Mr M S Muruly vs State Of Karnataka
2022 Latest Caselaw 8184 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 06TH DAY OF JUNE, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                          AND

       THE HON'BLE MR.JUSTICE ASHOK S.KINAGI

 WRIT PETITION NO.10688 OF 2022 (GM-FOR-PIL)

BETWEEN:
MURULY M.S.
SON OF LATE M.T. SOMAIAH
AGED ABOUT 50 YEARS
NO.5, 1ST MAIN, 2ND CROSS
SINGAPURA LAYOUT
VIDYARANYAPURA POST
BANGALORE - 560 097
PAN NO. AJEPM7431L
AADHAR CARD NO.3588 9316 3488
PROFESSION: ADVOCATE
MOBILE NO. 9880844356
EMAIL: [email protected]
                                          ... PETITIONER
(BY SRI RAMESH T., ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ADDITIONAL CHIEF SECRETARY
       FOREST, ECOLOGY AND
       ENVIRONMENT DEPARTMENT (FEE)
       KARNATAKA GOVERNMENT SECRETARIAT
       ROOM No.448, 4TH FLOOR, GATE No.2
       M.S. BUILDING, BENGALURU - 560 001.

2.     CENTRAL ZOO AUTHORITY
       MINISTRY OF ENVIRONMENT, FORESTS AND
       CLIMATE CHANGE
       B-1 WING, 6TH FLOOR
       PT. DEENDAYALA ANTYODAYA BHAWAN
       CGO COMPLEX, LODHI ROAD
       NEW DELHI - 110 003.
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3.    RADHA KRISHNA TEMPLE ELEPHANT WELFARE TRUST
      C/O RADHA KRISHNA TEMPLE
      RELIANCE GREENS
      MOTI KHAVDI
      JAMNAGAR - 361 142.
                                          ... RESPONDENTS
(BY SRI VIJAYAKUMAR A. PATIL, AGA FOR R-1 AND
 DR. SUJAY N. KANTAWALA, ADVOCATE FOR
 MS. N.G. DEVISREE, ADVOCATE FOR R-3)
                            ---
     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION, DIRECTING THE RESPONDENT NO.1
NAMELY THE STATE OF KARNATAKA TO ISSUE GUIDELINES
DIRECTING THAT NO PERSON CAN SELL OR TRANSFER OR
TRANSLOCATE ELEPHANTS FROM THE STATE OF KARNATAKA TO
THE RESPONDENT NO.3 TRUST AND ETC.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

                          ORDER

This public interest litigation has been filed seeking

intervention of this Court in the matter of transfer of some

Elephants from State of Karnataka to respondent No.3

Trust which was reported in the media. A direction has

been sought to the State Government to issue guidelines

directing that no person can sell or transfer or translocate

Elephants from the State of Karnataka to the respondent

No.3 Trust. A direction has been sought to respondent

No.3 Trust to send back the 4 Elephants that were

transported to the said Trust and also send back all the

Elephants which have been taken by the Trust, back to the

respective Forest Department of the States from which

these Elephants were obtained.

2. Notice for respondent No.1 has been accepted

by learned Additional Government Advocate, whereas

Dr. Sujay N. Kantawala has put in appearance on behalf of

respondent No.3. With the consent of learned counsel for

the parties, we propose to dispose of the writ petition at the

admission stage without calling for counter affidavit /

statement of objections.

3. The case of the petitioner in brief is that the

Elephants cannot be entrusted with private individuals or

organizations and must be reclaimed by the State

Government. His case is that by allowing organizations like

the respondent No.3 to give refuge to Elephants, the State

Governments or the Central Government is abdicating its

responsibility. A perusal of documents annexed to the writ

petition indicates that 4 Elephants were rescued from a

Circus couple of decades ago. The Court, acting on a

petition filed by animal rights activists, had directed the

Forest Department to take over the Elephants. After the

Court order, the Mysore Royal Family volunteered to take

care of the Elephants and they were accordingly sent to the

Mysore Palace. The Elephants were a tourist attraction at

the Palace and were used for Elephant Safaris. The Forest

officials has informed that in 2017, the Royal Family wrote

to the Forest Department that the handlers were not taking

proper care of the animals. However, the animals were not

shifted due to administrative issues. These 4 Elephants

have been given to respondent No.3 Trust by way of Gift

Deeds for their better care. The permission was given by

the Forest Department for transportation / translocation of

these animals.

4. Learned counsel for the petitioner has

contended that respondent No.1 should not allow the

transfer of Elephants from Karnataka. The forest

authorities had wrongly granted permit in favour of

respondent No.3 to transfer the Elephants from Karnataka

to Jamnagar, Gujarat. It is also contended that the

preference is being given to respondent No.3 in getting the

wild animals on extraneous considerations. It is submitted

that the animals which are transferred or translocated shall

be sterilized. The counsel for the petitioner has argued that

there is a strong apprehension that these animals would be

put to commercial use and the respondent No.3 may

misuse these animals by opening a breeding centre.

