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Constitution of India also casts an obligation on humans to protect and
conserve the environment. In 1M.C. Mehta V/s. Kamal Nath & Ors. the
1 (1997) 1 Supreme Court Cases 388
Apex Court enunciated the Doctrine of public trust entailing that
common property such a reserve forests and wildlife etc. should be
protected by Government. The State as a custodian of these
resources has a duty to maintain the natural resources to maintain not
merely for the benefit of the humans but also for the best interests of
the wildlife animals. This doctrine of public trust can be pressed into
service in the present case. Furthermore under Article 51A(g) of the
Constitution of India it is the duty of every citizen of India to protect and
improve the natural environment including forests, rivers and wildlife
and to have compassion for living creatures. Consequently, both the
Central and State Governments have been mandated with the
responsibility of the protection of conservation and wildlife. Laws being
man-made, there is likelihood of bias towards the man and the rights of
animals have been treated as subservient. It is duty of the Court to
ensure that the balance exists in the system.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2662 OF 2013
Dr. Manilal V. Valliyate, ]
V/s.
1. State of Maharashtra through Chief ]
CORAM : V.M. KANADE AND A.K. MENON, JJ.
JUDGMENT PRONOUNCED ON : 7TH APRIL, 2014
Citation;2014(3) MHLJ 209 Bom
Read original judgment here;click here
1. Rule. Rule, made returnable forthwith.
2. Learned counsel for the Respondents waive service. By
consent of the parties, both the petitioners are finally heard.
3. The subject matter of the above Petitions is welfare of
“Sunder” an Elephant in captivity. These two petitions can be
conveniently disposed of by this common order. Writ Petition No.2662
of 2013 (“First Petition”) is filed on the Original Side on 20th
November, 2013 and seeks the following reliefs:-
“ (a) Issue a Writ of certiorari and / or any other writ, order or direction
quashing the Ownership Certificate No.1-12-B-a-KLP-220-1365
dated Nil (Exhibit-D) issued in respect of Sunder by Respondent
No.1 in favour of Respondent No.2 as well as earlier ownership
certificate dated 3/2/2007 (Exhibit-A).
(b) Direct Respondent No.1 to forthwith implement the order dated
21/8/2010 issued by the Joint Secretary (Forests), Government
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of Maharashtra (Exhibit-G).
(c) Ad-interim order in terms of prayer (b).”
In the First Petition, the Petitioner is charitable organization
set up inter alia for prevention of cruelty to animals. The Petition raises
an issue of welfare and upkeep of elephants in captivity particularly
Sunder who is presently in the custody of Devasthan Management
Committee, Shri Kedarnath Devasthan Jyotiba, Dist. Kolhapur and the
Respondent No.4.
4. Writ Petition No.887 of 2014 (“Second Petition”) is filed on
the Appellate Side on 17th January, 2014 and seeks the following
reliefs:-
“A) That this Hon'ble Court be pleased to issue a writ of mandamus
or any other appropriate writ, or direction in the nature of
mandamus thereby directing Respondent No.1 to withdraw /
recall the order dated 21st August, 2012 passed by it thereby
directing that Sunder elephant be set free and relocated to Wild
Life Rescue and Rehabilitation Centre, Bengaluru, Exhibit-D
hereto.
B) That this Hon'ble Court be pleased to issue a writ of mandamus
or any other appropriate writ, order or direction in the nature of
mandamus thereby directing Respondent No.2 to withdraw /
recall the order dated 9th November, 2012 by which Respondent
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No.2 has directed Respondent No.3 to take custody of Sunder
elephant by following the provisions of Wild Life (Protection) Act,
1972 Exhibit-F hereto.
C) Pending hearing and final disposal of this writ petition, this
Hon'ble Court be pleased to stay the operation, implementation
and effect of the order dated 21st August, 2012 passed by
Respondent No.1 Exhibit-D hereto and order dated 9th
November, 2012 passed by Respondent No.2 Exhibit-F hereto.
D) Interim and ad-interim relief in terms of prayer clause (C) above
be granted. ”
The Petitioner in the Second Petition is a Member of the
Legislative assembly in Maharashtra and is also Respondent No.6 in
the First Petition.
