Wildlife Rescue And Rehabilitation Centre And Others v. Union Of India And Others

(2016) 13 SCC 482

Order dated 8-12-2015

(Before Dipak Misra and Prafulla C. Pant, JJ.)

Writ Petition (Civil) No. 743 of 2014

IA No. 18 of 2015

1. This is an application for impleadment of the State of Goa. Prayer stands allowed.

2. Notice of the writ petition be issued to the State of Goa.

3. Additionally, the learned counsel for the petitioner is at liberty to serve a copy of the petition on the Standing Counsel for the State of Goa.

4. Let the cause-title be rectified accordingly.

IA No. 19 of 2015

5. Issue notice returnable within six weeks.

IA No. 17 of 2015

6. By this interlocutory application, the writ petitioner has prayed for many a relief. The relevant ones are reproduced below:

“(a) Direct the Chief Wildlife Warden, Government of Rajasthan (Respondent 18 herein) to immediately put a stop on the use of elephants in the Elephant Village and the Amer Fort for rides and exhibition.

(b) Direct Respondent 18 to scrutinise the legality of documents of all the elephants, and take necessary action under the law.

(c) Direct AWBI (Respondent 2) to revoke any registration of elephants under the Performing Animals (Registration) Rules, 2001 where not in compliance with the conditions.

(d) Direct Respondent 2 to take action for the violation of the provisions of the Prevention of Cruelty to Animals Act, 1960 and the Rules framed thereunder.

(e) Direct the State of Rajasthan (Respondent 17 herein) and Respondent 18 to ensure proper upkeep of captive elephants in accordance with the relevant rules and guidelines.

***

(g) Direct the elephants that are handicapped or are of old age should be retired mandatorily from work and the costs of maintaining these elephants should be borne by the owners and/or by the State.”

7. Mr Shyam Divan, learned Senior Counsel has drawn our attention to Para 7 of the application to highlight the report submitted by a Commission constituted by the Animal Welfare Board of India, the second respondent herein. On a perusal of the report, we notice that there are certain recommendations. The said recommendations are as follows:

“1. AWBI shall not issue performance registration for ceremonial parades, marching in processions and decorating and painting any elephants in Jaipur, including the 34 elephants who have applied for registration in January 2014.

2. Injured, sick and suffering elephants must be immediately confiscated and rehabilitated to a rescue or rehabilitation centre or camp.

3. Stringent legal action must be initiated immediately against mahouts and owners who have been forcing sick and injured elephants to work and violating the laws and the Rajasthan High Court order dated 26-2-2010.

4. The State Wildlife Department should scrutinise all ownership certificates and trace the history of procurement, transport and past and current possession of the elephant. The ownership certificate should be matched against the individual people who claim to be the owners of the elephant through a physical verification of the elephants as well as the owners. The Department must maintain a stock book on wild animals and articles.

5. Considering that the cruelty is inherent, MoEF and the State Government are requested to stop the use of elephants for any purposes including tourism and various ceremonial purposes, confiscate and rehabilitate the elephants.

6. Rajasthan Government should set up elephant sanctuary under “Chain-Free Protected Contact System of Management” for rescued elephants.”

8. Mr Shyam Divan, learned Senior Counsel has also drawn our attention to number of photographs which are annexed to this application. It is urged by him that the treatment meted out to the elephants is really cruel and shocking, for they are at times being tied with chains and treated in a primitive manner and further they are being used for the business purposes which includes going on for a joyride on payment to the owner.

9. Issue notice to the State of Rajasthan and the Chief Wild Life Warden, Government of Rajasthan (Respondents 17 and 18 respectively).

10. Mr Bhati, learned counsel, who has already entered appearance on behalf of Respondents 17 and 18, accepts notice. A copy of this application be served on him within three days. He undertakes to file the reply within four weeks hence.

11. Mr Ranjit Kumar, learned Solicitor General shall also file an affidavit of the competent authority of the Ministry of Environment and Forests, Government of India in this regard, as the said authority has a role to play in the animal welfare.