5. The respondent No.3 has vehemently opposed

the petition. We have perused the counter affidavit. The

preliminary objections regarding maintainability of the writ

petition has been raised, which are as under:

i. The instant writ petition is not maintainable either in law or on facts and hence the petition to be dismissed at the outset.

ii. The Respondent No.3 is a separate, distinct and independent organization in the form of a Public Trust and has no legal association with Reliance Industries Limited as is confused in many news reports attached with the Petition.

iii. The Petitioner has suppressed material facts and made false statements in this writ petition and averments contained in the instant writ are clearly aimed at misleading this Hon'ble Court and therefore the Petitioner is not entitled to any relief ads claimed in this writ petition.

iv. It is submitted that instant writ petition is clearly an abuse of process of this Hon'ble Court and hence the Writ Petition is to be dismissed at the very outset.

6. Learned counsel for respondent No.3 submits

that the Respondent No.3 began as an informal associated

of like-minded persons who have immense passion and a

deep sense of attachment to the well-being of Elephants

and large mammals, especially those who were and are

victims of circumstances (injured in train accidents, fell in

water tunnels etc.) from the wild and victims of abuse in

captivity (circus, street begging etc). Though there is no

specific date from which its activities of helping Elephants

began, the first few efforts taken for the welfare of

Elephants began from 2013-2014. The Respondent No.3

began to provide shelter to rescued, diseased, old aged

Elephants from around 2014.

7. The Respondent No.3 Trust was formally

registered as a Public Charitable Trust under the Gujarat

Public Trust Act, 1950 on 30th September 2019. The objects

for which the Trust is formed is to promote welfare of

animals and to establish buildings, maintain shelters and

provide state of the art facilities for animals who are

rescued, hurt, ill, of advanced age, victims of human -

animal conflict, victims of human abuse or compulsions or

are abandoned.

8. The Respondent No.3 both before and after its

incorporation has been tirelessly working for the cause of

Elephants. The Respondent No.3 has established a very

large facility in the green belts alongside Jamnagar Refinery

along with use of over 50 acres of land for large shelters,

ponds, grazing areas, playing areas, eating areas, hospital

and care Camps, for Elephants. The Respondent No.3 also

received a formal permission from the Principal Chief

Conservator of Forest (Wildlife) and Chief Wildlife Warden,

Gujarat on 9th July 2020 for the Elephant Care Camp at

Jamnagar.

9. Since the beginning and until now, the

Respondent No.3 has:

a. Created state of the art shelters and enclosures for Elephants up to the capacity of 300 with potential to increase the intake capacity depending on the fact if the Respondent No.3 is called upon to rehabilitate and/or rescue more Elephants.

b. Received up to 153 sick, abandoned and victimized Elephants from past owners, possessors, mahouts, handlers, circuses or rescued or from State Government and other agencies.

c. Employed 237 Mahouts, 8 veterinarians, 8 para-veterinarians and further 22 care takes and trained staff members for the round the clock care and attention of the Elephants.

d. Established a supply chain of diet appropriate foods and medicines for the Elephants.

e. Established a State of the Art Elephant Hospital equipped with a first of a kind restraining device for treatment of Elephants, endoscopy machine, surgery facility, hydraulic crane and cataract surgery facilities.

f. Established an exercise and rejuvenation regime for all the Elephants by using technology and created a software that ensures Elephants have adequate exercise.

g. Established walking and grazing tracks for the Elephants.

h. Established ponds and hydrotherapy water bodies for the Elephants.

j. Employed mahouts of a large number of Elephants who were working as mahouts prior to the Elephant's rescue so as to rehabilitate mahouts as well.

10. Respondent No.3 has taken all steps without

any compromises to ensure the wellbeing of each and every

Elephant which has been sent to its Camp. It is a matter of

satisfaction that all of the said 153 Elephants as on date

have been treated and kept in the most appropriate and

conducive conditions which is evident from the fact that

large number of Elephants have integrated and formed

themselves into herds and are enjoying a peaceful retired

life.

11. The Respondent No.3 facilities are open to all

Elephants. The Respondent No.3 is a no-profit organization.

The Respondent No.3 does not intend to convert the Camp

into any sort of zoo or carry out any commercial activity

whatsoever.

12. It is contended that there is no prohibition or

restriction on the respondent No.3 carrying out the non-

profit activity of taking care of the rescued Elephants. It is

also contended that the respondent No.3 is not involved in

any commercial activity with these animals and they have

been kept only for rehabilitation and proper care. It is also

contended that respondent No.3 is not having any breeding

centres for these animals. The respondent No.3 is only

concerned with the care and rehabilitation of Elephants and

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other animals. The Elephants who form themselves into

herds in a natural course of their nature and behavior may

intend to breed. However, the respondent No.3 does not

use any artificial means of breeding of the animals.