5. Few relevant facts needs to be narrated:-
On 3rd February, 2007, one Mr. Moneshwar Maran
(“Maran”), resident of Punisi, District Tinsukia, Assam was issued an
ownership certificate in respect of Santu a.k.a Sunder under Section 42
of the Wildlife (Protection) Act, 1972 ('the Act'). Maran sought
permission for transportation of Sunder from Assam to Bihar to enable
Sunder to participate in religions functions. Maran then gifted said
This Order is modified/corrected by Speaking to Minutes Order
Sunder to Ram Naresh Singh, who in turn gifted Sunder to Respondent
No.2. The Additional Chief Wildlife Warden issued an ownership
certificate. The “gifts” appear to be given to avoid consequences of
sale and trade in Wildlife animals under the Act.
6. It transpires that in May, 2012, the Petitioner received
innumerable complaints about the cruel treatment meted out to Sunder.
The Animal Welfare Officer visited the temple and made observations
about the condition of Sunder and obtained photographs on the basis
of which he filed a criminal complaint under the Act at Kodali police
station, Kolhapur. The said complaint had alleged that Sunder was (a)
kept chained at the temple for the past six years, (b) his mahout used a
spiked chain and administered sedatives orally, to control him, (c)
denied adequate food, sufficient water and daily walks (d) Sunder had
reportedly suffered and serious injury to his right eye as a result of the
mahout's use of sharp metal tipped weapon and had many injury
marks all over his body.
7. On 2nd August, 2012 the Petitioner made a representation
to the Hon'ble Minister for Forests, Maharashtra about cruelty being
caused to Sunder and to shift him to a sanctuary. On 3rd August, 2012
the Petitioner wrote a letter to the Chief Conservator of Forest
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(Wildlife), Maharashtra and to CCF Kolhapur for initiating action and
transfer of Sunder to an elephant sanctuary in Karnataka.
8. Pursuant to a meeting called by the Hon'ble Minister a
decision was taken, the Joint Secretary (Forests), the Government of
Maharashtra to set free Sunder and relocate him to Wildlife Rescue
Rehabilitation Centre, Bangalore. On 21st August, 2012, the Joint
Secretary (Forests), Revenue and Forest Department directed the
Principal Chief Conservator of Forests (Wildlife), Nagpur, Maharashtra
State that he should set Sunder free from Jyotiba Temple and
immediately implement the relocating process to Elephant Centre,
Bengaluru [Wildlife Rescue and Rehabilitation Centre (WRRC),
Bengaluru] in accordance with the rules under the provisions of the Act.
9. We may mention here that in the second petition, the
Petitioner has sought to question the jurisdiction of the Joint Secretary
(Forests), Revenue and Forest Department to issue such an order and
prayed for recalling of the said order. We will address this issue at the
appropriate stage.
10. On 3rd September, 2012 the Joint Secretary, PCCF directed
the Chief Conservator of Forests to issue a show cause notice for
This Order is modified/corrected by Speaking to Minutes Order
violation of Section 42 of the Act and to initiate steps for cancellation of
the ownership certificate issued to the owner. On 14th October, 2012,
Respondent No.3 i.e. Central Zoo Authority, New Delhi (“CZA”)at the
request of Respondent No.1 appointed a Committee to inspect Sunder
and the facilities provided and submit a report. A report dated 19th
October, 2012 was submitted and inter alia following recommendations
are made:-
(i) that the living space and environment is to be immediately
enlarged by closing 40 to 50 acres of available land near
the Jyotiba Temple;
(ii) Protected contact enclosures (PCE) is to be created where
the elephants may be allowed walk freely, with no chains
for a minimum of 20 hours a day;
(iii) Sunder may be housed in a PCE instead of chaining
during musth period.
(iv) Sunder be allowed to forage and graze, though there is
ample opportunity to do so.
(v) The identified land is amidst forest and natural
surroundings;
(vi) Sunder to exercise for a minimum 6 to 8 hours to avoid
health issues;
(vii) Sunder needs presence of more elephant companions and
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his isolation from elephants will cause loneliness and
psychological damage;
11. In the meantime, Respondent No.4, a Member of the
Maharashtra Legislative Assembly, wrote a letter dated 19th October,
2012 to the Principal Secretary (Forests), Maharashtra promising to
ensure the welfare and upkeep of Sunder and similarly placed
elephants inter alia observing that the plight of captive elephants in
Maharashtra is indeed very pathetic and the Warana Group of
Industries would like to pledge its sincere commitment and unending
financial support to the cause of elephant welfare in Maharashtra.