12. Mr Ajit Sharma, learned counsel appearing for the Animal Welfare Board of India shall also file the reply within four weeks hence.

13. At this juncture, we may direct that the Chief Wild Life Warden, Government of Rajasthan shall see to it that all steps, as provided under the law, are taken so that the elephants are really not treated with cruelty which eventually may amount to torture.

14. As far as the State of Kerala is concerned, a copy be served on Mr Jogy Scaria, learned counsel assisting Mr Basant, learned Senior Counsel appearing for the State of Kerala. As far as the State of Kerala is concerned, a report has been submitted by the Principal Chief Conservator of Forests.

15. The learned counsel for the petitioner is at liberty to file an objection to the same. Similarly, liberty is granted to the other respondents to file their response.

16. The State of Kerala is at liberty to file additional affidavit within four weeks.

Contempt Petition No. 833 of 2015

17. Mr Ajit Sharma, learned counsel appearing for the Animal Welfare Board of India, submitted that his contempt petition may be treated as an interlocutory application in the writ petition.

18. Prayer stands allowed. Registry is directed to number the same as an interlocutory application.

19. A copy of the application be served on Mr Jogy Scaria, learned counsel for the State of Kerala.

20. It is submitted by Mr Ajit Sharma, learned counsel that out of 599 elephants, 289 elephants are there without any kind of ownership certificate. The State, while filing its reply to the said interlocutory application, shall specifically deal with it.

IAs Nos. 4-5 of 2015

21. These are applications for intervention. Prayer stands allowed.

IA No. … in Writ Petition No. 743 of 2014 (for intervention)

22. Taken on board. Issue notice returnable within four weeks.

23. List the matter on 17-2-2016.

(2016) 13 SCC 485

Order dated 2-2-2016

(Before Dipak Misra and N.V. Ramana, JJ.)

IA No. 19 of 2015 in Writ Petition (Civil) No. 743 of 2014

24. Mr Arjun Vinod Bobde, learned counsel, submits that he has instructions to appear for the State of Goa. Let him file vakalatnama within a week and the response to the application within three weeks hence.

25. It is submitted by Ms Aparna Bhat, learned counsel appearing for the petitioner that there are two resorts in the State of Goa, namely, Jungle Book and Tropical Spice Plantation, which provide for recreation for the tourists by engaging elephants, who are meted with cruelty. She has brought to our notice the photographs that have been annexed to the application. The prayer in the interlocutory application is to direct the Chief Wildlife Warden, Government of Goa, to see that the elephants are not treated with cruelty, apart from other prayers. The learned counsel would urge that a report should be called from the Animal Welfare Board of India in this regard.

26. Let the two resorts be impleaded as the respondents in this application. The learned counsel for the applicant shall file the amended cause-title within two days hence. The Registry shall issue notice to the said newly added respondents immediately, fixing a returnable date within four weeks.

27. Mr Ajit Sharma, learned counsel appearing for the Animal Welfare Board of India, undertakes to file the report within three weeks.

28. Having heard the learned counsel for the parties, we are, as advised at present, only inclined to direct that the Chief Wildlife Warden, Goa, shall ensure that the elephants which are engaged in these two resorts are not treated with any kind of cruelty in any manner. Be it clarified, whether such resorts can keep the animals or not, shall be dealt with at a later stage.

29. Let the matter be listed on 29-3-2016.

IA No. 11 of 2015 in WP (C) No. 743 of 2014

30. On mentioning, the interlocutory application is taken on board. This is an application for intervention. Regard being had to the stand put forth by the applicant, the prayer stands allowed. The interlocutory application is, accordingly, disposed of.

IA No. … of 2016 in WP (C) No. 743 of 2014

31. On mentioning, the interlocutory application is taken on board.

32. It is submitted by Mr Sidharth Luthra, learned Senior Counsel appearing on behalf of the applicant that the said application is for directions and not for intervention. Regard being had to the same, Registry is directed to register the said application and issue notice, as directed on the earlier occasion.