13. The counsel for respondent No.3 vehemently

submits that the writ petition has been filed with ulterior

motive and malafide intentions to malign the respondent

No.3 which is involved in pious work of animal care due to

animal love and affection and its Trustees.

14. We have considered the submissions made by

the learned counsel for the petitioner as well as learned

counsel for respondent Nos.1 and 3.

15. We have also perused the Wild Life (Protection)

Act, 1972 (said Act). The Indian Elephant - Elephas

Maximus stands at Sr. No.12B of Schedule I of the said Act.

Section 40 of the said Act deals with Declarations to be

made by persons in possession of animals or animal article.

The portion of Section 40 relevant to us reads as under:

"(2) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or 420 otherwise transfer or transport any

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animal specified in Schedule I or Part ll of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer.

[(2A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wild Life (Protection) Amendment Act, 2002 (16 of 2003) acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part Il of Schedule II, except by way of inheritance.]

[(2B) Every person inheriting any captive animal, animal article, trophy or uncured trophy under sub-section (2A) shall, within ninety days of such inheritance make a declaration to the Chief Wild Life Warden or the authorised officer and the provisions of sections 41 and 42 shall apply as if the declaration had been made under sub-section (1) of section 40:

Provided that nothing in sub-sections (2A) and (2B) shall apply to the live elephant.]"

16. Thus while no person other than one having a

certificate of ownership can acquire, receive or keep any

animal from Schedule I in his possession as per Section

40(2A), the proviso in the Section carves out exception in

case of live Elephants. This permits private individuals to

have ownership over live Elephants. Next Section 43 states

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that no person having in his possession any captive animal

shall transfer the animal by way of sale or transaction of a

commercial nature.

17. The case of the Petitioner that the 1st

Respondent should not have allowed transfer of the 4

Elephants from Karnataka is based on an article from a

news paper website. The article when read itself shows that

the four female Elephants mentioned therein belonged to a

private family. We find from the article itself that the

private family had first acquired the Elephant in pursuance

of their offer to take care of them as they were then circus

Elephants. Since the handlers were unable to look after

them they were sought to be returned. The Respondent

No.3 appears to have given them refuge. We do not find

any transaction of a commercial nature in this. Even

otherwise it is not the case of the Petitioner that the

transaction was of a commercial nature.

18. In such cases where the Elephants are or were

private owned, the question of involvement of Forest

Authorities in minimal and limited only to the extent of

granting a transfer permit in accordance with Rule 125-e of

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the Central Motor Vehicle Rules. We therefore find nothing

wrong with the relocation of the Elephants to the

Respondent No.3. We also do not see anything wrong in

other instances of transfers private Elephants which are

loosely stated in the Petition. In fact the only aspect

relevant for relocation of an Elephant which is privately

owned is the consent of the person in whose possession the

Elephant is, such consent having been given without any

element of commercial transaction. Once such consent is

given it is incumbent on authorities to grant transfer

permits in accordance with law.

19. The Petitioner's case about preference being

given to Respondent No.3 Trust and its capability required

attention. We have gone through the Counter and the

presentation submitted across the Bar. We have also

perused photographs of the Elephants themselves and the

facilities of the Respondent No.3 Trust. We are satisfied

that the Respondent No.3 is a bonafide Trust which is

carrying out a laudable object. To satisfy our conscience,

we intend to bind the Respondent No.3 to its statements

made in the Counter and also across the Bar and give

directions in this regard at the end of our judgment.

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20. The Petitioner has alleged preference being

given to the Respondent No.3 Trust. We find that the said

allegation is without any data or basis. In so far private

Elephants are concerned, we have already expressed our

view as above. In so far as Elephants which are possession

of the Central or State Government is concerned, we find

that there is no bar in the forest or wildlife authorities of

the Central or State Governments in relocating Elephants as

per their choice. This is for the reason that the bar of

Section 43 of the said Act applies only to private persons.

Also, the decision to relocate Elephants would be purely a

policy decision affecting no rights of any party. We are

fortified in holding so by a judgment of this Court in Writ

Petition No.18442-443 of 2012 decided on 13th March 2013

in which it was held as under:

"4. During the course of submission, the petitioner's counsel has placed reliance on Section 43 of the Wild Life (Protection) Act, 1972 which deals with regulation and transfer of animals. We have perused the said section. It states that no captive animal in respect of which a person has certificate of ownership can transfer by way of sale or offer for sole or by any other mode of consideration of commercial nature. Sub-section (2) of the said provision also states that where a person transfers or transports from the State in which he resides

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to another State or acquires by transfer from outside the State, any such animal in respect of which he has a certificate of ownership, then he must intimate to the Chief Wild Life Warden or the authorized officer within whose jurisdiction the transfer or transport is effected. The said section, in our view, deals with the transfer of captive animal by the owner or a private person. Section 2(24) of the above Act defines a 'person' to include a 'firm'. The expression 'person' cannot encompass within its meaning a 'State Government.'