Respondent No.4 expressed his willingness to establish a suitable
facility along International standards in the interest of elephant welfare
inter alia for housing of Sunder , as per design, specifications and
guidelines laid down by CZA and as advised by the experts. He
claims that a land belonging to Jyotiba Temple Devasthan Board has
been identified for the purpose. Respondent No.4 requested the
Principal Secretary Forests that in view of the written commitment and
promises and keeping in mind the cultural and religious sentiments and
faith of the people of the area and the Jyotiba Temple, Sunder be
permitted to be retained by Jyotiba Temple in Kolhapur. There was no
sign of any challenge to the Order of relocation.
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12. On 12th April, 2013 the Petitioner issued a legal notice to
Respondent Nos.2 & 4 inter alia calling upon them to show cause why
legal proceedings should not be adopted for protection and welfare of
Sunder, including cancellation of the ownership certificate and its
translocation to Wildlife Rescue Rehabilitation Centre, Bangalore. The
Petitioner annexed several photographs in an attempt to demonstrate
the living conditions of Sunder, injuries inflicted in captivity and also
photographs of the elephant shelter adjacent to the Kalesar Wildlife
Sanctuary, Haryana which according to the Petitioner was suitable for
the elephant.
13. At this point, it is convenient to observe that the condition
of the elephant as obtaining from the photographs is not disputed by
either the Petitioner or Respondent No.4, although affidavits have been
filed by Respondent No.4 on 19th December, 2013 and Respondent
No.2 on 23rd January, 2014. The Petitioner, therefore, seeks the
enforcement and implementation of the order dated 21st August, 2012
issued by the Joint Secretary (Forests), Revenue and Forest
Department and also seeks quashing of the ownership certificate.
Respondent No.4 has challenged the Petitioner's locus in filing the
petition as the cause of action arises at Kolhapur and the CC
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(Regional), Kolhapur is seized of the complaint about the ownership.
Apropos the ownership of the elephant, we find that the Petitioner has
already taken up the issue of ownership and a complaint dated 3rd
September, 2012 for violation of Section 42 of the Act is pending before
the appropriate authority, we do not propose to grant any relief at this
point, except to request the authority to consider the application without
undue delay.
14. Respondent No.4 disputed the jurisdiction of the Joint
Secretary (Forests), Revenue & Forest Department to issue order
dated 21st August, 2012 and contends that the said order cannot be
enforced by issuing a writ. He reiterates his willingness to establish
suitable facilities of International standards in the interest of elephants'
welfare. He contends that pursuant to the request of Respondent No.2
to him as Chairman of Warana Sahakari Sakhar Karkhana Ltd. to
accommodate Sunder in the premises of the karkhana pending
infrastructure to be set up on the premises of Respondent No.2,
accordingly, Sunder is presently maintained in Warananagar. He also
denied all the allegations about Sunder being kept chained. In fact, all
the allegations about ill-treatment of the elephant have been denied.
Respondent No.4 relied upon the “Observation Report” dated 15th
December, 2013 wherein the Livestock Development Officer, Taluka
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New Veterinary Ploy Clinic, Kudoli, Dist. Kolhapur has certified that the
elephant is in sound health and is showing early signs of "Pre Musth".
Respondent No.4 states that it is not feasible to send Sunder to
Bengaluru since according to the Petitioner itself, the facility is not
functional. He relies upon the letter dated 12th December, 2013 issued
by the Petitioner to the Principal Chief Conservator of Forest (Wildlife),
Nagpur which inter alia states that Sunder may be shifted to Mathura
and that all the expenses for the upkeep and maintenance will be taken
care of by PETA in association with Wildlife authorities.
15. There is an affidavit in reply dated 16th January, 2014 filed
by Respondent No.1 which also denies the allegations of ill-treatment
and inter alia claims that the Devasthan Committee passed Resolution
that they comply with the guidelines for establishing the Rescue &
Rehabilitation Centre and for that purpose land will be made available.
Despite the Petitioner's efforts and although Respondent No. 2 and 4
showing willingness and intention to create and suppport infrastructure
as far as 19th October, 2012, no steps whatsoever has been taken till
date.
