Bombay High Court

Swasthishri Jinsen Bhattarak ... vs Union Of India Thr Its Ministry Of ... on 16 July, 2025

Author: Revati Mohite Dere

Bench: Revati Mohite Dere

2025:BHC-AS:29166-DB

                                                               902-wp-4965-2025-J.doc

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                 CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO.4965 OF 2025

                                            WITH

                         INTERIM APPLICATION (ST) NO.21808 OF 2025

            Swasthishri Jinsen Bhattarak,
            Pattacharya Mahaswami Sanstha,
            Math (Karveer) Kolhapur,
            Nandani, Terdal, Belgaon,
            Through Swasthishri Jinsen
            Bhattarak Pattacharya Mahaswamiji.             .....Petitioner
                           Vs.
            1.    Union of India,
                  Through Its Ministry of Environment
                  and Forest & Climate Change at
                  New Delhi.

            2.    The Office of High Power Committee
                  Having address at D-19, Third Floor,
                  Geetanjali Exclave,
                  New Delhi-110 017.

            3.    Chief Wildlife Warden &
                  Principal Chief Conservator of Forests
                  (Wildlife), Maharashtra,
                  State at Nagpur, having office at
                  "Van Bhavan"3rd Floor,
                  Ramgiri Road, Civil Lines,
                  Nagpur-440 001.

            4.    Chief Forest Conservator (Regional)
                  Kolhapur, having office at
                  "Vanvardhan", Tarabai Park,
                  Kolhapur-416 003.

            Gaikwad RD                                                            1/22
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5.    Deputy Forest Conservator,
      Kolhapur Forest Division, Kolhapur
      Having office at "Vanvardhan",
      In front of Head Post Office,
      Tarabai Park, Kolhapur.

6.    Radhe Krishna Temple Elephant
      Welfare Trust,
      At Moti Khavdi-Jamnagar, Gujrat.

7.    People for the Ethical Treatment
      of Animal (PETA).                      .....Respondents


                               WITH

             INTERIM APPLICATION NO.7765 OF 2025

People For The Ethical
Treatment Of Animals (PETA) India            .....Applicant

In The Matter Between:
Swasthishri Jinsen Bhattarak,
Pattacharya Mahaswami Sanstha,
Math (Karveer) Kolhapur,
Nandani, Terdal, Belgaon,
Through Swasthishri Jinsen
Bhattarak Pattacharya Mahaswamiji.           .....Petitioner

             Vs.

1.    Union of India,
      Through Its Ministry of Environment
      and Forest & Climate Change at
      New Delhi.

2.    The Office of High Power Committee
      Having address at D-19, Third Floor,
      Geetanjali Exclave,
      New Delhi-110 017.

Gaikwad RD                                                          2/22
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3.    Chief Wildlife Warden &
      Principal Chief Conservator of Forests
      (Wildlife), Maharashtra,
      State at Nagpur, having office at
      "Van Bhavan"3rd Floor,
      Ramgiri Road, Civil Lines,
      Nagpur-440 001.

4.    Chief Forest Conservator (Regional)
      Kolhapur, having office at
      "Vanvardhan", Tarabai Park,
      Kolhapur-416 003.

5.    Deputy Forest Conservator,
      Kolhapur Forest Division, Kolhapur
      Having office at "Vanvardhan",
      In front of Head Post Office,
      Tarabai Park, Kolhapur.

6.    Radhe Krishna Temple Elephant
      Welfare Trust,
      At Moti Khavdi-Jamnagar, Gujrat.

7.    People for the Ethical Treatment
      of Animal (PETA).                        .....Respondents

Mr. Surel Shah, senior counsel with Mr. Manoj Patil & Ms. Kalyani
Mangave, for the Petitioner.
Mr. Jatin Kochar with Mr. Ninan Thikekar, i/b. Mr. Karan Singh
Shekhawat, for the Respondent No.2.
Mr. A. I. Patel, Additional Government Pleader with Smt. S. S.
Bhende, AGP, for the Respondent-State.
Mr. Shardul Singh with Mr. Smeet Savla, for the Respondent No.6.
Mr. Vishal Kanade with Mr. Prateek Pai, Ms. Sita Kapadia, Ms.
Arunima Athavale, i/b. Keystone Partners, counsel & Solicitors for the
Respondent No.7.