5. In the instant case, the State Government in its wisdom has taken a policy decision for the translocation of the Elephants having regard to the expenditure to be incurred in maintaining the said Elephants and other considerations. These are matters within the realm of the State Government. This Court, in exercise of its jurisdiction under Article 226 of the Constitution cannot sit in judgment over the decision of the State Government to translocate the Elephants concerned."

21. The Petitioner's case that restrictions must be

brought in to prevent sterilization of Elephants is a

contention that only requires to be stated to be rejected.

The Hon'ble Apex Court in Shanti Prasad Nayak vs. Union of

India1 in which the following observations were made:

"18. At this juncture, we are obliged to take note of the submission made by Mr. Tapesh Kumar Singh, learned counsel appearing for State of Jharkhand that State of West Bengal has decided to take a regressive step by introducing contraceptives so that the

(2014) 15 SCC 514

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Elephants do not procreate and consequently the accidents of the present nature are avoided. If it is so, it is absolutely impermissible and also condemnable. Mr. Avijit Bhattacharjee, learned counsel appearing for the State of West Bengal shall take instructions in this regard and file an affidavit of the competent authority. However, as advised at present, we restrain the authorities of the State of West Bengal from taking any steps to administer any kind of contraceptives or introducing any method of sterilization which hinders natural procreative process of the Elephants or any wildlife."

22. In view of the above words of the Hon'ble Apex

Court, we find that the last request of the Petitioner is

condemnable to say the least. In this regard, we record the

submission of the Respondent No.3 Trust that it does not

promote breeding and it does not intend to be a breeding

centre. However we intend to bind the Respondent No.3

with the added responsibility that in cases where Elephants

at their facility by natural procreative process produce any

calves, the Respondent No.3 shall report the same to the

local authorities within 48 hours and the Respondent No.3

shall give an undertaking to the local authorities that they

shall provide for and take care of the said calves.

23. The Petitioner's case regarding execution of gift

deeds without ascertaining source etc. is a frivolous

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argument with no material facts pleaded. The Respondent

No.3 is a public trust of which according to us the Elephants

are beneficiaries. The relationship between them is of

trustee and beneficiary.

24. In view of what we have held above, we do not

see the need of formal documentation for a privately owned

Elephant, especially which is in need of rescue or adoption.

In fact the law does not require any documentation.

According to us, any document with any nomenclature is

sufficient as long as it shows consent and absence of

commercial transaction.

25. We see no reason whatsoever as to why the

153 Elephants, which we would like to refer as adoptee

Elephants, in custody and care of Respondent No.3 should

be disturbed by anyone especially since they are getting

good care, good facilities and seem integrated and well

adjusted.

26. As stated by us above, in order to satisfy our

conscience, we wish to give following directions to the

Respondent No.3. The Learned Counsel for Respondent

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No.3 has agreed and undertaken on behalf of Respondent

No.3 to abide by these directions:

(i) The Elephants that are in the custody and care of the Respondent No.3 Trust, shall till the end of their respective lives, be continued to be given the same care and facilities as specified in the Counter filed in these proceedings.

(ii) In case any more Elephants are relocated to the Respondent No.3's facility by private individuals, organizations, Central or any State Governments or their departments and agencies, the same care and facilities as specified in the Counter filed in these proceedings shall be provided to them for the rest of their respective lives.

(iii) The Respondent No.3 shall not enter into any commercial transaction referred to in Section 43 of the Wild Life (Protection) Act, 1972.

(iv) The Respondent No.3 shall before receiving any further Elephants, ensure that the same infrastructure as present is available and sufficient for the new adoptee Elephants.

(v) The Respondent No.3 shall not use its facilities for any commercial purpose.

(vi) The Respondent No.3 shall not promote breeding by use of any scientific methods. However

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only if as a result of natural procreative process any calves are born, the Respondent No.3 shall report the same, to the local forest authorities in whose jurisdiction they are situate, within 48 hours and the Respondent No.3 shall give an undertaking to the local forest authorities that the Respondent No.3 shall provide for and take care of the said calves.

(vii) The Respondent No.3 shall submit an annual report of its activities and facilities for the Elephants under its care to the local forest authorities in whose jurisdiction they are situated.

27. With the aforesaid directions, we hereby

dispose of the writ petition.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

SJ