IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 31897 of 2003(V) --------------------------------------- PETITIONERS: ------------------ 1. M. BALACHANDRA MENON, MARAMITTATH HOUSE, CHERAI P.O., ERNAKULAM DISTRICT. 2. M.P. JOSE, MITTATHANICKAL HOUSE, NEDUMBASSERY P.O., ATHANI, ALUVA. 3. M.D. JOSE, MENACHERY TIMBER DEPOT, PARUR JUNCTION, ALUVA-8. 4. C.P. JOY, CHOWARAN, MATTOOR, MAROTTICHODU, KALADY. 5. T.M. ABDUL NAZAR, THENOOR HOUSE, MUDICAKL P.O., PERUMBAVOOR. 6. K.H. MAHINKUTTY, KAROTHUKUDY HOUSE, P.P. ROAD, PERUMBAVOOR. 7. M. ENATY, RETIRED FORESTER, MONIKATTIL HOUSE, P.O. CHERUVATHOOR, KOTHAMANGALAM. 8. P.M. MUHAMMED KUNHU, PANAKKAL HOUSE, MULAVOOR P.O., MUVATTUPUZHA. 9. PRADEEP V.G. SECRETARY, NAIR SERVICE ASSOCIATION, NAYARAMBALAM. 10. V.S. RAVEENDRANATH, PRESIDENT, NEAR KARAYOGAM, NAYARAMBALAM. 11. K.P. RAVINDRANATHA MENON, REKHA NIVAS, EDAVANAKKAD. 12. SREEKANTH SSREEDHAR, PARUMITTATH HOUSE, KARUMALLOOR. W.P.(C) NO.31897/2003 13. V.C. JOY, VETTICKANAKUDY HOUSE, KARATTUPALLIKARA, PERUMBAVOOR. 14. C.P. MUHAMMED, CHERUPURATH HOUSE (VATTEKKADAN), PARIPRA P.O., KOTHAMANGALAM. 15. V.V. ANWAR SADATH, VADAKKANATH HOUSE, CHALACKAL, MARAMPILLY P.O. 16. M.K. HAMZA, MOOKKADA HOUSE, MUDICKAL P.O. 17. P.V. DEVASSIKUTTY, PALLICKAL HOUSE, KALADY P.O. 18. C.K. SALIM, CHIRAKKAKUDY HOUSE, KANDANTHARA, ALLAPRA P.O., PERUMBAVOOR. 19. K.V. BALAKRISHNA SHENOY, 193/B, KALARIKKAL, SOPANAM, AMMANKOVIL ROAD, ERNAKULAM. 20. THOMAS GEORGE, MADATHIL HOUSE, MARADU P.O., KUNDANNOOR, ERNAKULAM DIST. 21. K. CHANDRAN, RAKHEE BHAVAN, TRIPUNITHURA. 22. L. KRISHNA BHAT, CHIEF PRIEST, C.T.D. 8/256, R.G.PAI ROAD, KOCHI-2. 23. ADV.A.B. PRABHU, PRESIDENT, COCHIN THIRUMALA DEVSWOM GOSREEPURAM, COCHIN-2. 24. PUTHALI VISWANATHAN, 193/B KALARIKKAL, SOPANAM, AMMANKOVIL ROAD, ERNAKULAM. 25. RANGADASAPRABHU, MANAGING ADHIKARI, ERNAKULAM THIRUMALA DEVASWOM, COCHIN-35. 26. K. NARAYANANKUTTY, GOURI NIVAS, PERUVARAM WEST, N. PARAVOOR. 27. M.A. THOMAS, MOODHANKAILINGAL HOUSE, PAMPADY P.O., KOTTAYAM. 28. ANSARI V.M., S/O. MAJEED, VADAKKAYIL, MUTHALAKODAM P.O. 29. JOSEPH SEBASTIAN, EDATTU HOUSE, KODIKULAM P.O., THODUPUZHA. W.P.(C) NO.31897/2003 30. E.K. HANEEFA, ELAVUMTHADATHIL HOUSE, ELADAZHOM P.O., THODUPUZHA. 31. V.M. HABIBULLA, VADAKKEYIL, MUTHALAKODAM P.O. THODUPUZHA. 32. MATHEWS V. ABRAHAM, VALIYAMARUTHUNKAL, ELAMDESOM, THODUPUZHA. 33. RATHEESH CHANDRAN, MUNDACKAL HOUSE, THODUPUZHA. 34. SONY JOHN, CHAKKALAKUDIYIL HOUSE, KALLOORKKAD P.O., MUVATTUPUZHA. 35. VIGI ALBERT, PLATHOTTAM HOUSE, MEMADANGUR P.O. MUVATTUPUZHA 36. K.M. SKARIA, KOLLARACKAL HOUSE, SOUTH MARADY P.O., MUVATTUPUZHA 37. ALBERT JOSE, PLATHOTTAM MEMADANGU P.O., MUVATTUPUZHA. 