IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.12.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Writ Petition No.27864 of 2011 with M.P.No.1 of 2011 and Writ Petition No.28002 of 2011 with M.P.No.1 of 2011 Writ Petition No.27864 of 2011: In defence of Environment and Animals, rep.by its Managing Trustee Elephant G.Rajendran, No.24/51, South Usman Road, T.Nagar, Chennai-600017. ... Petitioner Vs. 1.The State of Tamilnadu, rep.by its Secretary, Forest Department, Secretariat, Chennai-600009. 2.The Principal Chief Conservator of Forest, Panagal Building, Saidapet, Chennai-15. 3.The Wildlife Warden, Mudumalai Sanctuary, Ooty, Nilgiris District. 4.Union of India, rep.by its Secretary, Pariyawaran Building, C.G.O.Complex, New Delhi. 5.The Commissioner, Hindu Religious and Charitable Endowment, Nungambakkam, Chennai-600034. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.28002 of 2011: S.Jayachandran ... Petitioner Vs. 1.The Secretary to Government, Environment & Forest Department, Fort St.George, Secretariat, Chennai-600009. 2.The Chief Wildlife Warden, Tamil Nadu Forest Department, Panagal Building, Saidapet, Chennai-600015. 3.The Field Director, Mudumalai Tiger Resort, Mount Stout Hill, Ooty. ... Respondents * * * Writ Petition No.27864 of 2011 has been filed as Public Interest Litigation under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus , forbearing the respondents from sending domestic elephants to the Mudumalai forest, Nilgiris District or to any other hill forest and reserve forest area in the State of Tamilnadu. Writ Petition No.28002 of 2011 has been filed as Public Interest Litigation under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondents to conduct the proposed elephant rejuvenation camp scheduled to be commenced on 14.12.2011 or on any subsequent date in any other place other than the Mudumalai Tiger Reserve. * * * Appearance in W.P.No.27864/2011: For petitioner : Mr.Elephant G.Rajendran For R.1 & R.2 : Mr.A.Navaneetha Krishnan, Advocate-General, assisted by Mr.M.K.Subramanian For R.4 : Mrs.R.Meenakshi, CGSC https://hcservices.ecourts.gov.in/hcservices/ Appearance in W.P.No.28002/2011: For petitioner : Mr.S.Giridharan For R.1 & R.2 : Mr.A.Navaneetha Krishnan, Advocate-General, assisted by Mr.M.K.Subramanian * * * COMMON ORDER (Order of the Court was made by ELIPE DHARMA RAO, J.) W.P.No.27864 of 2011 has been filed as a probono publico by the petitioner/Trust, represented by a practising Advocate of this Court Mr.Elephant G.Rajendran, praying to forbear the respondents from sending domestic animals to Mudumalai forest in Nilgiris District or to any other hill forest or reserve forest in the State. This writ petition came to be filed by the petitioner, based on a newspaper report that the Government is taking steps to send the domestic elephants, available in Hindu temples and Maths, to the rejuvenation camp. 2. W.P.No.28002 of 2011 has also been filed as a probono publico praying to direct the respondents to conduct the proposed elephant rejuvenation camps scheduled to be commenced on 14.12.2001 or on any subsequent date in any other place other than the Mudumalai Tiger Reserve. 3. In the long affidavits filed along with these writ petitions, the apprehension expressed by the petitioners is that if the domestic elephants are sent to mingle with the wild elephants in the forest, besides there being danger to the life and limb of the domestic elephants, there is every possibility of the diseases of the domestic elephants being spread to the wild elephants. It has also been averred that these large animals are made to stand for hours together during transit, which would cause not only physical sufferance but also mental illness to the elephants. According to the petitioners, this decision of the Government is against the undertaking given by the Government in W.P.No.2325 of 2009, further amounting to contempt of the order of this Court passed in the said Writ Petition, dated 30.4.2009. 4. In W.P.No.28002 of 2011 it has been averred that Mudumalai tiger reserve is biologically and ecologically sensitive area and is one of the few tiger density areas in the world and therefore, the rejuvenation camps can be conducted in the plains itself in more than one place so as to reduce the travelling distance. He has suggested that the river bank of Thamirabarani in Tirunelveli could be ideal for conducting camp for the elephants in southern districts and similarly forest nearby Bhavani Sagar Dam can be used for conducting https://hcservices.ecourts.gov.in/hcservices/ elephant camp for the elephants of Northern districts. 