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.
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WP(C) Nos. 30959, 31503, 33554 of 2003, 15986 of 2004
24966, 29760, 32021 of 2006 & 2751 of 2007
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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
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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
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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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