(2016) 13 SCC 486

Order dated 29-3-2016

(Before Dipak Misra and Shiva Kirti Singh, JJ.)

IAs Nos. 19 and 21 of 2015 in Writ Petition (Civil) No. 743 of 2014

IA No. 19 of 2015

33. In pursuance of our order dated 2-2-2016, the Animal Welfare Board of India was required to file the report. It is submitted by Mr C.A. Sundaram, learned Senior Counsel appearing for the Animal Welfare Board of India that the report will be filed after serving a copy thereof on the counsel for the States and on the learned counsel who represent the two resorts, namely, “Tropical Spice Plantation” and “Jungle Book”. Needless to say, the same has to be served on the learned counsel for the petitioner also.

34. Though we have directed copies of the report to be furnished to the contesting parties, we think it appropriate to refer to a part of the report. The Animal Welfare Board of India has mentioned 10 aspects which pertain to apparent violations of animal protection laws and guidelines. Thereafter, it has given certain recommendations. The violations which are 10 in number read as follows:

“1. TSP does not have the legal ownership certificate for any of the three elephants in their custody. For male elephant Babu, the ownership certificate was issued on 5-11-2008 in the name of Mr Mahant Ramkishan Dasji, District Rajkot (Gujarat) (Annexure 2), for female elephants Laxmi (Annexure 3) and Maniki (Annexure 4), the ownership certificates were issued on 22-1-1999 in the name of Mr N.A. Zacharia, Andaman and Nicobar Islands, Port Blair and 30-11-2002 in the name of Mr Man Singh Shanti Kunwarsen, District Chappra (Bihar) respectively. As per law, ownership can be issued only within 30 days of enactment of the Wildlife (Protection) Act, 1972 or during the amnesty period (i.e. 18-4-2003 to 18-10-2003, when the Central Government issued declaration of the Wild Life Stock Rules, 2003). All ownerships issued on date other than these (30 days and 180 days) are apparently illegal. This is an apparent violation of Section 40(1) of the Wildlife (Protection) Act, 1972 which mandates within 30 days of enactment of the Act wildlife should be declared, Section 41, under which Chief Wild Life Warden (CWLW) should conduct an enquiry after declaration of an animal, and Section 42, under which ownership certificate has to be issued (after meeting the provisions of Sections 40 and 41). Since these three elephants do not have a valid ownership certificate, so they seem to have been captured from the wild and traded illegally which is an apparent violation of Section 9, that prohibits hunting/capture of Schedule I animals such as elephants.

2. TSP failed to produce appropriate transportation permission for transporting Laxmi and Maniki. This is in apparent violation of Section 48-A of the Wildlife (Protection) Act, 1972 which states that:

‘48-A. Restriction on transportation of wildlife.— No person shall accept any [captive elephants] for transportation except after exercising due care to ascertain that permission from the Chief Wildlife Warden or any other officer authorised by the State Government in this behalf has been obtained for such transportation.’

3. All the three elephants under the custody of TSP were obtained apparently illegally as none of the gift deeds had been vetted by/registered with the CWLW of the State which had issued the ownership certificates. Moreover, female elephant Maniki was sold by Mr Man Singh and Mr Shanti Ram to Mr Kunwant Sen for an amount of Rupees seven lakhs twenty-five thousand on 20-10-2007 (Annexure 4). As this was a commercial deal, it is an apparent violation of Section 43 of the Wildlife (Protection) Amendment Act, 2002 which prohibits the sale of wildlife.