16. The Petitioner has in its rejoinders dated 17th January,
2014 and 18th February, 2014 denied the averments made by
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Respondent Nos.2 & 4 in their affidavits and relied upon the
assessment report of captive Sunder issued by Centre for Elephant
Studies, College of Veterinary & Animal Science, Department of Forest,
Kerala dated 23rd December, 2013. The assessment report dated 23rd
December, 2013 is carried out by two persons one Project Director,
Centre for Elephant Studies, College of Veterinary and Animal
Sciences, Mannuthy, Kerala and Forest Veterinary Officer, Konni,
Pattanamthitta. From the assessment summary, it is clear that although
Sunder did not show any clinical signs of decease, his behaviour was
stereotypical with extreme head swaying due to absence of lack of
exercise to balance their energy level, long periods of inactivity,
persistent chaining to one place and absence of enrichment in living
environment and the fact that the animal housing was not scientific and
not satisfactory and he is under threat of physical injury and associated
problem if tethering continues in this condition. Scars were detected
arising from tight chains and rope used for restraining the animal.
Sunder appeared to be deficient in some nutrition especially essential
vitamins which have to be supplemented through natural food. The
mahout seems to be highly inexperienced to handle the day to day
scientific elephant management practices involving proper grooming,
washing and other routine management. The management practices
of bathing, grooming, cleaning of nails, exercising, humane and
This Order is modified/corrected by Speaking to Minutes Order
scientific restraining, etc. were not satisfactory.
17. An affidavit has been filed by the Deputy Conservator of
Forest, Kolhapur Division. On 10th December, 2013 this Court had
directed that compliance report of the order passed by IGF & Director
(Project Elephant). On 23rd December, 2013 this Court recorded that
the report submitted indicates that attempts made for shifting the
elephant to Bengaluru were not possible due to the elephant being non
co-operative and the matter was directed to be placed for final
disposal. It appears from the affidavit that attempts and persuasive
efforts were made on several occasions for Sunder to climb a truck, but
it remained unsuccessful and repeated efforts made Sunder somewhat
aggressive and uncooperative. Assistance of Bannergata National Park
was sought to facilitate shifting of Sunder from Kolhapur to Bengaluru.
18. A further rejoinder has been filed on behalf of the Petitioner
on 26th February, 2014 wherein it has been contended that the
behaviour of Sunder clearly indicates severe mental stress and
displaying aggressive behaviour and mock charging towards its own
mahout (and his assistant mahout). The examining officers were
standing barely 3 meters from Sunder, who displayed no aggression at
all towards the visiting team. This sets out that Sunder is distressed
This Order is modified/corrected by Speaking to Minutes Order
and disturbed only when his own mahout or assistant mahout approach
him or comes nearby indicating that he is not being treated humanely
by the persons. The affidavits includes photographs displaying
aggressive behaviour in the presence of mahout and the presence of
elephant experts during the visit at Warananagar, Kolhapur displaying
that the hinds legs have scar tissues indicative of previous deep
wounds from chaining for long hours. Sunder is housed in a shed
exposed to the natural elements with concrete flooring and exposed to
hot sun in the back side and cold winds and chilly weather at night. The
photographs annexed include some showing the forelegs closely tied
together with heavy chains, facilities of boarding and transportation of
elephant etc. None of these are in dispute.
19. We have the rival contentions of the parties as to whether
or the elephant is musth, musth is a temporary phenomenon during
which a male elephant shows aggressive behaviour. It is common
ground that during musth period, it is not advisable to attempt to shift
an elephant. Further examination and health evaluation of Sunder as
directed by this Court vide order dated 13th February, 2014 has been
annexed to the affidavit. The report is a joint report dated 20th
February, 2014 is issued by Dr. E.K. Easwaran, Assistant Director,
Elephant Expert, Department of Animal Husbandry, Kerala and Dr.
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Yaduraj Khadpekar, Senior Veterinary Officer, Elephant Expert, Wildlife
SOS,India, New Delhi. The report recommends that Sunder in his
present state can be transported to an elephant care and rehabilitation
Centre under regular sedation and transportation protocol. It further
recommends that Sunder needs immediate enrichment of environment
by appropriate association with other elephants in a rehabilitation and
care centre to avoid any further permanent damage to mental status
which shall, if left in his current condition, will eventually make him a
rogue and dangerous through his lifespan and difficult to manage in
captivity. Much material has been produced by both the sides, inter
alia regarding the guidelines of the care and management of captive
elephants.