5. Since the issue involved in both these matters is one and the same, they are taken up together and are being disposed of by this common order. 6. At the outset, it is to be pointed out that when we have taken up W.P.No.27864 of 2011 for the first time on 2.12.2011, when we posed a specific question to the learned counsel Mr.Elephant Rajendran that except filing a generalised affidavit, he has not offered the details as to the number of elephants proposed to be sent to the rejuvenation camp by the Government and the names of the owners of the elephants, he sought for an adjournment. In the meanwhile, the learned Advocate General appearing for the State has brought to our notice a G.O. issued by the Government in G.O.Ms.No.310, Tamil Development, Religious Endowments and Information (RE 1-1) Department, dated 1.12.2011, whereunder the Government has ordered conducting of rejuvenation camp for 45 elephants belonging to temples and maths for the year 2011-2012 further granting a sum of Rs.45 lakhs (Rs.1 lakh per elephant) towards expenditure for the elephants special welfare camp. Today, Mr.Elephant G.Rajendran has come forward to file an additional affidavit, stating that from G.O.Ms.No.310, dated 1.12.2011, he came to know that 45 elephants are going to be shifted to Mudumalai from various temples in Tamil Nadu and further giving details of some of the temples where from the elephants are being taken to the rejuvenation camp. 7. The bone of contention of the learned counsel for the petitioners is that the Government, in the earlier round of litigation, in W.P.No.2325 of 2009, has given an undertaking that they are not going to shift the elephants for rejuvenation camps and the present decision of the Government is against their own undertaking, besides amounting to contempt of order of this Court passed in the said Writ Petition No.2325 of 2009, dated 30.4.2009. 8. We have gone through the said order dated 30.4.2009 passed by a contemporary Division Bench of this Court, from which it is clear that the said writ petition has been filed by the very same Trust, who is the petitioner in W.P.No.27864 of 2011 herein, praying for a Writ of Mandamus directing the respondents not to send any ailing domestic elephant to the elephant camp at Mudumalai or to any other elephant camp in any hill forest area in the State of Tamil Nadu. In this Writ Petition, the Government has filed a counter affidavit, wherein at Para No.16, it has been stated by them that "It is respectfully submitted that as regards para 12 of the affidavit, there is no proposal with the Forest Department to send ailing domestic animal to Mudumalai for treatment now." (emphasis by us) https://hcservices.ecourts.gov.in/hcservices/ 9. The other ground urged in the said writ petition was that an ailing female elephant by name Andal is being shifted to Mudumalai rejuvenation camp and the respondents have to be injuncted against this action of theirs. Taking note of all the facts and circumstances, the Division Bench of this Court has ordered as follows: "As far as the female elephant - Andal is concerned, the same shall be re-transported to plains and kept at the zoo located at Kurumpatti at the cost of the petitioner herein but under the direct control and supervision of the Forest Department officials. The respondents 1 and 3 shall workout the cost of re-transportation and intimate the same to the writ petitioner to enable him to deposit the same in advance. Further the said elephant shall be treated for tubercolosis by a trained veterinary Doctor and if necessary the concerned Doctor can avail the offer made by the writ petitioner and utilise the drugs and injections that may be provided by him for treating the elephant. While re- transporting the elephant from Theppakkadu Elephant camp to Kurumpatti zoo, Salem, the animal need not be brought at a stretch but necessary rest may be given to the animal at regular intervals and on an each day the vehicle transporting the elephant 'Andal' may not travel more than 75 kms. and such transportation shall also be under the direct control and supervision of the officials of the Forest Department. The writ petitioner may be permitted to bring specialised Veterinary Doctors from abroad to treat the animal if necessary and the respondents shall cooperate with the writ petitioner in that regard." 