr. D. Mazumdar, learned Additional Advocate General, Assam has submitted that four identical orders, dated 12.06.2019, 13.06.2019 and 14.06.2019, were passed by the respondent No. 4 in respect of the four elephants in question granting permission for transportation of elephants. The names of the four elephants are - (1) Joytara (female), (2) Babulal (male), (3) Rupsing (male) and (4) Rani (female). The order dated 14.06.2019 in respect of Rani, which is produced before the court, goes to show that the elephant in question was intended to be taken to Gujarat for religious purpose and No Objection Certificate was received from the Principal Chief Conservator of Forests & Chief Wildlife Warden, Gujarat and, accordingly, permission was accorded under Section 40(2) of the Wildlife (Protection) Act, 1972 to Shri Jogi Nath Pegu for transporting the elephant to Sri Sri Jagannathji Temple, Ahmedabad, Gujarat. Terms and conditions have also been notified in the said order. Terms and conditions have also been notified in the said order. It is indicated that the elephant will be kept in Gujarat for six months upto 14.12.2019 and will be brought back to Assam after that period with a valid Transit Pass to be issued by the competent authority. The terms and conditions are enumerated herein below: "1. Particulars of the Elephant: Name: 'Rani' Sex: Female Date of Birth: 24.04.2013 Date of Birth: 24.04.2013 Ownership Certificate No.000770AB16/EAC/TSK/WL/2019/1 dated 13.6.2019 issued by the Conservator of Forests, Eastern Assam Circle, Jorhat (Assam). 2. The elephant will be kept in Gujarat for 6(Six) months up to 13.12.2019 and will be brought back to Assam after that period with a valid Transit Pass issued by the competent authority. 3. The ownership of the elephant will not be transferred under any circumstance. 4. The Principal Chief Conservator of Forests & Chief Wildlife Warden, Gujarat will be intimated in writing immediately after the arrival of the elephant in Gujarat required under Sec. 43(2) of the Wildlife Protection Act, 1972. 5. The elephant shall be properly fed and given water before loading. 6. All necessary arrangements shall be made for feeding and watering the elephant in route. 7. The elephant shall not be made to walk for more than three hours at a stretch. 8. In case the transportation involves walking during night, two prominent reflectors shall be placed at the front and hind portion of the elephant. 9. Under any circumstances, the elephant shall not be made to walk for more than 30 Kms in a single date. In case of distances more than 50 Km, it shall be carried in vehicle only. 10. Trucks with length less than 12 feet shall not be used for transportation of the elephant. 11. At least 12 hours of rest shall be given for every 12 hours of journey by truck. 12. While transporting elephants by rail an ordinary goods wagon should not carry more than three adult elephants or six calves on broad gauze, or not more than two elephants or three calves on meter gauze or not more than one adult elephant or two calves on narrow gauze. 13. While transporting by truck or train sufficient care shall be taken to maintain constant speed avoiding jerks and sudden stops and reducing effects of shocks and jolts to the minimum. 14. 13. While transporting by truck or train sufficient care shall be taken to maintain constant speed avoiding jerks and sudden stops and reducing effects of shocks and jolts to the minimum. 14. At least two attendant mahouts will have to accompany the elephant during the transport. 15. The truck to be used for carrying the elephant must have drainage facility to keep it dry and must have a water storage facility. 16. It shall be ensured that the truck is in order and one trained mechanic with tool must accompany the truck. 17. In addition, the following conditions indicated in the NOC by the Principal Chief Conservator of Forests & Chief Wildlife Warden, Gujarat vide Letter No. WLP/26B/1022/2019- 20, dated 13.06.2019 shall also apply: i. The permission is valid initially for a period of 6 months from the date of issuance of the certificate. ii. The permission in any manner cannot be construed as transfer of ownership from the present owner. iii. The owner of elephants shall have to given an undertaking including deputing mahouts at Ahmedabad to take care of elephants, before transporting the elephant to Gujarat State. iv. Food for the animals is to be arranged from their own resources. For the purpose of feeding the elephant, fodder/ branches/ leaves etc. should not be cut from the trees standing inside Government/ Panchayat owned areas. v. The animal should be kept within the premises of the Temple Committee and should not be allowed to move out of the premises." 5. It is the common ground and also the pleaded version of the petitioners that the four elephants belong to private owners. It is pleaded that there is an interim order dated 04.05.2016 passed by the Hon'ble Supreme Court in I.A. No.25 & 26 of 2016 in Writ Petitions (Civil) Nos. 743/2014, which prohibits transfer of elephants outside the State and this aspect of the matter was not taken into consideration while passing the orders for according permission for transportation. Another aspect that is highlighted is that the exposure to extreme heat condition would be perilous to the elephants and would subject them to pain and suffering and the same would amount to cruelty to animals within the meaning of Section 11(d)(3) and (f) of the Prevention of Cruelty to Animals Act, 1960. 6. Subsequently, an additional affidavit was filed by the petitioners on 24.6.2019. 6. Subsequently, an additional affidavit was filed by the petitioners on 24.6.2019. In this additional affidavit, it is stated that the elephants are expected to be boarded into a goods train and about 96 hours of travelling time will be required to cover the distance of 3100 kms. 7. At paragraph 5 of the said affidavit, it is emphasized that the key issue to be taken note of is the spell of heat wave in the North-west India through which the transportation has to take place. It is pleaded that elephants are sold to Sri Sri Jagannathji Temple and that if the elephants are transferred to Gujarat for consideration of money, the same would be in violation of Section 43 of the Wildlife (Protection) Act, 1972. It is stated that Sri Sri Jagannathji Temple at Ahmedabad has a poor record of elephant management. Statements are also made with regard to the elephant population in the State of Gujarat and, according to the petitioners, there are 52 elephants in Gujarat, out of which 21 are in private custody, 12 in circuses and 19 in temples. Further case of the petitioners is that detailed guidelines were issued by the Ministry of Environment and Forests, Project Elephant vide No.9-5/2003 PE dated 8.1.2008 in respect of care and management of captive elephants. 