Tripura High Court
Wp(C)(Pil) No.17/2022 vs Union Of India on 7 November, 2022
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HIGH COURT OF TRIPURA
AGARTALA
WP(C)(PIL) No.17/2022
Smt. Sudipa Nath, D/o Mr. Sujit Kumar Nath, permanent Resident of West
Chandrapur, P.S - Dharmanagar, P.O - Chandrapur, District - North Tripura,
Pin-799251, Presently Residing at Ujan Abhoynagar, State Veterinary
Hospital Road, near Blood Sun Club, P.O - Abhoynagar, P.S.-N.C.C, West
Agartala, Pin-799005.
----- Petitioner(s)
Versus
1. Union of India, Through the Secretary, Ministry of Environment and
Climate Change, 2nd Floor, Agni Block, Indira Paryavaran Bhawan, Jorbagh
Road, New Delhi -110003.
2. Principal Chief Conservator of Forests and Chief (Wild Life) Warden,
Aranya Bhawan, Nehru Complex, Gorkhabasti, 79 Tilla, Agartala, Tripura-
799006.
3. Shri Radhe Krishna Temple, Elephant Welfare Trust, Arvind Marg, Lal
Colony, Jamnagar, Gujarat-361001.
-----Respondent(s)
For Petitioner(s) : Mr. Subhankar Bhowmik, Advocate,
Ms. Nipu Patiri, Advocate.
For Respondent(s) : Mr. Bidyut Majumder, Dy. S.G.I.,
Dr. Sujay Kantawala, Advocate,
Mr. M.S. Dey, Advocate.
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Date of hearing : 3rd November, 2022.
Date of judgment : 7th November, 2022.
Whether fit for reporting : YES.
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JUDGMENT & ORDER
(Indrajit Mahanty, C.J.)
Rule made returnable forthwith. Heard all parties.
2. The above PIL petition is filed by practicing advocate in public
interest with prayers to seek a direction restraining transfer and
transportation of captive bred Elephants from Northeast India and in
particular from the States of Tripura and Arunachal Pradesh to an Elephant
Camp of respondent No.3 and the petitioner further seeks an order directing
an inquiry into past transfers and transport of Elephants from North Eastern
States.
3. In support of the prayers sought, the petitioner has relied upon a
news report in the Hindu to show that there are several elephants in captivity
in North East States of India particularly in Tripura, Assam and Arunachal
Pradesh. The petitioner also relies upon a news article in www.nenow.in
which refers to letters of wildlife organization. The petitioner submits
relying on the article that many groups in these States are known to capture
Elephants from the wild and force them into captivity for the purpose of
selling them. The petitioner submits that the State of Tripura and Arunachal
Pradesh propose to transfer around 30 Elephants between them to an
Elephant Camp established by the respondent No.3 in Jamnagar, Gujarat.
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The petitioner submits that the Supreme Court by an interim order dated
04.05.2016 passed in Writ Petition No.743 of 2014 has restrained authorities
from issuing certificate of ownership for captive Elephants and has further
restrained their transfer outside their State. The petitioner submits that
despite this order, transfers have been made in the past and in support of the
said submission the petitioner relies upon a news report of eastmojo, a news
website. The petitioner also submits that Elephants from the North East must
not be transferred to a warmer climate in Gujarat. In this regard, the
petitioner also relies upon an order dated 25.06.2019 passed by the
Guwahati High Court in PIL No.39 of 2019 by which the authorities were
directed to reconsider an order permitting transport of an Elephant for a
religious procession.
4. The petitioner submits that respondent No.3 is a Trust with
uncertain financial capacity. The petitioner further submits that he was
unable to locate the Camp and find any setup or infrastructure to support
large number of Elephants. The petitioner submitted various different types
of actions that according to him the respondent No.3 is doing at the Camp
which amounts to subjecting the Elephants to cruelty. The petitioner has
strenuously urged us to direct the authorities to reclaim the Elephants from
the respondent No.3 to remove them from what according to the petitioner is
a life of torture, suffering and cruelty.