4. As TSP is using all three elephants for tourist rides but none of the elephants in their custody is registered with the Animal Welfare Board of India (AWBI) as per the provisions of the Performing Animals (Registration) Rules (PARR), 2001, the PARR, 2001 is apparently being violated. No necessary permissions have been obtained from AWBI under this Rule. The order of the Hon'ble High Court of Kerala in Society for Prevention of Cruelty to Animals v. State of Kerala 2014 SCC OnLine Ker 26343 states: (SCC OnLine Ker para 3)

‘3. … However, they [Forest and Wildlife Department] shall ensure the implementation of provisions of the Performing Animals (Registration) Rules, 2001 referred to above and take appropriate action in the matter as and when it is warranted.’

(Annexure 5)

5. During the inspection of elephants at TSP, it was observed that the housing (elephants were chained on the concrete floor), maintenance (balanced ration was not fed to elephants and the vaccination was not done against tetanus, rabies and foot & mouth disease) and upkeep were found to be inadequate. This is in apparent violation of Section 42 of the Wildlife (Protection) Amendment Act, 2002. As per this the CWLW can revoke the ownership certificate and confiscate the elephants.

6. All the three elephants kept for the joyrides in TSP are deprived of necessary veterinary treatment and care which is exhibited by the physical health issues such as untreated wounds, cataract and skin lesions. Similarly, the inspection team discovered that TSP management have failed to provide appropriate shelter, sufficient food and water facilities for the elephants in apparent violations of Sections 11(1)(a), 11(1)(f) and 11(1)(h) of the Prevention of Cruelty to Animals (PCA) Act, 1960.

7. Moreover, the Inspectors found spiked hobbles at the staging area of the elephants which can inflict pain and induce fear to restrain them. Section 11(1)(a) of the PCA Act, 1960 states that it is cruelty to an animal and a punishable offence if any person

‘beats, kicks, overrides, overdrives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated’.

Use of the spiked chain are prohibited as per the ‘Guidelines for Care and Management of Captive Elephants issued by Ministry of Environment & Forests, Project Elephant, No. 9-5/2003-PE dated 8-1-2008’.

8. The female elephants were tethered with one foreleg and one hind leg using nylon ropes tightly tied to the trees, while the male elephant was kept in place using heavy chains. All three elephants suffered great discomfort and were unable to move freely, rest or exhibit any natural behaviour. Section 11(1)(f) states that it is cruelty to an animal and a punishable offence if any person

‘keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord’.

9. Before the issue of the transport permit, the CWLW or the authority issuing the permit would be required to obtain a no-objection certificate (NOC) from the CWLW of the State where the elephant is to be transported about the availability of adequate housing at the place where the animal is to be kept. TSP failed to produce any such NOC during the inspection. Not having NOCs would make the transportation of all the three elephants in apparent violation of the ‘Guidelines for Care and Management of Captive Elephants issued by the Ministry of Environment & Forests, Project Elephant, No. 9-5/2003-PE dated 8-1-2008’.

10. As there were no records maintained for the feeding, work, vaccination, movement, disease and treatment, etc. by TSP, so this is the violation of the ‘Guidelines for Care and Management of Captive Elephants issued by Ministry of Environment & Forests, Project Elephant, No. 9-5/2003-PE dated 8-1-2008’.”

35. The recommendations which are four in number, are enumerated below:

“1. As all the three elephants are apparently being kept by TSP illegally AWBI may advise the CWLW of Goa to seize these elephants immediately and humanely transport them to a suitable elephant care and rehabilitation centre where they will not be made to live in chains.

2. As there is violation of the PARR, 2001 and the elephants are being used for giving joyrides to tourists without taking permission and registering the elephants with AWBI under the provision of the PARR, 2001, AWBI may initiate necessary legal actions against TSP.

3. Since the elephants are suffering both mentally and physically they need immediate veterinary care in a more enriching environment to avoid further physical and mental damage, and AWBI may advise CWLW of Goa to ensure the same.

4. AWBI may advise CWLW's of Gujarat, Bihar and Andaman & Nicobar Islands who may take disciplinary actions against the erring officials who issue the illegitimate ownership certificate and other documents related to transfer of custody and transport of elephants.”