8. Mr. B. D. Konwar, learned senior counsel has submitted, based on the order dated 04.05.2016 passed by the Hon'ble Supreme Court in I.A. No.25 & 26 of 2016 in Writ Petition s (Civil) Nos. 743/2014 (Annexure-4 to the PIL), that the Respondent No.4, while granting permission had not considered this aspect of the matter and, from the order granting transportation, it also does not appear that the distance to be covered in the prevailing heat wave was considered and, therefore, the order is a result of non-application of mind. 9. Mr. D. Mazumdar, learned Additional Advocate General, Assam, has submitted that the authority, while passing the orders for transportation was alive to the order of the Hon'ble Supreme Court though not reflected in the order. He submits that he makes the submission on the basis of the interaction with the officer concerned. According to the learned Senior counsel, the interim order referred to by Mr. Konwar does not bind the State of Assam and that the same is applicable only to the State of Kerala. Mr. He submits that he makes the submission on the basis of the interaction with the officer concerned. According to the learned Senior counsel, the interim order referred to by Mr. Konwar does not bind the State of Assam and that the same is applicable only to the State of Kerala. Mr. Mazumdar has submitted that though during the course of submission yesterday he had submitted that the elephants would be transported by rail in air-conditioned wagons, it may not be possible to transport the elephants in that manner in absence of such facility with the railways, as, later on, indicated to him by Mr. B. Sarma, learned Standing Counsel, Railways. This submission is not disputed by Mr. Sarma. It is submitted by Mr. Mazumdar that there is no impediment for the elephants to be taken to Gujarat and the apprehension expressed by the petitioners on account of the prevailing heat condition is wholly unfounded. It is further submitted by him that in the interregnum period after the passing of the interim order by the Hon'ble Supreme Court, there are number of instances where transportation of elephants have taken place from Kerala to Tamil Nadu, Telangana to Tamil Nadu and Tamil Nadu to Andhra Pradesh in the years 2017 and 2018. 10. Mr. S.C. Keyal, learned Assistant Solicitor General of India has submitted that though he had asked for instructions, in view of paucity of time, he has not been able to receive instructions. However, he has been informed that some instructions will be issued to the State Government. He also submits that on the basis of the materials on record, it would be difficult for him to say as to whether the order dated 04.05.2016 is applicable to the State of Assam. 11. Mr. B. Sarma, learned Standing Counsel, Railways has submitted that as it had come to the notice of the authorities of the Railways that the Hon'ble Supreme Court of India in 2016 had passed an interim order prohibiting transportation of captive elephants from one state to another, a clarification was sought from the Forest Department by letters dated 19.06.2019, 20.06.2019 as well as by letter dated 21.06.2019, addressed to the respondent No. 4. However, no response is received till date. He submits that it was decided to keep the indent in abeyance until such time the clarification is received from the authorities. 12. However, no response is received till date. He submits that it was decided to keep the indent in abeyance until such time the clarification is received from the authorities. 12. Neither Sri Sri Jagannathji Temple nor the State of Gujarat have been made party respondents. 13. That the elephants are intended to be taken to Sri Sri Jagannathji Temple, Ahmedabad, Gujarat for religious purpose on the occasion of the Rath Yatra to commence from 04.07.2019 is an undisputed fact. Having regard to the submissions of the learned counsel for the parties and on the basis of the available materials on record and also taking note of the submission of Mr. S.C. Keyal, learned Assistant Solicitor General of India, that the Union of India is also sending some instructions to the State of Assam on the subject, it will not be justified to keep this petition pending. Questions have been raised by the Indian Railways itself regarding the applicability or otherwise of the interim order passed by the Hon'ble Supreme Court and, till date, the Respondent No. 4 - The Chief Wild Life Warden & Principal Chief Conservator of Forests (Wild Life), Assam, has not responded by way of clarification. We are of the opinion that if the order of the Hon'ble Supreme Court had engaged the attention of the Respondent No. 4, the same should have been reflected in the orders itself. In any event, after the Indian Railways had sought the clarification, it was necessary for the Respondent No. 4, who is entrusted with the responsibility of allowing or disallowing transportation of elephants, to have considered the matter and pass appropriate orders. 14. This Court is ill equipped to make any comment in what manner elephants are to be transported, but there can be no two opinions that before any such decision is taken, relevant considerations have to be borne in mind. The safety and well-being of the elephants are of paramount importance and these aspects of the matter have to be considered. Needless to say, the guidelines dated 08.01.2018 will also have to be scrupulously followed. It appears that terms and conditions in the order dated 14.06.2019 are incorporated from the guidelines. The safety and well-being of the elephants are of paramount importance and these aspects of the matter have to be considered. Needless to say, the guidelines dated 08.01.2018 will also have to be scrupulously followed. It appears that terms and conditions in the order dated 14.06.2019 are incorporated from the guidelines. Since the heat wave aspect has been flagged in this petition and since it is apparent that the order does not reflect consideration of the effect of the interim order dated 04.05.2016 passed by the Hon'ble Supreme Court, we are of the considered opinion that Respondent No. 4, being the expert and the competent authority, shall pass a fresh order taking into consideration all relevant aspects in the matter of transportation of the elephants. Such order will be passed on or before 27.06.2019 and a copy of the same shall be furnished to Mr. B.D. Konwar, learned senior counsel for the petitioners on the very day of passing the order. 15. The public interest litigation, accordingly, stands disposed of.