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5. On behalf of the respondent No.3, a written submission is
tendered by Ld. Advocate. The respondent No.3 has relied upon permissions
from authority with respect to establishment of its camp. The respondent
No.3 submits that it is a no-profit organization. The respondent No.3 submits
that it does not intend to convert the Camp into any sort of zoo or carry out
any commercial activity whatsoever. The respondent No.3 has relied upon
an order dated 06.06.2022 passed by the Karnataka High Court in Writ
Petition No.10688 of 2022 with respect to the respondent No.3's camp and
transfers of Elephants to their camp. The respondent No.3 has relied upon an
order of the Supreme Court dated 01.08.2022 by which the order dated
06.06.2022 of the Karnataka High Court is confirmed. While denying the
petitioner's allegations regarding lack of facilities and subjecting the
Elephants to torture or cruelty, the respondent No.3 has relied upon
photographs annexed to the Counter of its camp to show the high scale and
standards of facilities that is provided to Elephants at the camp.
6. The respondent No.3 has submitted that it has considered the
request to receive at its camp, from respective private owners in Tripura and
Arunachal Pradesh, 23 Elephants. It is submitted that the respondent No.3
only accepts Elephants after verification of their Certificate of Ownership
and taking necessary permissions. It was further submitted that while the 23
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Elephants have been considered by them for the Camp, in respect of some
Elephants from Tripura the respondent No.3 is itself in the process of
verification. It is submitted that the respective owners are unable to maintain
these Elephants and, therefore, proposed to transfer them to the respondent
No.3 for their lifelong care. The respondent No.3 has submitted that except
receiving the Elephants there is no monetary element in the transaction. The
respondent No.3 has also submitted that the petitioner has misunderstood the
scope and purport of the order dated 04.05.2016 passed by the Supreme
Court in Writ Petition No.743 of 2014.
7. Rival contentions now fall for determination. We have gone
through the record and the relevant legal provisions.
8. Before dealing with the rival contentions, we have considered
for ourselves the issue whether the law permits transfer of captive Elephants
from one person to another. In this regard, we found a complete answer in an
order dated 06.06.2022 passed by the Division Bench of the Kanataka High
Court in Writ Petition No.10688 of 2022 and in particular, the following
portion:-
"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.
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15. We have also perused the Wild Life (Protection) Act,
1972 (said Act). The Indian Elephant-Elephas Maximus stands at Sr.
No.128 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 otherwise transfer or transport any animal specified
in Schedule I or Part II 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 authorized 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 II 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
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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 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 newspaper 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
privately 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 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
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is given it is incumbent on authorities to grant transfer permits in
accordance with law."
9. We are in respectful agreement with the views expressed by the
Division Bench of the Karnataka High Court. This view is confirmed by the
Supreme Court vide its order dated 01.08.2022 in SLP No.12246 of 2022.
We are satisfied that law permits a private owner of a captive Elephant to
transfer the same as long as the transaction is not of a commercial nature.
10. We only add that we are also of the view that, not just should
there be an absence of exchange of consideration in the transfer, but purpose
of the eventual transfer should also, should not be of a commercial nature.
That means the person or body to which the Elephant is being transferred
should not put the Elephant to any commercial use. It has to be ensured that
Elephants are not put to use or transferred out of the States for any
commercial activity like doing labour, participating in parades, ceremonies,
tourist safaris, rides, circus, begging etc. as these would be in the realm of
commercial nature.
11. We now consider the case of the petitioner.
12. We would first consider whether the interim order dated
04.05.2016 bars authorities from issuing ownership certificates and transfer
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permissions. The part of the said order on which the petitioner relies is as
under:-
"Having heard the learned counsel for the parties, we think it
appropriate that the submission raised in both the interlocutory
applications shall be dealt with while dealing with the three
submissions that have been raised by Mr. Sundaram, learned senior
counsel appearing on behalf of the Animal Welfare Board. While we
are of the view that the said issues raised shall be dealt with at the
final stage of hearing, we think it apt to direct that the State
Government shall not issue any ownership certificate to any of the
persons in possession of elephants. That apart, the persons who are
in possession of elephants shall not transfer the elephants outside the
State nor shall they part with the elephants by way of transfer in any
manner. If any ownership certificate has been issued in the
meantime, the same shall be withdrawn subject to the final verdict of
this Court."
