Preethy Sreevalsan vs Union Of India
2021 Latest Caselaw 4999 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                       WP(C).No.8906 OF 2017(S)


PETITIONERS:

      1        PREETHY SREEVALSAN, AGED 37 YEARS
               D/O.DR.SREEVALSAN, RESIDING AT TC 5/608,
               CHERUMUKKU TEMPLE ROAD, CHEMBUKKAVU, TRISSUR-680
               020, HONOURARY ANIMAL WELFARE OFFICER,
               ANIMAL WELFARE BOARD OF INDIA.

      2        K.K. RAMACHANDRAN, AGED 41 YEARS
               S/O.KANDUNNI, RESIDING AT KUNDOLI HOUSE, ANCHERI
               P.O., TRISSUR, 680 006, HONOURARY ANIMAL WELFARE
               OFFICER, ANIMAL WELFARE BOARD OF INDIA.

               BY ADVS.
               SRI.M.R.HARIRAJ
               SMT.B.MEERA

RESPONDENTS:

      1        UNION OF INDIA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT,
               FOREST AND CLIMATE CHANGE, INDIRA PARYAVARAN
               BHAVAN, JOR BAGH ROAD, NEW DELHI-110 003.

      2        STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT OF KERALA, DEPARTMENT OF FOREST AND WILD
               LIFE, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      3        PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND
               WILDLIFE, FOREST HEAD QUARTERS, STATE OF KERALA,
               VAZHUTHAKAD, THIRUVANANTHAPURAM-695 014.

      4        CHIEF WILD LIFE WARDEN, FOREST HEAD QUARTERS, STATE
               OF KERALA, VAZHUTHAKAD, THIRUVANANTHAPURAM-695 014.

      5        ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST,
               BIO DIVERSITY CELL, FOREST HEAD QUARTERS, STATE OF
               KERALA, VAZHUTHAKAD, THIRUVANANTHAPURAM-695 014.
 WP(C).No.8906 OF 2017(S)
                                    :: 2 ::


         6         KERALA STATE ANIMAL HUSBANDRY DEPARTMENT,
                   DIRECTORATE OF ANIMAL HUSBANDRY, VIKAS BHAVAN,
                   THIRUVANANTHAPURAM-695 033.

         7         DR.P.B. GIRIDAS, VETERINARY SURGEON, DISTRICT
                   ANIMAL HUSBADRY DEPARTMENT, THRISSUR-680 003.

         8         DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS,
                   THIRUVANANTHAPURAM-695 014.

         9         COMMITTEE CONSTITUTED UNDER R.10 OF CAPTIVE
                   ELEPHANTS MANAGEMENT AND MAINTENANCE RULES, 2012,
                   REPRESENTED BY ITS CHAIRMAN,
                   DISTRICT COLLECTOR, TRISSUR DISTRICT,
                   CIVIL STATION, AYYANTHOL, TRISSUR-680 003.

         10        ASSISTANT CONSERVATOR OF FOREST,
                   SOCIAL FORESTRY, PALACE ROAD,
                   CHEMPOOKKAVU P.O., TRISSUR-680 020.

         11        ANIMAL WELFARE BOARD OF INDIA,
                   REPRESENTED BY ITS SECRETARY, 13/1,
                   3RD SEAWARD ROAD, VALMIKI NAGAR,
                   TIRUVANMIYOOR, CHENNAI-600 041.

         12        CHANDRAN. O., OTTAPATH HOUSE,
                   EDAKUNNI VILLAGE, TRISSUR-680 306.

                   SRI.P.VIJAYAKUMAR, ASG FOR R1,
                   R1 BY ADV. SMT.PREMLATHA K. NAIR, CGC
                   SRI. B.R.MURALEEDHARAN, SR.G.P. FOR R2-R6 & R8-R10
                   R1 BY ADV.SRI.SANDESH RAJA.K.SPL.G.P.FOREST
                   R12 BY ADV.SRI.N.MAHESH
                   R11 BY ADV.SMT.M.U.VIJAYALAKSHMI



     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.8906 OF 2017(S)
                                            :: 3 ::


                                         JUDGMENT

Dated this the 11th day of February 2021

S.MANIKUMAR, C.J.

