IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 28" DAY OF AUGUST, 2007 BEFORE THE HON'BLE MR. JUSTICE ASHOK '8. HINCHIGERI Writ Pctition No.49209/2004 C/w Writ Petition No.7276/2005(Ghi-Rea) WRIT PETITION No.49209/2004 Between: Jalahaill Sree. Ayyappen Temple Trust, Jalahalli West, Bangalore 560 013, Rep. By its Secretary, By name N.S.Unnikrishivan Althal .» Petitioner © (By Sri 7.V.Vijay Raghavan, Advocate ) And: 1. ‘The Principal Secretary, Forest Ecology and Environment, Government cf Karnataka, Bangaicre. 2. The Principal Clef Conservator Of Forest (Wild Life), "Aranya Bhavan", Second Floor, 18” Cross, Malleswaram, Dangalcre 560 003, 3. Compassion Unlimited Plus Action (CUPA), Wo.257, 1® Cross, H.A.L. 2" Stage, Indiranagar, Bagalore 560 038, Rep. By its Vice President, Mrs, Suparna Baksi Ganguly. .~ Respondents(By Sri Sathyanarayana Singh HCGP for R-1 and 2, Sri E.Massilamani Advocate for R-3) This Writ Petition Is filed under Articles 226 snd 227 of the Constitution of India praying to quash the order passed by R-2, dt.30.4.2004 vide Annex.s and eic. WRIT PETITION No.7276/2005 Between: Compassion Unlimited Plus Action (CUPA), Rep. By its Secretary Smt.Sanober Z.Bharucha No.257, 1® Cross, H.A.L. 2% Staga, Indiranagar, Bagalors 569 238, .. Petitioner (By Sri Efasstamani & Sti B.K.Nanda Kumar, Advocate ) And: 1. The State of Kernataka Rep. By its Chief Secretary, Vidhana Soucha, Bangalore 560 001. 2. Tha State of Karnataka, Rep. By its Principal Secretary, Forest Environment and Ecology Multl-sooreyed Building, 3* Stage, 4" Floor, Dr.B.R_Ambedkar Veedhi, Bangelere 560 001. 3. The Principal Chief Conservator of Forests (Wild Life), Aranya Bhavan Second Floor, 18" Cross, Malleswaram, Bangalore 560 003.4, Jalahalll Sree. Ayyappan Temple Trust, Rep. By Its Secretary, N.S.Unnikrishnan Aithal Jalahalll West, Bangalore 560 015. 5 Animal Welfare Board of India, Rep. By its Secretary, TIT Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai 600044, -» Respondents. (By Sri Sathyanarayana Singh HGP for R-1-3, Sri T.V.Vijay Raghavan for R-4, Sri S.R.Sundrem for R-5 This Writ Petition is filed under Articias 226 and 227 of the Constitution of India praying te direct vide Anenx.D dt.25.2.2002 Issued ev R-3 in favour of the 4 respondent in respect of the said mata olephant -Girija Prasad alias Manikantan Is Illegal, srbitrary, null and vold and etc. These Writ Patitions are coming on for hearing this day, Court made the following: ORDER ‘The challenge in writ petition No.49209/04 is to the 2™ respondent's order, dt.30.4.2004, vide Annexure-G removing the elephant from the custody of the petitioner. 2. The brief facts of the case are that the patitioner is the owner of the elaphant namely, Girija ABU.4 Prasad alias Jalahalli Manikantan. In this regard, the 2n respondent issued the certificate of ownership (Annexure-A) on 25.2.2002 to the petitioner. The 3” respondent complained to the 2™ respondent of the torture on the elephant amounting to vioiations of certain provisions of the Prevention cf Crueiiy to Animals Act, 1960 and wild Life(Protection)Act,1972. The 2” respondent vide Officlal Mernorandum, dt.30.4.2004 (Ansiexure-G) ordered tamporary transportation of the elaphant,. till further orders, to Dubare Elephant Camp in Madikere Division. The order states that it ig passed to avoid any untoward incident during the festival time to the devotees coming to the petitioner's Ayyappan Temple and also to prevent further distress and ill treatment to the elaphant. 3. It is this order, which is being assailed by Sri Vijay Raghavan, learned counsel for the petitioner in writ petition No.49209/2004. He submits that the ABH.impugned order is issued without the authority of law and without jurisdiction. Once the ownership certificate Is issued under Section 42 of the wild Life (Protection) Act, 1972, it cannot be ramoved from the custody of its rightful owner. 4. His second submission is that the principles of natural justice are not observed while passing the impugned order. The petitioner is noi put on any notice, much less bsing afforded with an opportunity of hearing. 5. The last submission of Sri Vijay Raghavan is that the petitioner is acquitted in C.C.No.15925/2004 by a judgment, dt.17.3.2007 passed by the VIII Addl. Chief Metropoiitan Magistrate Court, Bangalore. It is his emphatic case that the said criminal case was foisted upon the petitioner for the offences punishable Ufs.11(1)(a)(f) and 11(2) of the Prevention of Cruelty to Animals Act, 1960. In view of this clean acquittal, ABH.it has to be taken that there is no substance in the complaint of the 3 respondent. 