20. We now deal with the second petition filed by Respondent
No.4 in the first petition. The second petition was tagged with the first
petition pursuant to the directions of this Court dated 13th February,
2014. By the said order, the Court directed Respondent No.4 in the
first petition and the Petitioner in the second petition to permit the
members of PETA to examine the elephant in the ensuing week from
15th February, 2014. The Petitioner in the second petition contends
that elephants have been in the service of deity since a long time and
that Sunder is being looked after. He contends that Respondent No.1
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has passed ex-parte order on 21st August, 2012 without jurisdiction and
in breach of rules and natural justice. The Petitioner contends that the
elephant is presently being maintained by the Warana Group and a
team of 30 veterinary doctors / surgeons are employed with the said
diary and in any event, the elephant has been properly taken care of.
The allegations have been made that Respondent No.6, Petitioner in
the first petition, has been approaching the media and press and is
disseminating selective information in order to prejudice the public
opinion and minds of the officers charged with the functions under the
said Act. The Petitioner also seeks recall of the order dated 21st
August, 2012 and order dated 9th November, 2012. The Petitioner
contends that he has sent the expert team to review the condition of
the elephant and that expert team has recommended the elephant to
be retained at the same place subject to creation of a rescue centre.
The fact remains that no steps whatsoever has been taken to create
the centre for housing the elephant.
21. An affidavit in reply has been filed by the Deputy
Conservator of Forest which reiterates the stand taken by him in the
first petition. He contends that there is no merit in the second petition.
It is averred that Government of Maharashtra has inherent powers and
jurisdiction to issue directions and to get the same implemented in
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accordance with Section 4(2) of the Act. In fact, he supports the
issuance of the order of 21st August 2012.
22. Having given careful consideration to the rival contentions
of all the parties in both the above petitions, we are of the view that
interest of the captive elephant must be foremost in the mind. None of
the parties have controverted the photographs or the facts that injuries
have been found on Sunder or that he is chained and unduly restrained
most of the time nor have they assailed any material findings of the
assessment reports of the experts in the field. To accept the view of
Respondent Nos.2 and 4 in the first petition as contained in the affidavit
filed by them in the first petition as also the averment of the Petitioner
in the second petition is not possible. It cannot be disputed that our
focus should be to ensure the welfare of Sunder. No doubt, elephants
have been pressed into service since times immemorial for religious
functions, however, to insists that Sunder must be retained by
Devasthan, Respondent No.1 or Warananagar Group, Respondent
No.4 is unreasonable.
23. Although, Respondent No.4 has expressed his intention to
set up elephant rehabilitation centre, as of date, Sunder is confined to
concrete floor in unnatural surroundings which are unsuitable for
This Order is modified/corrected by Speaking to Minutes Order
maintaining him. Sunder is being deprived of his basic requirement
and promise of natural surroundings. No attempt has been made to
even provide psuedo natural surroundings. It is a well document fact
that elephants are highly cognitive and intelligent animals and it is in
the best interest of Sunder that the impugned order dated 21st August,
2012 be implemented in the best feasible manner and in according with
the suggestions of the experts in the field.
24. This brings us to the issue of jurisdiction raised in the
second petition. Section 4(2) and Section 5 of the Act empowers the
State Government to issue such directions it may need to issue from
time to time, give.
25. The Devasthan Committee has not raised the issue of
jurisdiction and the affidavit filed by Rajaram Raghunath Mane, on
behalf of the said Respondent has denied the allegations contained in
the first petition. In fact, he goes on to state that Devasthan
Management Committee on 26th December, 2013 passed a Resolution
that Sunder “will be” gifted to Warana Sahakari Dudh Utpadak Sahakari
Society. The date of the resolution is of much significance since it
comes barely a month after the present petition is filed. When the
Court inquired of Respondent Nos.2 & 4 as to what steps have been
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taken by them pursuant to the oft repeated promises of setting up the
elephant care centre after the offer was first made in 2012, a
submission is made across the bar that the land which was in
contemplation for the care of elephant health centre is under control of
an Administrator and that unless the competent authority passes
appropriate orders permitting use of the said land, it would not be
possible to create the elephant health centre.