Gaikwad RD                                                            3/22
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                               CORAM : REVATI MOHITE DERE &
                                            DR. NEELA GOKHALE, JJ.
                        RESERVED ON : 4th JULY 2025.
                   PRONOUNCED ON : 16th JULY 2025.
JUDGMENT :

(Dr. Neela Gokhale, J.)

1. Rule. Rule made returnable forthwith. With consent of the

parties, the Petition is taken up for final hearing.

2. THE CHALLENGE :

2.1 By way of this Petition, the Petitioner seeks to quash and

set aside the impugned order dated 27th December 2024 and 3rd June

2025 passed by the Respondent No.2-High Power Committee ('HPC')

and also directions to the Respondent Nos.3 to 5 not to take any

coercive action for transfer of the elephant namely Mahadevi @

Madhuri from the Petitioner Trust-Mathsansthan to the Respondent

No.6- Radhe Krishna Elephant Welfare Trust at Jamnagar pursuant to

the order impugned dated 27th December 2024 and 3rd June 2025

passed by the Respondent No.2.

3. PARTIES TO THE PETITION :

3.1 The Petitioner is a Trust registered under the provisions of

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Maharashtra Public Trust Act, 1950 belonging to Jain discipline. The

Petitioner Trust owns the elephant namely Mahadevi since the year

1992 and is stated to have a religious tradition to keep an elephant in

the Math for religious programs. The maintenance of the elephant is

an integral part of the Trust activities. The Respondent No.1 is the

Union of India; the Respondent No.2 is the HPC; the Respondent

Nos.3, 4 and 5 are the Chief Wildlife Warden & Principal Chief

Conservator of Forest of the Maharashtra State, the Chief Forest

Conservator (Regional), Kolhapur and the Deputy Forest Conservator,

Kolhapur respectively. The Respondent No.6 is the Radhe Krishna

Temple Elephant Welfare Trust ('RKTEWT') which is the receiving

facility. This facility is stated to operate a specialized and well-

equipped elephant care center i.e. suitable, appropriate and capable of

receiving and caring for the said elephant. It is located in village Moti

Khavdi, Jamnagar, Gujarat with an object of caring and rehabilitation

of elephants that are injured, abandoned, rescued from circus and

otherwise found to be neglected or abused. It is to this institution that

the HPC has directed transfer and custody of the said elephant for its

long term care and rehabilitation. The Respondent No.7 ('PETA') is a

registered non-governmental animal rights organization with pan India

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operations. It is the original complainant which had represented to

the HPC regarding the plight of captive female elephant Mahadevi,

housed at the premises of the Petitioner-Math.

4. FACTS OF THE CASE :

4.1 The Petitioner is the owner of the said elephant having

registration certificate No. MH/04/02KLP/203 issued under the

provisions of the Wildlife (Protection) (Maharashtra) (Amendment)

Rules, 2004. According to the Petitioner, officials of the Respondent

Nos.3 to 5 regularly visit the premises of the Petitioner and conduct

check-up of the elephant.

4.2 On a representation made by PETA, the HPC by its order

dated 28th December 2023 directed transfer of the said elephant from

the Petitioner trust to the RKTEWT. The Petitioner filed a Writ

Petition No.3713 of 2024 in this Court assailing the said order, being

an ex-parte order. By order dated 13th March 2024, this Court

requested the HPC to consider the representation dated 7 th February

2024 made by the Petitioner and take a decision thereon within a

period of 15 days after giving an opportunity of hearing to all the

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concerned parties. In the meantime, the Respondent Nos.3 to 5 were

to defer the transfer of the said elephant. Accordingly, the HPC

formed a sub-committee to visit the Petitioner's premises and inspect

the facilities and health conditions of the elephant and submit a

report. The sub-committee visited the Petitioner's premises on 12 th

June 2024 & 29th September 2024. Two inspection reports were

submitted to the HPC.