Instant writ petition is filed in public interest for a direction to seize the

elephant, in possession of Mr. Chandran O., Ottapath House, Edakunni Village,

Thrissur, the 12th respondent under Section 50(c) of the Wildlife (Protection)

Act, 1972, since the elephant, according to the petitioner, is in illegal

possession of the 12th respondent. Further prayer sought for is to issue a writ

of mandamus or other appropriate writ, order or direction commanding the

Secretary, Animal Welfare Board of India, Tiruvanmiyoor, Chennai, the 11 th

respondent to appoint a team of experts consisting respondent medical team,

to examine the elephant Choppy Kuttisankaran and report the present medical

condition of the elephant. Another prayer sought for is to issue a writ of

mandamus or other appropriate writ, order or direction commanding the

official respondents to provide necessary medical treatment, care to the

elephant Choppys Kuttisankaran based on the report of the expert team of the

11th respondent and to rehabilitate the elephant in a proper facility available

under the 2nd respondent.

2. I.A.No.1 of 2020 has been filed in this writ petition under Section 155

of the Kerala High Court Rules seeking permission to amend the writ petition

as follows:

WP(C).No.8906 OF 2017(S) :: 4 ::

"After Para 23 in facts add

"23 (A). Counter affidavits have been filed by respondent No.12 as also respondent No.2-6 and 8-10. From the counter affidavit of the Respondents 2-6 & 8-10 [and documents thereof,] following facts are clear.

a) No ownership certificate is issued in favour of any person with respect to the elephant in question.

b) When microchip certificate (Annexure R2(A)) was issued, the elephant was called "Sai Krishnan" and was possessed by one Smt. Haripriya.

c) It is stated in Annexure R2(A) that the elephant is born in Bihar and was aged 11 years on 2/10/2006.

d) By a gift deed" elephant was handed over to one Mr Joyce Joseph. The reason for the "gift" is that Smt. Haripriya is unable to look after the elephant and that Mr. Joyce Joseph is her 'intimate friend". The responsibility of the elephant from that day, it is stated, would be with Mr. Joyce Joseph.

e) The above transaction, states the official respondents, is evidently a commercial transaction under the guise of a gift which is prohibited under Section 43 of the 1972 Act.

f) In an identical manner, Mr. Joyce Joseph "gifted the elephant to the 12 th respondent by Annexure R2(B) and thus the elephant remains with the 12 th respondent.

g) The 12th respondent has submitted Annexure R2(E) which is the declaration under Section 40(4) of the 1972 Act, on 15.3.2016, based on Exhibit P4.

The above facts clearly indicates that the respondents 12-14 have committed various offences under the 1972 Act and other provisions of law. The respondents 2-4, who are duty bound to take action against such criminal offences as failed in their duty to take any action. This warrants interference from this Honourable Court.

After ground E add

F) The elephant admittedly is aged 11 years in 2006. Thus it was born after 1986, the hunting of such any wild animal is prohibited under Section 9 except in accordance with Sections 11 and 12 of the 1972 Act. If an elephant, a Schedule I animal, is be it can be hunted only with the permission of the WP(C).No.8906 OF 2017(S) :: 5 ::

Chief Wildlife Warden of the respective state under Section 11(1)(a) of the 1972 Act. Such hunting can be permitted only on specific grounds. Once hunted the elephant can be retained in captivity only after a decision in accordance with proviso to Section 11(1)(a) is taken. Hunting includes capturing, coursing, driving etc. of a captive animal also Section 2(16) of the 1972 Act). It is apparent that neither any permission under Section 11 nor any decision under proviso to Section 11(1) is there in respect of the elephant in question Respondents 12-14 have thus committed offences punishable under Section 51 read with Section 9 of the 1972 Act. Official respondents responsible to take action in this regard have miserably failed to do so, despite information regarding the same. They have thus failed in their duty under the Act.

G) As per Section 39 of the 1972 Act, any wild animal hunted under Section 11(1), bread in captivity or hunted in a contravention of any provisions of the Act or any animal article derived such animal shall be the property of the State Government. As such the elephant in question, apparently captured in Bihar, would be in property of State of Bihar. It is for the respondents 12-14 to show how they are in possession of a property which belongs to State of Bihar. As per Section 39(2), any person obtaining possession of such government property shall report it to the nearest Police Station or Authorized Officer and dispose the property as directed by them. Respondents 12 to 14 have not made such reports. As per Section 39(3) such government properties cannot be acquired or retained in possession, custody or control or transferred to any person by any means including gift, without prior permission of the Chief Wildlife Warden or the Authorized Officer. No permission under this provision is taken before gifting the elephant by respondents 12 & 13. Evidently respondents 12-14 have committed offences punishable under Section 51 read with Section 39 of the 1972 Act. Official respondents responsible to take action against the same have refused to do so despite information

H) As per Section 40 no one shall acquire, receive, keep in his control, custody or possession or transfer or transport an elephant except with previous permission of the Chief Wildlife Warden or Authorized Officer Respondents 12-14 have violated the said provision and have thus committed offence punishable under Section 51 read with Section 40 of the 1972 Act.