13. We have gone through the entire order dated 04.05.2016 and
several orders prior and subsequent thereto which have been passed by the
Supreme Court in the said Writ Petition No.743 of 2014 and Interim
Applications filed therein. Having gone through the same, we are unable to
agree with the contention of the petitioner that the interim order dated
04.05.2016 is a bar against the respondent authorities from issuing
ownership certificates and transfer permissions.
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14. It appears from the order dated 04.05.2016 itself that it was
passed on Interim Applications No.25 and 27 taken out in Writ Petition
No.743 of 2014. The relevant part is as under:-
"UPON hearing the counsel the Court made the following
ORDER
In these two interlocutory applications, though numerous
prayers have been made, the basic relief, as we perceive, relates to
quashing of G.O. (Rt)No.84/2016/F&WLD dated 26.02.2016 issued
by the Government of Kerala, Respondent No.9 and cancellation of
any ownership certificate issued in pursuance of the said
notification."
15. The scope of the Interim Applications, therefore, was the
Government order dated 26.02.2016 issued by the State of Kerala. The said
Government order dated 26.02.2016 has been produced in the Written
Submission filed by the respondent No.3. The said Government order
appears to have permitted grant of Certificate of Ownerships for 289 captive
Elephants in an amnesty scheme. The said Government order was assailed
by virtue of the above two Interim Applications in Writ Petition No.743 of
2014 and in that context, the Supreme Court directed the State Government
i.e. the State Government of Kerala not to issue any Certificate of
Ownership with regard to the said Elephants.
16. In fact from several prior orders passed in Writ Petition No.743
of 2014, it appears that directions were issued by the Supreme Court to
contain the meting out of cruelty to Elephants either in temples or tourist
sites. In fact by a subsequent order dated 01.11.2018 the Supreme Court has
directed issuing of provisional Certificate of Ownership to even those
Elephants.
17. We are, therefore, of the clear and considered view that the
order dated 04.05.2016 was passed only with respect to 289 captive
Elephants in the State of Kerala. The said order dated 04.05.2016 passed in
Writ Petition No.743 of 2014 would not apply to other captive Elephants or
other States except the 289 captive Elephants in the State of Kerala.
18. The petitioner also submitted before us for various reasons that
the Elephants at the respondent No.3's camp must be reclaimed and inquiry
into transfers be ordered. We are afraid we cannot pass such an order as
sought by the petitioner. This issue is final and settled by the judgement of
the Karnataka High Court as confirmed by the Hon'ble Supreme Court.
Those orders in fact this impose an obligation on the respondent No.3 to take
care of Elephants, once accepted, for their lifetime. The Karnataka High
Court in its order, at paragraph 26(i) of its order directed that "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". It
is therefore not open for any Elephant under the custody of the respondent
No.3 to be shifted out of the respondent No.3's camp.
19. This takes us to the petitioner's next contention that several
groups in North East undertake the activity of capturing young Elephants
and selling them. The petitioner expresses an apprehension that Elephants
proposed to be transferred to respondent No.3 would or could be such
Elephants. In the present case, the petitioner has not supplied material
particulars with respect to the 30 Elephants cited in the Petition. The
respondent No.3 has listed out the names and microchip numbers of 23
Elephants and stated that at present they are only considering these 23
Elephants of which ones from Tripura are being verified.
20. The respondent No.3 has strongly opposed the above contention
of the petitioner and submitted that it has conveyed acceptance or is
considering only those Elephants for which there exists a valid Certificate of
Ownership and permissions from the relevant authorities. The respondent
No.3 has also submitted that several Elephants are of older ages and even
sub-adults are more than 5 years old, therefore, the respondent No.3 submits
that the allegation of capturing the Elephants from the wild is a fanciful
allegation made without any supporting material whatsoever.