4.3 By its order dated 27th December 2024, the HPC on the

basis of the inspection report submitted by its sub-committee, directed

transfer of the elephant to the RKTEWT. The Petitioner assailed this

Order dated 27th December 2024 by way of the present petition. By

order dated 28th April 2025, this Court once again considered it

appropriate that the Petitioner be heard by the HPC on all contentions

raised by it and also considered its representation dated 7 th February

2024 within a period of 15 days. This order was passed on the

grievance of the Petitioner that the Petitioner was not heard by the

HPC. However, this Court noted in its said order the reports dated

12th June 2024 and 25th November 2024 submitted by the sub-

committee appointed by the HPC. By the same order an intervention

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application of PETA was allowed. The Petition was kept pending

before this Court.

4.4 On 17th May 2025, the Petitioner was heard by the HPC.

The Petitioner's grievance representation was heard in detail and all

the documentary evidence furnished by the Petitioner was considered

by the HPC. The reports of the sub-committee as well as medical

reports furnished by the Petitioner Trust itself were also considered by

the HPC.

4.5 After considering the submissions made by all the parties,

the HPC by its order dated 3 rd June 2025 rejected the grievance of the

Petitioner Trust and for the 3rd time directed transfer of the said

elephant to RKTEWT. This order, passed during the pendency of the

present petition is also being assailed in the present Writ Petition. The

Petitioner sought an amendment to the present Writ Petition to

include a challenge to this subsequent order dated 3 rd June 2025 as

well as to add additional grounds and averments in the Petition. The

amendment was allowed by order dated 1st July 2025. The PETA was

also permitted to be impleaded as party Respondent No.7at this time.

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5. SUBMISSIONS OF PETITIONER :

5.1 According to the Petitioner, the impugned order dated 27 th

December 2024 is illegal, perverse and bad in law. There is no

adjudication on the Petitioner's representation dated 7 th February

2024 and hence, principle of natural justice have not been followed.

5.2 Even after hearing the Petitioner, pursuant to the

directions of this Court, the HPC recorded an adverse finding

contrary to material on record. Thus, the order dated 3 rd June 2025,

passed following the hearing, also suffers from legal infirmity.

5.3 The HPC failed to consider that the complaint made by

the PETA that the elephant killed the head priest of the Petitioner

Math was false. The HPC ignored the death certificate of the head

priest placed on record by the Petitioner.

5.4 The HPC also overlooked the medical certificates filed by

the Petitioner in support of its claim that the elephant was looked after

properly. The reports of the sub-committee was also not appreciated

in a proper perspective. The HPC also ignored the details placed by

the Petitioner about the worship of the elephant, its existence,

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religious value attached to the 2nd Bhagwan Tirthankar by the devotees

and villagers, etc.

5.5 It is argued by the Petitioner that the proviso to Section

43(2) of the Wildlife Protection Act, 1972 permits use of elephants for

religious purpose and the elephant was transferred to Telangana after

obtaining necessary permission from the Forest Department. The

Petitioner has detailed the importance of using the elephant in its

religious functions and states that it is a living symbol for the

community as other animals also. It is the fundamental right of the

Petitioner to carry out their duties, rights and rituals to express their

idea of religion as Article 25 of the Constitution recognizes this right.

The Petitioner submitted that there are medical reports that

demonstrate that the elephant has recouped and recovered from his

back injury and the Petitioner Math has cared for the elephant, leading

to the speedy recovery of the elephant. The Petitioner has facilitated

medical attention for the elephant. The Petitioner Math has organized

various religious programs from which they receive handsome income

and hence, the financial capability of the Petitioner is also sound so as

to be able to care for the elephant properly.

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5.6 The Petitioner has also facilitated socialization of the

elephant. The temporary transfer of the elephant to Telangana for

religious function was on an inadvertent and incorrect understanding

of the Petitioner that the Forest Department shall give the required

permission and NOC for the transfer. The error was bona fide and

there was no ulterior motive on the part of the Petitioner.