I) As per Section 2(11) a person carrying on the business of buying or selling any captive animal, including one who undertake the business in a single transaction is defined as a "dealer". No person shall carry on the business of a dealer without a license under Section 44 of the 1972 Act. Clearly the elephant has teen transferred multiple times. Respondent 12-14 have committed offences punishable under Section read with Section 44 of the WP(C).No.8906 OF 2017(S) :: 6 ::

1972 Act.

J) There is express prohibition under Section 43 for commercially transferring the elephant. Circumstances clearly show that the elephant has been transferred on commercial basis multiple times Respondent 12-14 have committed offences punishable under Section 51 read with Section 43 of the 1972 Act.

K) Official respondents are apparently in the know of the fact which disclosed offences under Section 51 read with Sections 9, 39, 40, 43 and 44 of the 1972 of the Act by respondents 12-14 in respect of the elephant in question. Despite clear knowledge, no action has been taken Official respondents have failed in their duty to take action in respect of offences committed under the 1972 Act. It is also pertinent to point out that offences under Section 51 read with Sections 9, 39, 44 and 48 of the 1972 Act are included in scheduled I of the Prevention of Money Laundering Act, 2002. As per the provisions of the said act property derived directly or indirectly by commission of offences included in the schedule is liable to be attached and forfeited to the Central Government Official respondents ought to have ensured proper criminal proceedings in this regard and take necessary action under the Prevention of Money Laundering Act, 2002 also.

L) It is seen that the respondent State Government has been issuing microchip certificate, data book, medical certificate and also permission to exhibit elephants to persons having possessions of the animal without verifying the legality of the possession of the animal An ownership certificate under Section 42 can be issued only if there is lawful possession. No other kind of certificate is contemplated under the act. Possessing an animal without said certificate under Section 42 is illegal. As such by issuing certificates which are not contemplated under the Act or rules the official respondents are defeating the provisions of law and permitting the violation of the Act with immunity. This is illegal and arbitrary.

M) Exhibit R2(A) shows the length of the tusk of the elephant on 2/10/2006 as 57 cm and 56 cm respectively. In 2016 Annexure R2(C) is issued. The tusks have become shorter and measures 46 cm and 51 cm respectively. After 4 years in 2018, the tusk is seen to be longer having 77cm and 76 cm Evidently the tusk of the elephant has been cut and removed in between, again showing commission of offences under various provisions of the 1972 Act.

in the prayer after (iv) add

"iv) (a) To issue a writ of mandamus or other appropriate writ, order or direction commanding respondents to take action against respondents 13 and 14 for violation of the provisions of Wildlife (Protection) Act, 1972; WP(C).No.8906 OF 2017(S) :: 7 ::

(iv) (b) To issue a writ of mandamus or other appropriate writ or order or direction commanding respondents not to grant ownership certificates, microchip certificate or other documents or permissions mandated under law in respect of elephants unless on proper enquiry it is conclusively found that the capture, transfer and possession of the elephant is legally valid;"

3. I.A.No.2 of 2020 has been filed with a prayer to implead Haripriya,

Santhinilayam, Thevalappuram Desam, Pothakkulam Village, Kollam District -

691 507 and Joyce, S/o Joseph, Vattamkuzhiyil House, Kuravilangadu Village,

Menachil Taluk, Kottayam - 686 633, respondents 13 and 14 respectively in this

I.A., as additional 13th and 14th respondents in the writ petition.

4. We have heard learned counsel for the parties and perused the

materials available on record.

5. On consideration of the facts and circumstances of the case, we are of

the view that the prayers sought for in I.A.No.1 of 2020 cannot be granted, as

fresh facts are sought to be introduced in the writ petition. If the grievance

still persists, petitioner can approach the appropriate authority in accordance

with law. Therefore, I.A.Nos.1 and 2 of 2020 are dismissed.