26. This is a submission made across the bar. The pleadings
are conveniently silent. It is, therefore, evident that no elephant health
centre is likely to come up in or around the premises of the temple in
the near future however good the intention of Respondent Nos.2 & 4
are. In the event of any elephant health center being set up or arranged
for the elephant, thereafter the elephants in captivity may be vested
with the temple, if the law permits. We are satisfied and hold that
Respondent No.4 has no locus to question the jurisdiction of the Joint
Secretary (Forests), Revenue and Forest Department, Government of
Maharashtra to issue order dated 21st August, 2012.
27. Translocation of animals is not unknown. Article 21 of the
Constitution of India also casts an obligation on humans to protect and
conserve the environment. In 1M.C. Mehta V/s. Kamal Nath & Ors. the
1 (1997) 1 Supreme Court Cases 388
This Order is modified/corrected by Speaking to Minutes Order
Apex Court enunciated the Doctrine of public trust entailing that
common property such a reserve forests and wildlife etc. should be
protected by Government. The State as a custodian of these
resources has a duty to maintain the natural resources to maintain not
merely for the benefit of the humans but also for the best interests of
the wildlife animals. This doctrine of public trust can be pressed into
service in the present case. Furthermore under Article 51A(g) of the
Constitution of India it is the duty of every citizen of India to protect and
improve the natural environment including forests, rivers and wildlife
and to have compassion for living creatures. Consequently, both the
Central and State Governments have been mandated with the
responsibility of the protection of conservation and wildlife. Laws being
man-made, there is likelihood of bias towards the man and the rights of
animals have been treated as subservient. It is duty of the Court to
ensure that the balance exists in the system. The dispute is of
ownership of Sunder notwithstanding, the fact remains that the opinion
of the parties of granting Sunder well being has been forsaken. As it
stands, after the complaint pertaining to the Sunder's ill-treatment and
undesirable surroundings were first received and the passing of the
order on 21st August, 2012, Sunder remains confined.
28. In the result, we direct that the order dated 21st August,
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2012 be implemented forthwith in accordance with the provisions of the
Wildlife (Protection) Act, 1972 without any further delay and in any
event, before the onset of the monsoon. The facility at Bengaluru is
closer to the present location of Sunder and it is not possible to accept
the suggestion of the Petitioner to transport the elephant to Mathura
although the facilities at Mathura may be more modern. That
suggestion may be considered by the authorities at a later point in time.
The prime consideration is to ensure that the elephant is set free from
its present state of captivity. We may observe that the observation
made by the Wildllife Rescue & Rehabilitation Centre in letter dated
17th December, 2013 addressed to the Petitioner to the effect that the
Petitioner may state alternative sites for housing Sunder was relevant
only during winter when the movement of the elephants is very
frequent. This is no reason to prevent Sunder from being shifted to
Bengaluru. Accordingly, the elephant should be transported to the
facility of Bengaluru by using suitable methods in the best interest of
the elephant. The State, the Chief Conservator of Forests and the
Chief Wildlife Warden to take appropriate measures to ensure that the
transportation is effected in the best possible method and in
consultation with the experts in the field. They may take the assistance
of the Petitioner in this regard.
This Order is modified/corrected by Speaking to Minutes Order
29. In the circumstances, rule is made absolute in terms of
prayer clause (b) in Writ Petition No.2662 of 2013 with no order as to
costs.
30. However, Writ Petition No.887 of 2014 fails and is
dismissed with no order as to costs. Rule stands discharged.
31. At this stage, the learned Senior Counsel appearing for the
Petitioner in Writ Petition No.887 of 2014 seeks stay of the order
passed in Writ Petition No.2662 of 2013. Request for stay is opposed
by the learned counsel appearing for the Petitioner in Writ Petition
No.2662 of 2013. Ad-interim order was passed by this Court in
December, 2013 in terms of prayer clause (b). Interim order was in
operation till today. By this judgment, we have confirmed the said
interim order. In this view of the matter, granting of stay does not arise.
(A.K. MENON, J.) ( V.M. KANADE, J.)
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