21. We are broadly in agreement with the submissions of the
respondent No.3 on this aspect. We also find such a contention of the
petitioner to be totally speculative with no supporting material. The fact that
the 23 Elephants are referred to with their microchip numbers would
indicate that these are captive Elephants. Moreover, it is not disputed that
Certificates of Ownership under Section 42 of the Wild Life (Protection)
Act, 1972 are issued in respect of these Elephants by the competent
authorities. Their ages also indicate to us that these are not young calves
captured from the wild. The act of issuing such Certificate is an official act
and no evidence or reason much less a convincing one is before us to not go
by the statutory presumption under Section 114(e) of the Evidence Act,1872
that such official action has been regularly performed.
22. However, insofar as the petitioner's apprehension as a general
concern that Elephants should not be captured from the wild, we are of the
view that directions in this regard can certainly be given to a specialized
statutory body viz. Project Elephant. Notably, Project Elephant was
launched by the Government of India in 1992 as a centrally sponsored
scheme with the objectives of protecting elephants, addressing man and
animal conflicts and welfare of captive elephants.
23. The next set of submissions of the petitioner were allegations
regarding cruelty and the incapacity, inexperience or so to say incompetence
of the respondent No.3 to take proper care of the Elephants, lack of proper or
enough food, lack of veterinarian care, proper staff and so on. Since no
material whatsoever was placed before us in this regard we are unable to
express any view on the allegations. The respondent No.3 strongly opposed
this aspect of the petitioner's case. It was submitted before us that the
respondent No.3 is carrying out the objective of welfare of Elephants in
utmost good faith.
24. The respondent No.3 place strong reliance on the order dated
06.06.2022 passed by the Karnataka High Court to state that the Court found
the Trust to be a bona fide Trust carrying out a laudable object. Respondent
No.3 has specifically brought to our attention the following paragraph of the
said order:
"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 judgement."
25. While we are broadly in agreement with the submissions of the
respondent No.3 and find such allegations of the petitioner to be totally
speculative and unsupported by any material, at the same time, we believe
that sunlight is the best disinfectant and, therefore, we propose to pass
certain directions in this regard which could very well clear the air either
way. We are of the view that it would be in the interest of all concerned,
especially the Elephants and perhaps even for the Trust if a detailed
verification by a body of competent persons and experts is carried out as we
propose to do by this order.
26. The last submission of the petitioner was that the captive
Elephants must not be transferred from North East States to Jamnagar,
Gujarat, which according to the petitioner is almost an arid desert and the
climate there is more warmer. It was also submitted that the long journey
would be torturous to the Elephants. The respondent No.3 has shown to us
several aspects of its facility which is catering to about 172 Elephants at
present to show that weather conditions are not adverse to the interests of the
Elephants. The respondent No.3 has also relied upon past transfers from
long distances and submitted that these transfers have taken place under
expert and professional supervision with no harm to the Elephant. According
to us the above and other rival contentions give rise to disputed questions of
facts which as a writ court, we cannot determine. Despite this, we propose to
take care of these contentions as well in our final directions.
27. To our minds, the following disputed questions arise from the
petitioner's allegations, albeit, without material, but pertinent enough to us
and allegations that must be ascertained by the authorities, if nothing then
out of caution, before transfer of these 23 Elephants;
a. Whether there exists any transaction of a commercial
nature in the transfer of any of the 23 Elephants in question?
b. Whether Elephants at the Elephant Camp of respondent
No.3 are subjected to any form of cruelty?
c. Whether permissions granted to the Elephant Camp of
the respondent No.3 are in force and valid as on date?
d. Whether the infrastructure and facilities of the Elephant
Camp of the respondent No.3 are conducive to housing captive
Elephants for lifelong care?
e. What is the current status of housing, food and veterinary
care being provided to the 23 Elephants by their respective
owners?
f. Whether there is sufficient veterinary care adhering to a
standard of reasonable care available at the Elephant Camp of
the respondent No.3?
g. Whether the Elephant Camp of the respondent No.3 has
sufficient infrastructure and space to accommodate the
proposed 23 Elephants?
h. Whether the respondent No.3 has sufficient cash flow or
financial capacity to manage existing and 23 additional
proposed Elephants?
