High Court Kerala High Court

Nakeri Vasudevan Namboodiri vs Union Of India on 18 August, 2007

Kerala High Court
Nakeri Vasudevan Namboodiri vs Union Of India on 18 August, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 30959 of 2003(I)


1. NAKERI VASUDEVAN NAMBOODIRI,
                      ...  Petitioner
2. K.B.SUNILKUMAR,
3. SYAMKUMAR,
4. C.L.DANY,
5. K.R.VASUDEVAN NAMBOODIRIPPAD,
6. P.MADHU,
7. K.VISWANATHAN,
8. DR.R.K.KAIMAL,
9. K.N.VENKITESH,
10. K.R.ANTONY,
11. A.KUMARAN,
12. K.GOVINDANKUTTY,
13. DR.RAMDAS C.R.,
14. K.M.NAIR,
15. K.UNNI,
16. BABU JOHN,
17. E.T.PARAMESWARAN MOOS,
18. SANKARAN C.P.,
19. K.S.ANANDA MANI,
20. C.S.SASIDHARAN,
21. M.P.VARIJAKSHAN,
22. PATTATH ASHOK KUMAR,
23. C.U.BINOY CHNGATH HOUSE,
24. P.K.RAVINDRAN,
25. DR.T.C.RAVUNNI NAMBIAR,
26. A.P.MOHANDAS,
27. KANIPPAYYOOR VIJAYAN NAMBOODIRIPPAD,
28. P.NARAYANAN RAJA,
29. MOHANAN,
30. A.K.PRAMOD,
31. K.LAKSHMANAN,
32. P.M.NARAYANAN,
33. M.A.PARAMESWARAN,
34. B.S.JANATH,
35. N.KESAVAN NAMBOODIRI,

                        Vs



1. UNION OF INDIA,
                       ...       Respondent

2. THE CHIEF SECRETARY TO GOVERNMENT,

3. THE CHIEF CONSERVATOR OF FORESTS,

                For Petitioner  :SRI.K.RADHAKRISHNAN(SR)

                For Respondent  :SRI.C.B.SREEKUMAR, ADDL.CGSC

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR

 Dated :18/08/2007

 O R D E R
                                                          C.R.
                   C.N.RAMACHANDRAN NAIR, J.
                   -----------------------------------
  WP(C) Nos. 30959, 31503, 33554 of 2003, 15986 of 2004
         24966, 29760, 32021 of 2006 & 2751 of 2007
                        -------------------------
            Dated, this the 18th day of August, 2007

                           J U D G M E N T

The petitioners in these writ petitions are either owners of

elephants or association of elephant owners. The challenge in these

writ petitions filed from 2003 onwards is against Section 43 of the

Wild Life Protection Act 1972, whereunder, prohibition is introduced

against sale of captive animal including elephants with effect from

01/04/2003. During pendency of these writ petitions, this Court

issued interim orders staying the operation of the impugned

provision. The Central Government has now filed statement

acknowledging the hardship caused to owners of captive elephants

on account of the impugned amendment Act 16 of 2003. It is

stated by the Government that amendment will be introduced

exempting elephants from the operation of the prohibitory clause.

In other words, Government has recognized the genuine hardship

against the prohibition and the need to permit transfer or sale of

elephants by owners of the captive elephants who for many reasons

will have to sell or transfer elephants, sometimes even to protect

WP(C) Nos. 30959, 31503, 33554/03, 15986/04, 24966, 29760, 32021/06 & 2751/07
-2-

the animal itself. In view of the statement filed by the Central

Government, I do not think this Court should consider the validity of

prohibitory clause which in the present form will not be in the

statute after the amendment. However, learned special

Government Pleader appearing for the Forest Department in Kerala

submitted that the Chief Wild Life Warden of the State is of opinion

that there is saturation of captive elephant population in the State

of Kerala and further import should not be permitted from other

States. He also emphasised the requirement to enforce the

provisions of the Kerala Captive Elephant (Management and

Maintenance) Rules 2003. I do not think the petitioners can oppose

the enforcement of regulatory provisions contained in the Captive

Elephant Management Rules, which the Chief Wild Life Warden is

bound to enforce. In fact, going by the increased number of

incidents of violence by and to elephants, there is an urgent need to

enforce the Rules and if required to introduce more regulatory

provisions to ensure that elephants are not ill-treated and no

provocation is caused making captive elephants a threat to human

life and property. As an interim measure, i.e. until amendment is

made to Section 43 of the Wild Life Protection Act, I feel there

should be some regulation with regard to transfer of elephants at

least within the State. It is therefore declared that hereafter the

WP(C) Nos. 30959, 31503, 33554/03, 15986/04, 24966, 29760, 32021/06 & 2751/07
-3-

sale, transfer and other dealings involving changing of hands of

captive elephants should be only with the approval and in

accordance with the norms prescribed by the Chief Wild Life

Warden, who will ensure that purchasers have the required facilities

to maintain the captive elephants purchased by them. Transfer

should be permitted only on condition of purchasers satisfying of

the requirement under the Captive Elephant and Management Rules

and guidelines issued by the Government or the Chief Wild Life

Warden. This arrangement will continue until proposed amendment

is made and thereafter the amended provisions will apply. Every

applications filed should be disposed of after conducting enquiry

within a period of 30 days from receipt of application. State

Government should issue instructions to the revenue and police

authorities to co-ordinate with the Chief Wild Life Warden and the

authorized officials to ensure that the Captive Elephant

Management Rules are enforced.

These writ petitions are disposed of as above.

(C.N.RAMACHANDRAN NAIR, JUDGE.)
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