5.7 It was vehemently argued that the complaint was mala fide

and made with an ulterior motive of facilitating the RKTEWT to add

to its collection of elephants and to deprive the Petitioner of the said

elephant. The learned counsel for the Petitioner doubted the intention

of PETA to urge the HPC to transfer the elephant to RKTEWT in

place of any other wildlife sanctuary/elephant sanctuary in any other

State/City except for Jamnagar. On these grounds, the Petitioner has

assailed the orders of the HPC.

6. SUBMISSIONS OF RESPONDENT NO.7-PETA :

6.1 The Petitioner Math has only a commercial interest in

retaining custody of the elephant under a pretext of religious

requirement. The Petitioner gave the elephant on rent to the

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Telangana State Waqf Board for a religious function, to be paraded in

a public procession for Muharram, for an amount of Rs.4 lakhs. This

was without obtaining the requisite NOC from the Forest Department.

6.2 The pictures of the elephant being used in processions

demonstrate that the elephant is forced into a crowded situation

where she is tied with a rope around her belly, guarded by several

Mahouts holding Ankush weapons and pulling her ears continuously

amidst loud speakers and humans sitting on heavy howdrah kept on

her, despite her foot rot and arthritic condition.

6.3 The health assessment report dated 12 th August 2023 by a

local veterinarian indicates that Mahadevi was swaying and bobbing

her head and was under psychological distress.

6.4 Photographic evidence of Mahadevi and her shed dated

24th April 2025 showed her restrained with chains on two legs; she is

living in a small dirty shed with hard floor on which has been added a

layer of sand and mud; her foot pads and toe nails are painfully

overgrown and infected and, she is controlled by multiple Ankhush.

6.5 A veterinary doctor namely Dr. Rakesh Chittora, an expert

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in wild animal disease management, physically examined Mahadevi

and submitted a report which is consistent with the findings of severe

overgrown toe nails, swelling due to abscesses and signs of prolonged

chaining on hard surfaces. She was found to be kept in severe solitary

confinement.

6.6 An ownership certificate issued under the Wildlife

Protection Act, 1972 does not grant absolute and unconditional

ownership rights to parties upon wild animals, including elephants.

6.7 There are inconsistencies in the records of reliability of her

care. Her weight dropped on 5th May 2025 and increased again 6 days

later, which is not found to be healthy.

6.8 PETA also submitted a note on the ill-health of the

elephant along with photographs. PETA hence, urged the Court to

dismiss the present Petition.

7. The Respondent No.6-RKTEWT has signified its

willingness to accept the care and custody of the elephant Mahadevi,

by way of an affidavit dated 25 th April 2025. The averments in the

affidavit include a description of facilities available in their reserve.

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The affidavit also indicates that the facility houses 238 elephants,

establishing a dedicated area for social integration of elephants. The

environment is natural and supportive for social bonding and well

being of elephants.

8. ANALYSIS :

8.1 Heard Mr. Surel Shah, learned Senior Advocate for the

Petitioner, Mr. Jatin Kochar, learned Advocate for the HPC, Mr.

A.I.Patel for the State and Mr. Shardul Singh for the RKTEWT. Mr.

Vishal Kanade, learned counsel represented PETA.

8.2 A plain reading of the impugned order reveals a meticulous,

indepth and careful examination of various submissions made by

parties of conflicting interests. The HPC appears to have examined the

statutory framework of the Wildlife Protection Act viz-a-viz the

ownership and custody of the elephant. The HPC has noted the

multiple inspections including the Joint Inspection Report dated 20 th

June 2024, the Chief Wildlife Warden's (CWLW') report dated 25 th

November 2024 and the photographic evidence submitted by PETA.

The HPC has also comprehensively considered the representation of

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the Petitioner. The HPC has also aptly analyzed the effects of

confinement of an elephant in a religious setting. The Committee has

duly appreciated the observations of veterinary experts and

interpreted legal provisions vis-a-vis the ethical, constitutional and

legal framework supporting the protection and rehabilitation of

elephants, especially those in captivity.