10. Therefore, the very prayer of the writ petitioner/Trust in the earlier W.P.No.2325 of 2009 is not to send any ailing elephant to the elephant camp and it is neither his prayer nor the order of the Court, completely banning transportation of the elephants - even the healthy elephants - for rejuvenation camps, as is now being tried to be interpreted on the part of the learned counsel for the petitioner. It is also not the undertaking of the official respondents that they will never transport the healthy elephants to the rejuvenation camps. In fact, after the order of the Division Bench of this Court, the State Government, in exercise of the powers conferred by clause (f) of sub-section (2) of Section 64 of the Wildlife (Protection) Act, 1972, has framed the Tamil Nadu Captive Elephants (Management and Maintenance) Rules, 2011 and they came into force w.e.f. 16.9.2011. 11. Under Rule 13 of these Rules, 'the acts which are tantamount to cruelty to elephant and are prohibited' are listed out. Rule 13 (4) prohibits 'conveying or carrying an elephant, in or upon any vehicle or otherwise in such a manner or position as to subject it to https://hcservices.ecourts.gov.in/hcservices/ unnecessary pain or suffering or cause accident'. Rule 13(20) prohibits transporting elephants in trucks for over twelve hours at a stretch. Therefore, from these Rules, it is clear that the Legislature, in its wisdom, has framed these Rules to well protect the elephants. Further, while issuing G.O.(Ms.)No.310, dated 1.12.2011, the Government has also taken into consideration the order passed by the Division Bench of this Court in W.P.No.2325 of 2009, dated 30.4.2009 and the report/proposal of the Commissioner, HR&CE Department, Chennai. 12. Neither the above said Rules nor the G.O.Ms.No.310 are challenged by the petitioners. Therefore, we are not able to appreciate any of the contentions urged on the part of the petitioner in W.P.No.27864 of 2011. Accordingly, the same is liable only to be dismissed. 13. With regard to W.P.No.28002 of 2011, wherein the petitioner has prayed to direct the respondents to conduct the rejuvenation camps at any place, other than Mudumalai Tiger reserve, it is to be mentioned that it is the policy decision of the Government to conduct the elephant rejuvenation camp at Mudumalai forest and Courts are not expected to poke their nose into each and every action of the Government, particularly where no material is available with them to cause interference into the decision of the Government. To explain, no material has been placed before us by the petitioner to find fault with the decision of the Government to conduct elephant rejuvenation camp at Mudumalai. Therefore, this writ petition also is liable only to be dismissed. For all the above reasons and dicussions, both these writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa/Rao To 1. The Secretary to the Government of Tamilnadu Forest Department, Secretariat, Chennai-600009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Principal Chief Conservator of Forest, Panagal Building, Saidapet, Chennai-15. 3. The Wildlife Warden, Mudumalai Sanctuary, Ooty, Nilgiris District. 4. The Secretary, to the Government of India. Union of India, Pariyawaran Building, C.G.O.Complex, New Delhi. 5. The Commissioner, Hindu Religious and Charitable Endowment, Nungambakkam, Chennai-600034. 6. The Field Director, Mudumalai Tiger Resort, Mount Stout Hill, Ooty 7. The Secretary to the Government of Tamilnadu Environment and Forest Department, Fort St.George, Chennai - 9. 8. The Chief Wildlife Warden, Tamil Nadu Forest Department, Panagal Building, Saidapet, Chennai-600015. 2 CCs to Special Government Pleader(F), SR.78166 and 74353 1 cc To The Government Pleader, SR.75211 1 CC to M/s.Elephand G.Rajendran, Advocate, SR.74894 1 CC to M/s.R.Meenakshi, CGSC, SR.74900 Common Order in W.P.Nos.27864 & 28002/2011 KSK(CO) SRA(10/12/2011) https://hcservices.ecourts.gov.in/hcservices/