i. Whether there exist sufficient, competent and qualified
staff to manage the care of the existing and 23 additional
proposed Elephants?
j. Whether the Camp of the respondent No.3 is of a
commercial nature and is operated for any commercial purpose?
k. Whether there is any mechanism to ensure no cruelty is
meted out or mismanagement occurs in relation to the Elephants
at the camp of the respondent No.3?
l. Whether climatic conditions at the Elephant Camp of the
respondent No.3 are conducive to Elephants?
m. Whether the Elephants at the camp of respondent No.3
are handled using humane and proper techniques?
n. What are the causes of casualties, if any, at the Elephant
Camp of the respondent No.3 and whether such causes are on
account of any action, omission or breach of standard duty of
care by the respondent No.3?
o. Whether the transfer of the 23 Elephants to the Elephant
Camp of the respondent No.3 will be in the interest of some or
all of the said Elephants after conducting a comparative analysis
of the existing status and quality of housing, food and
veterinary care being provided by their respective owners and to
be provided by the respondent No.3?
p. As transfer of the proposed 23 Elephants would require
their relocation to another place, whether on overall assessment
of all factors, the transfer would be in the paramount interest of
the Elephant?
28. As stated earlier, a writ court would be unequipped to
determine disputed questions of facts. However, we propose to form a High
Powered Committee (HPC) to be headed by retired Judge of the Hon'ble
Supreme Court of India, Hon'ble Mr. Justice Deepak Verma who himself is
an avid animal lover and has dealt with several matters relating to animals.
We further propose to appoint expert members to the said HPC to assist the
Chairperson. We propose to appoint, the Director General of Forests (Union
of India), Head of Project Elephant Division (MoEF) and Member Secretary
(Central Zoo Authority of India), the Chief Wild Life Warden (State of
Gujarat), the Chief Wild Life Warden (State of Tripura) and the Chief Wild
Life Warden (State of Arunachal Pradesh). We further propose that the
Chairman of the said HPC shall co-opt an expert having experience about
Elephants as a member of such HPC. The Chairman may also consider
taking assistance from the Chairman of the Animal Welfare Board of India
(AWBI).
29. The said HPC to be chaired by Hon'ble Mr. Justice Deepak
Verma shall treat the questions framed by us in paragraph 27 above as
'Terms of Reference' and carry out the necessary fact finding exercise.
Thereafter the Chairperson of the HPC shall make his report and provide a
copy to all concerned. The Chairperson of the HPC shall then send his
recommendation Elephant wise to the concerned Chief Wild Life Warden of
the concerned State either recommending or not recommending the
completion of the transfers, as the case may be.
30. In case the Chairperson of the HPC recommends that an
Elephant or Elephants should not be transferred, then the concerned Chief
Wild Life Warden shall take steps to either confiscate the Elephant or take
an undertaking from the concerned owner that the Elephant shall be taken
care of without any cruelty. In case where such undertaking is taken, the
concerned Chief Wild Life Warden shall be bound to monitor the Elephant
concerned in regular intervals and take further steps, if necessary,
accordingly.
31. In cases where the Chairperson of the HPC recommends that an
Elephant or Elephants be transferred to the camp of the respondent No.3, the
concerned Chief Wild Life Warden shall ensure that the transfer of the
Elephant is undertaken in the most appropriate manner conducive to the
Elephants and further the concerned Chief Wild Life Warden shall request
the jurisdictional police to ensure smooth passage of the Elephant
concerned. Such jurisdictional police shall be bound to render all assistance
to ensure smooth passage of the Elephant concerned.
32. Before parting, we would like to record that despite our limited
knowledge of the subject, we are conscious of the stark distinction between
a Captive Elephant and an Elephant in the wild. In our reading and
understanding of the subject, once an Elephant is bred in captivity or is in
captivity for several years, the hope of their reintroduction in wild is bleak.