6. While this court was dictating the orders on I.A.Nos.1 and 2 of 2020,

Mr.M.R.Hariraj, learned counsel for the petitioner submitted that permission

may be granted to withdraw the writ petition with liberty to the petitioner to

approach the Government under Section 55(c) of the Wild Life (Protection)

Act, 1972. We place on record the said submission, and therefore there is no WP(C).No.8906 OF 2017(S) :: 8 ::

need to go into merits of the case.

7. In view of the above, we grant permission to withdraw the writ

petition with liberty to petitioners to approach the Government under Section

55(c) of the Wild Life (Protection) Act, 1972. If any such application is filed by

the petitioner, the competent authority is directed to consider the same as to

the maintainability and merits, and pass appropriate orders, in accordance

with law.

All the pending I.As. are closed.

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-

SHAJI P. CHALY JUDGE jes WP(C).No.8906 OF 2017(S) :: 9 ::

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1(a) and (b) A TRUE COPY OF THE IDENTIFICATION CARD ISSUED BY THE 11TH RESPONDENT TO THE PETITIONERS.

EXHIBIT P2 A TRUE COPY OF THE APPLICATION DATED 15/03/2016 UNDER SECTION 40(4) OF THE 1972 ACT.

EXHIBIT P3 A TRUE COPY OF THE INTERIM ORDER DATED 18/08/2015 IN WPC.743/2014 BEFORE SUPREME COURT OF INDIA.

EXHIBIT P4 GO RT 84/2016/F&WLD DATED 26/02/2016.

EXHIBIT P5 A TRUE COPY OF THE INTERIM ORDER DATED 04/05/2016 IN WPC 743 OF 2014.

EXHIBIT P6 (a&b) THE PHOTOS SHOWING THE BLOOD FROM THE WOUND ON THE LEGS OF CHOPPEEYS KUTTISANKARAN, ON THE FLOOR OF THE TEMPLE, AT OLLUR, THRISSUR.

EXHIBIT P7 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER AND AVAILABLE IN THE WEBSITE OF THE CPGSMS.

RESPONDENT'S ANNEXURES

ANNEXURE R2(a) TRUE COPY OF THIS MICROCHIP CERTIFICATE. CERTIFICATE NO 22 DATED 02.10.2006 WITH MC NO 0006595905.

ANNEXURE R2(b) TRUE COPY OF THE TRANSFER DEED DATED 10.8.2010 WITH ENGLISH TRANSLATION.

ANNEXURE R2(c) TRUE COPY OF THE DATA BOOK DATED 28.3.2012.

ANNEXURE R2(d) TRUE COPY OF THE TRANSFER DEED DATED 28.7.2013 WITH ENGLISH TRANSLATION.

ANNEXURE R2(e) TRUE COPY OF THE DECLARATION DATED 15.3.2016.

ANNEXURE R2(f) TRUE COPY OF THE CENSUS REPORT DATED 29.11.2018.

ANNEXURE R2(g) TRUE COPY OF HON'BLE SUPREME COURT VIDE ORDER DATED 4.5.2016 IN IA NOS.25 & 27 IN WPC NO.743/2014.

ANNEXURE R2(h) TRUE COPY OF THE RELEVANT PAGE OF THIS CENSUS REPORT.

ANNEXURE R2(i) TRUE COPY OF THE CERTIFICATE OF VERIFICATION DATED 8.3.2017 GIVEN BY DR.SYAM K.VENUGOPAL.

ANNEXURE R2(j) TRUE COPY OF THE REPORT OF INSPECTION (HEALTH CERTIFICATE) DATED 9.3.2017 OF FOREST VETERINARY OFFICER DR.C.S.JAYAKUMAR.

ANNEXURE R2(k) TRUE COPY OF LETTER NO BDC 1-2468/2019 DATED 2.5.2019 OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE) & CHIEF WILDLIFE WARDEN, KERALA.

ANNEXURE R12(a) TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN WRIT PETITION (CIVIL) NO.743/2014 DATED 1.11.2018.

ANNEXURE R12(b) TRUE COPY OF RELEVANT PAGES OF THE ABOVE REPORT DATED NIL FILED BEFORE THE HON'BLE SUPREME COURT OF INDIA.

// TRUE COPY //

P.S. TO JUDGE