36. Mr Arjun Bobde, learned counsel appearing for the State of Goa has filed a reply in this IA. It is submitted by the learned counsel that the steps are being taken under the Prevention of Cruelty to Animals Act, 1960 and other relevant laws.

37. Mr Vivek Rodrigues, learned counsel appearing for the Jungle Book had filed the counter-affidavit. He is at liberty to file any objections to the report submitted by the Animal Welfare Board. The State of Goa shall file an affidavit indicating the details about the affirmative steps it has taken so that animals are not treated with cruelty.

38. Ms Mahalakshmi Pavni, learned Senior Counsel appearing for the Tropical Spice Plantation shall file the counter-affidavit within two weeks hence.

39. Be it noted, Mr Sundaram, learned Senior Counsel has raised three fundamental issues i.e. (i) after the Act has come into force, whether any person can keep an elephant in his custody as the owner; (ii) assuming there is no prohibition for keeping an elephant, what rule should govern the upkeep of the animal?; and (iii) who are the authorities to regulate the health, upkeep and the manner in which the elephants are to be treated and used.

IA No. 21 of 2015

40. Mr Sidharth Luthra, learned Senior Counsel appearing in the IA which pertains to the State of Kerala would contend that after coming into force of the Wildlife (Protection) Act, 1972 and the Rules framed thereunder, the State of Kerala should not have issued any kind of amnesty scheme which includes ownership certificate.

41. Issue notice on the IA.

42. As Mr Jogy Scaria, learned counsel accepts notice on behalf of the State of Kerala, no further notice need be issued. Mr Jogy Scaria, learned counsel for the State shall file the reply within three weeks hence.

IA No. 25 of 2015 in WP (C) No. 743 of 2014

43. Issue notice. A copy of the IA be served on Mr Jogy Scaria, learned counsel for the State of Kerala. Reply, if any, be filed within three weeks hence.

44. A copy of the report submitted by the Animal Welfare Board of India and copies of IAs Nos. 19, 21 and 25 of 2015 be served on Mr Parameshwar, learned counsel appearing for the Kerala Elephant Owners' Association.

45. Let the matter be listed on 27-4-2016.

(2016) 13 SCC 490

Order dated 4-5-2016

(Before Dipak Misra and Shiva Kirti Singh, JJ.)

IAs Nos. 25 and 27 of 2016 in WP (C) No. 743 of 2014

IAs Nos. 25 and 27

46. 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 26-2-2016 issued by the Government of Kerala, Respondent 9 and cancellation of any ownership certificate issued in pursuance of the said notification.

47. It is submitted by Ms Aparna Bhat, learned counsel appearing for the petitioners that the State Government under the Wildlife (Protection) Act, 1972 has no authority to issue such a notification. A counter-affidavit has been filed by the Union of India referring to Section 40(4) of the Act to show that the State Government can make a declaration subject to certain conditions. Mr Jogy Scaria, learned counsel for the State submitted that it has jurisdiction to issue an amnesty scheme. The said submission is founded on the counter-affidavit filed by the State.

48. Mr V. Giri, learned counsel appearing for the Elephant Owners Association has drawn our attention to the order dated 29-3-2016 wherein this Court, while recording the submission of Mr C.A. Sundaram, learned Senior Counsel appearing for the Animal Welfare Board, has framed three fundamental issues that:

“39. … (i) after the Act has come into force, whether any person can keep an elephant in his custody as the owner; (ii) assuming there is no prohibition for keeping an elephant, what rule should govern the upkeep of the animal; and (iii) who are the authorities to regulate the health, upkeep and the manner in which the elephants are to be treated and used.”

Relying on the said order, it is urged by Mr Giri that the issue that has been raised in these interlocutory applications is inherently connected with the aforesaid fundamental issues.

49. 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.

50. The interlocutory applications shall be taken up along with the main writ petition on 13-7-2016.

Court Masters