A lifetime or even a reasonably long time in sheltered existence is sufficient
to incapacitate an Elephant from surviving in the wild. They seldom learn
crucial survival skills and are too habituated to human contact. Lacking a
natural fear of humans, they are vulnerable to poachers and ill equipped for
life in the wild. These creatures become so imprinted with humans and
dependent on humans that their survival in the wild becomes next to
impossible. In such a situation finding a safe, restful and tranquil home for
them must be the paramount consideration of all concerned. If the HPC finds
that the camp of the respondent No.3 is such safe, restful and tranquil home
then we do not think the Court, authorities or any citizen can come in the
way, but if it is not, then the authorities must take all steps to find a safe,
restful and tranquil home for Elephants who are in captivity.
33. We are also conscious of the fact that it becomes difficult for
private individuals or Forest and Wildlife Departments to take care of
captive Elephants for reasons of lack of manpower, finances, space and
infrastructure. There is nothing wrong in taking assistance of camps and
facilities run by trusts and welfare organizations. However, in all cases the
paramount consideration must be the welfare of the Elephants.
34. In view of the aforesaid, we pass the following order:-
a. We direct the Project Elephant Division of the Ministry
of Environment, Forests and Climate Change to issue necessary directions to
all Chief Wild Life Wardens to take all steps necessary to curb and put to an
end, the capturing of wild Elephants, if any, from the wild including:-
i. Directing a census of all Elephants in captivity of private
persons or Government departments and creation of an
inventory of the same with their name, details of ownership
certificate, microchip number and photograph.
ii. Directing inspection and verification of Certificate of
Ownerships of all Elephants in captivity and in case there is no
Certificate of Ownership, to either issue a provisional
Certificate of Ownership or confiscate the Elephant after
carrying out necessary inspection and verification of the history
and source of the Elephant.
iii. Directing a proper DNA sequencing for new offspring to
be conducted so as to identify and prevent capture of young
Elephants from the wild.
b. We do hereby appoint a High-Powered Committee
(HPC) under the Chairmanship of Hon'ble Shri Justice Deepak Verma
(Former Judge, Supreme Court of India). We hereby appoint the following
persons (by designation) as members of the said HPC:
i. Director General of Forests (Union of India);
ii. Head of Project Elephant Division (MoEF);
iii. Member Secretary (Central Zoo Authority of India);
iv. Chief Wild Life Warden (State of Tripura) for Elephants
from State of Tripura; and
v. Chief Wild Life Warden (State of Gujarat).
c. The Chairman of the HPC shall co-opt an expert having
experience of Elephants as a member of such HPC. The Chairman may also
consider taking assistance of the Chairman, Animal Welfare Board of India
for the purposes of the HPC.
d. All other members of the HPC shall render all assistance
and for that purpose shall use all powers vested in them including taking
assistance of other officers of their respective departments as directed by the
Chairman and also to take assistance of the local police as and when
necessary, to enable the HPC to carry out the functions requisitioned by this
order.
e. The members of the HPC shall carry out a thorough and
detailed physical inspection of the Trust. They shall be entitled to access and
inspect all areas and facilities of the Trust. They shall be entitled to access
and inspect all documents of the Trust. They shall also be entitled to
interview and question the staff and officers of the Trust. The HPC is
requested to carry out the inspection at the earliest and in any case within 10
days from the date of this order.
f. The respondent No.3 is directed not to interfere with or
restrict the members of the HPC from carrying out their inspection in any
manner that they deem fit. The Chairman shall be entitled to take assistance
of as many professionals, including photographers, videographers, vets,
architects as he deems fit, for the purpose of the inspection.
g. The respondent No.3 shall render all assistance and
provide all necessary arrangements as requisitioned by the Chairman of the
HPC for the purpose of the inspection.
h. The Chairman of the HPC may direct formation of one or
more groups consisting of at least 3 members (of which at least one should
be from the HPC and other experts) to carry out a physical inspection at the
current location of the 23 Elephants and submit factual findings on such
questions as the Chairman may deem fit and proper including on the
allegation that they are purported to be captured from the wild. Due regard
would be had to the said factual findings in the report.
i. The HPC shall in the first instance make a report on the
questions in paragraph 27 of this order and it shall endeavour to do the same
within a period of two weeks from the date of communication of this order.