8.3 We have perused the evaluation of the elephant-Mahadevi

contained in the Report dated 12 th June 2024. Details of her physical

health, physical well-being, diet adequacy terms and nutrition; social

environment; hygiene and cleanliness of the shelter; availability of

water and shade; mahout-elephant relationship, veterinary care and

exercise and work schedule appear to be absolutely dismal. The

overall assessment reads thus;

"Overall Assessment The present facility need improvements in all fronts including opportunity for socialization. The wounds need specialized veterinary care with management intervention. The cultural practices and local sentiments run high and the management of the Math informed that the recommended standard practices, infrastructure facilities and opportunity for socialization will be created within three months. Keeping in mind the social, cultural and sentimental aspects surrounding the elephant and the possibility of providing specialized veterinary care, improving the infrastructure and socialization opportunities it is suggested that a time frame of three months may be given to the Math management

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and review the infrastructure facilities and the health condition before a final decision of shifting the animal to a better facility"

8.4 Mr. Shah has tried to impress upon us that this report of 12 th

June 2024 was followed by other two reports which clearly

demonstrate a marked improvement in the health and condition of

elephant. We immediately perused reports dated 20 th June 2024, 1st

October 2024, report of the sub-committee dated 25 th November

2024, report of Dr. Kalappa dated 23 rd April 2025, health certificates

dated 5th May 2025 and 11th May 2025 and the photographs placed

on record by all the parties. Report dated 20 th June 2024 of the

CWLW to the HPC indicates the inspection of the Petitioner Math

Premises by the sub-committee and its observations. It is clearly stated

that the elephant suffers from decubital ulcerated wounds on the bony

prominences of the hip joints on both sides and the back side of the

right elbow joint and severe foot rot on the middle toe of both

forelegs. The elephant's nails are overgrown and deformed. The sub-

committee recommended urgent need for specialized veterinary

treatment, which if left unattended was bound to severely compromise

the elephant's quality of life.

8.5 Report dated 1st October 2024 vociferously relied upon by the

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Petitioner, simply indicated that the injury on the elephant's back

noticed in report dated 12th June 2024 was healing and the injury to

the toe nails was also getting better as compared to its earlier

condition. In our view, the argument of the elephant's convalescence

and that her condition is now improving has no strength and does not

further the case of the Petitioner. In fact this argument is quite

counterproductive inasmuch as it establishes the fact that the elephant

suffered injuries while being under the 'care' and custody of the

Petitioner-Math. We are definitely not impressed by this argument . At

the outset, there is no explanation offered by the Petitioner as to what

caused the injuries on the elephant's back in the first place. The only

fathomable culprit can be the howdrah that may have been placed on

the elephant's back to carry loudspeakers and human beings during

processions. This continued treatment of the elephant is callous and

brutal. The elephant does not deserve to be used to ferry weighty

humans and equipments. Thus, this argument cannot be taken to be a

mitigating factor in favour of the Petitioner.

8.6 The reports of the sub-committee dated 25th November 2024

submitted to the HPC also contains an observation that there is

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considerable improvement in the wounds on the foot and in between

nails of the elephant as compared to those found in the inspection

report dated 12th June 2024. There are six points detailed by the sub-

committee indicating that the Petitioner-Math is attempting to provide

some facilities to the elephant. We have seen the said points. The

efforts appear to be cosmetic which include provision of 10,000 liter

water tank; walking the elephant for 5-10 kilometers in a day; health

check-ups; taking the elephant to bathe once a week and replacing the

cement/concrete platform with mud. The efforts made by the

Petitioner are too little and too late in the day, to redeem the neglect

and to commiserate for the damage caused to the mental and physical

health of the elephant.