38. JAYACHANDRAN, KOTTARATHIL HOUSE, EDAVATTOM, P.O., THALAYOLAPARAMBU. 39. S. RAVEENDRAN, AMMINI NIVAS, KOOVAPADAM, KOTTINGALPARAMBU, COCHIN-2. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN SRI.P.S.VIJAYAN RESPONDENTS: ----------------------- 1. UNION OF INDIA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, MINISTRY OF FORESTS, NEW DELHI. 2. THE CHIEF SECRETARY TO GOVERNMENT, STATE OF KERALA, THIRUVANANTHAPURAM. 3. THE CHIEF CONSERVATOR OF FORESTS, FOREST DEPARTMENT, THIRUVANANTHAPURAM. ADV. SRI.JAYAPRADEEP. V., ADDL.CGSC FOR R1 GOVERNMENT PLEADER SRI.NOBLE MATHEW FOR R2,3 SRI.P.S.SREEDHARAN PILLAI, SCGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31897/2003 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE NOTIFICATION NO.16/2003 DT. 29TH JANUARY, 2003 PUBLISHING WILD LIFE PROTECTION (AMENDMENT) ACT 2002. EXT.P2:- COPY OF THE PRESS NOTE DT. 17.6.03 ISSEUD BY THE PRINCIPAL CHIEF FOREST CONSERVATOR AND CHIEF WILD LIFE WARDEN, KERALA. EXT.P3:- COPY OF THE APPLICATION FORM UNDER SECTION 40A OF WILD LIFE PROTECTION ACT 1972 FOR CERTIFICATE OF OWNERSHIP. EXT.P4:- COPY OF THE NEWS ITEM APPEARE IN MALAYALA MANORAMA DAILY DT. 28.8.03. /TRUE COPY/ P.A. TO JUDGE tss KURIAN JOSEPH, J. --------------------------------------- W.P.(C) No.31897 OF 2003 --------------------------------------- Dated this the 8th day of August, 2008. J U D G M E N T The petitioners in this writ petition are owners of elephants. The challenge in this writ petition 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 this writ petition, this Court had issued an interim order staying the operation of the impugned provision. 2. 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 W.P.(C) No.31897/03 2 elephants, sometimes even to protect 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. 3. 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. 4. 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 W.P.(C) No.31897/03 3 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 sale, transfer and other dealings involving change 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. The applications should be disposed of after conducting an enquiry within a period of 30 days from receipt of application. W.P.(C) No.31897/03 4 State Government should issue necessary instruction to the revenue and police authorities to collaborate with the Chief Wild Life Warden and the authorized officials to ensure that the Captive Elephant Management Rules are properly enforced. This writ petition is disposed of as above. KURIAN JOSEPH, JUDGE. smp W.P.(C) No.31897/03 5 KURIAN JOSEPH, J. W.P.(C) No. 31897 OF 2003 J U D G M E N T 08.08.2008