j. The Chairman of the HPC shall make a report and
provide a copy of the same to all concerned preferably within a period of
two weeks from the date of communication of this order.
k. The Chairman of the HPC shall then forward his
recommendation Elephant-wise to the concerned Chief Wild Life Warden
either recommending or not recommending the completion of the transfers,
as the case may be.
l. In case the Chairperson of the Committee recommends
that an Elephant or Elephants should not be transferred, then the concerned
Chief Wild Life Warden shall take steps to either confiscate the Elephant or
take an undertaking from the concerned owner that the Elephant shall be
taken care of without any cruelty. In case where such undertaking is taken,
the concerned Chief Wild Life Warden shall be bound to monitor the
Elephant concerned in regular intervals and take further steps if necessary
accordingly.
m. In cases where the Chairperson of the Committee
recommends that an Elephant or Elephants be transferred to the camp of the
respondent No.3, the concerned Chief Wild Life Warden shall ensure that
the transfer of the Elephant is undertaken in the most appropriate manner
conducive to the Elephants and further the concerned Chief Wild Life
Warden shall request the jurisdictional police to ensure smooth passage of
the Elephant concerned. Such jurisdictional police shall be bound to render
all assistance to ensure smooth passage of the Elephant concerned.
n. In case the Chairman of the HPC finds any other fault or
discrepancy, he shall forward its report with necessary recommendation for
taking necessary corrective steps or action to the Secretary, Ministry of
Environment, Forest & Climate Change, Secretary, Forest Department of
States of Gujarat, Tripura and Arunachal Pradesh as necessary or deemed fit
by the Chairman of the HPC.
o. We direct that all police authorities, officers of forest and
wild life departments, officers of the Central Zoo Authority, Project
Elephant and officers of the Ministry of Environment, Forest and Climate
Change, to whom a request for assistance is made by the Chairman of the
HPC, shall be bound and liable to render all necessary assistance to the HPC
and its members to carry out the functions of the HPC.
p. We direct that in order to bring about checks and
balances in transfer of Elephants, the HPC shall continue to exist beyond
these 23 Elephants and shall be consulted by the concerned Chief Wild Life
Warden as the case may be before granting any travel permit. No travel
permit shall be granted without the recommendation of the HPC. For such
purpose, the HPC shall carry out the exercise it deems fit bearing in mind
the observations made and the purport of the present order.
q. The costs of the HPC shall, insofar as the costs of the
members are concerned, since their appointment is by designation, the costs
shall be borne by their respective departments or employing authority.
r. The Chairman shall be entitled an honorarium of
Rs.5,00,000/- (Rupees Five Lakh Only) and costs of the Chairman shall be
reimbursed to him by the respondent No.3 without demur against a Bill of
Costs. Such honorarium and costs shall be paid in advance and in any case
before the Chairman sends his recommendations to the concerned Chief
Wild Life Warden.
s. In case the Chairman of the HPC is required to carry out
functions under this order beyond the afore-referred 23 Elephants, the
Chairman shall convene the HPC with the same composition of respective
designations and the HPC shall have the same functions as above and the
HPC shall be provided with the same assistance as above.
t. In case the Chairman of the HPC is required to carry out
functions under this order beyond the afore-referred 23 Elephants, entitled to
an honorarium of Rs.100,000/- (Rupees One Hundred Thousand Only) and
reimbursement of costs in the same manner as above.
Needless to mention that final report will be shared with
petitioner and respondent No.3. It would be open for the petitioner as well as
authorities to take proper action as per law if any discrepancy is discovered
by the High Power Committee in its report.
35. A copy of this order shall forthwith be forwarded by the
Registry to Hon'ble Shri Justice Deepak Verma (Former Judge, Supreme
Court of India) and the following officers:
i. Director General of Forests (Union of India);
ii. Head of Project Elephant Division (MoEF);
iii. Member Secretary (Central Zoo Authority of India);
iv. Chief Wild Life Warden (State of Tripura) for Elephants
from State of Tripura; and
v. Chief Wild Life Warden (State of Gujarat).
36. The Writ Petition stands disposed of in terms of the directions
contained hereinabove.
(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ
Pulak