8.7 We have also seen the health certificates of the elephant,

issued by the Doctors engaged by the Petitioner. Undoubtedly, all three

health certificates provided by the doctor of the Petitioner-Math

indicate that the animal is found healthy and sound. However, the said

three one pager health certificates only contain the physical

description of the elephant and one line regarding the condition of the

elephant. These certificates are not consistent with the detailed

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medical and over all reports of the sub-committee of the HPC and do

not seem to reflect the correct picture of the condition of the

elephant. The said certificate is also inconsistent with a plethora of

recent photographs of the elephant which speak for themselves and

tell the real story. Thus the cursory health certificates do not inspire

confidence.

8.8 The HPC has considered in detail all the reports carefully. It has

also dealt with the argument of the Petitioner that there is no

fundamental right of an animal that can be enforced by a

Constitutional Court. In this regard, the HPC relied upon the decision

of the Supreme Court in the matter of Animal Welfare Board of India

v. A. Nagaraja,1 where the Apex Court held that the traditions,

customs and religious beliefs are not above animal welfare obligations.

The HPC also considered various precedents of the Apex Court and

other High Courts in this regard. The Committee also considered the

argument of the Math regarding requirement of the elephant to carry

out its objectives and religious activities. However, the HPC has

leaned in favor of the well-being and liberty of the elephant in

captivity against the community's alleged rights canvassed by the

1 (2014) 7 SCC 547.

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Petitioner-Math, under Article 25 of the Constitution of India. We

agree.

8.9 In regard to the choice of RKTEWT to be the recipient of the

elephant, the HPC has appreciated the institutional background and

experience of the said reserve. It has seen the photographs of the

specialized sanctuary and assured itself of the suitability of the

RKTEWT of housing the elephant, especially the daily access to

natural areas for feeding, bathing, socialization and herd integration.

All these facilities, including the number of personnel, care givers,

international veterinary consultants, biologists specializing in elephant

behaviour, etc are available for inhabitants of the reserve. It appears

to be a godsent facility for the long suffering elephant. We also

weighed in the doubts raised by the Petitioner regarding the suggestion

of PETA to transfer the elephant only in RKTEWT and not any other

sanctuary and explored the possibility of rehabilitating Mahadevi

within the State of Maharashtra itself, but we are told that

Maharashtra as yet does not have any Elephant Sanctuary. Sanctuaries

exclusively caring for elephants do exist in Kerela and other states,

however RKTEWT, Jamnagar, is the closest to Maharashtra and the

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Elephant will not have suffer pronged agony during transportation to

any other far flung area. Also as discussed above, we find the

RKTEWT suitable to house Mahadevi and provide her with timely

and much needed succor. Thus, we have no hesitation in confirming

the order passed by the HPC.

9. Before we part, we deem it appropriate to record that we have

considered and chosen the survival of the elephant and its right to

quality life, over and above the rights of men to use the elephant for

religious rites. We have no doubt that the Petitioner-Math may have

had no deliberate intent to cause injury to the elephant however, in

the given circumstances of conflict between the rights of an elephant

and the rights of Petitioner-Math to use the elephant in the discharge

of its religious activities, priority must be given to the elephant's

welfare. The Court has duty under the doctrine parens patriae to

secure the rights of the voiceless and hapless Mahadevi. We cannot

but reminisce the words of Lawrence Anthony in his book 'The

Elephant Whisperer',

"But perhaps the most important lesson I learned is that there are no walls between humans and the elephants except

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those that we put up ourselves, and that until we allow not only elephants, but all living creatures their place in the sun, we can never be whole ourselves."

10. The Petition is thus, dismissed. Rule is accordingly

discharged.

11. The elephant shall be transferred to the Respondent No.6-

Radhe Krishna Temple Elephant Welfare Trust, Moti Khavdi-

Jamnagar, Gujrat within a period of two weeks from the date of

uploading of this order. We request the Chief Wildlife Warden of

Maharashtra to issue a Transport Permit and the Chief Wildlife

Warden of Gujarat to issue a No Objection Certificate, if necessary to

effect the said transfer. We also request the concerned police

authorities to render support, as sought by the parties.

12. As the Petition itself has been disposed of, nothing survives

in the Interim Applications therein and the same are also disposed of.