6. Sri Sathyanarayana Singh, the learned Government Pleader appearing for the respondent Nos.1 and 2 submits that as per tha medica! report of the Veterinary Officers, the elephant is tortured, as is evident from the injuries found on several parts of the elephant particularly, on its leg. He aiso complains of the unhygienic eonditions in which the elephant was kept. He has filad a tatter, dt.9.6.2007 of the Assistant Director of Bannerghatta Bioingical Park, which states that the slephant should be shifted to Elephant Camp so that its uncredictable behaviour can be changed. Pointing out from the detailed counter filed on behalf of the respondent Nos.1 and 2, he submits that the elephant had escaped couple of times, without the Mahut. into Siddarthanagar scaring the local people. He submits that the unhygienic environs in which the elephant was kept, the elephant receiving the injuries AGH,7 and abscess being formed on its left hind leg, the elephant getting into ’Masth’ etc. are evident from the ii) iii) lv) ) vi) 3" respondent's letter, dt.27,3.2004 Letter, dt.26.3.2004 of tha — Assistant Conservator of Forests, Letter, dt. 26.3.2004 of the Range Forest Officer, Bangalore, Letter, dt6.4.2004 of the Asst. Diector, Bannerghatta Biclogical Park, Bangalore, Letter, t.30.3.2004 and 6.4.2004 of the Police _ Inspector, Gangammagudi Police Station, Bangatore, Leiter No.AS dt.6.4.2004 of the Deputy Conservator of Forests, Bangalore Urban Civision, Bangalore. He therefore submits that the decision to shift the elephant from the petitioner's custody to a park is in AGH.the best interests of the elephant and also of the people. 7. Based on the experts suggestions, the Wild Life Authorities want to shift the elephant from the Bannerghatta Biological Part to Sakkarebailu Elephant Camp at Shimoga. Seeking the permission for shifting, I.A. No.1/2006 is filed on behaif of the Government. 8. Sri E Massiiamani,. the learned counsel appearing for the 3° respondent - CUPA brings to my Notice the provisions contained in Sec.11(2) of the Prevention of Cruelty to Animals Act, 1960. The said subsection reads as follows: “11(2). For the purposes of sub-section (1), an owner shall be deemed to have committed ari. office if he has failed to exercise reasonable care and supervision with a view io the prevention of such offence: Provided that where an owner is convicted of permitting cruelty by reason only of having failed to exercise such care and supervision, ABH.he shall not be liable to imprisonment without the option of a fine.” 9. As the petitioner has not created adequate facilities for housing, maintenance and upksep ef the elephant, which it is duty bound under the proviso to Sec.42 of the Wild Life (Protection) Act, 1972, he submits that the petitioner cannot wasn his hands off by saying that if there are any problems, i is created by the Mahuts or somebody else and not by the petitioner. 10. Sri Massilamani further brings to my notice, the Central Zoo’s Authority’s latter, dt.28.7.1999 (Annexure F in Writ Petition No.7276/2005) which states that in view of the poor record of the temples, the elephants should not be gifted to temples and charitable endowments by the State Govemment. The letter further calls upon the 1% respondent to instruct the District Authorities to improve the living conditions of elephants. Nextly he brings to my ABH.0 notice, the Government Order, dt.28.6.2000 (Annexure G in Writ Petition No.7276/2005) which has imposed a ban on the transfer of elephant to religious institutions and private individuals by way of donation, gift or sale. Despite the Central Government's instructions and the State Government's ban on by a temple or private individua!, acquiring the elephant, the 2" respondent has tssued the ownership certificate to the patitioner. He therefore prays for quashing of tha ownership certificate, dt.25.2.2002 (Annexure-A in: Writ Petition No.49209/04,which is and Annexure-D in Writ Petition No.7276/05) and for a@ further consequentiai direction that the custody of the elephant he parmanently vested with the Principal Chief Conservator of Forests (Wild Life). 11. The submissions of the learned counsel have received my anxious consideration. I cannot give any acceptability to the first submission made on behalf of the petitioner in Writ Petition No.49209/04 ABH.that the impugned order is without jurisdiction. The impugned order in no way takes away the petiticner’s ownership of the elephant. Besides, if the Government officiais on the advice cf the veterinary experts forms the considered view that in. the interest of the elephant, it is to be shifted to some other place or park, it cannot be held to be at fault. It is certainly profitable to refer tc the intentment behind the Animal Welfare Legislztio:. The statement of objections reasons to the Wild Life (Protection) Act, 1972 shows that the said Act was enacted to provide for the protection of the wild animals . Further, the proviso to Sec.42 of tive said Act reads as follows: “Provided! that before issuing the certificate of ownership in respect of any captive animal, the Chief Wild Life Warden shall ensure that the applicant has adequate facilities for icusing, maintenance and upkeep of the enimal.” 12. While it is not in dispute that the proviso is inserted with effect from 1.4.2003 i.e. subsequent to ABH.the granting of the certificate of ownership on 25.2.2002 to the petitioner, it cannot be said that if the owner does not ensure adequate facilities for housing, maintenance and upkeep of the elaphant, the Government officials should be mute spectators to the same. 13. The statement of objections reasons to the Prevention of Cruelty to Animals Act, 1960 shows that it was enacted te prevent the infliction of unnecessary pain and suffering on the animals. I therefore do not find anything wrong with what the Government officials have done by shifting the elephant from the custody of tha petitioner to a more congenial atmosphere. 14, The petitioner's sacond grievance over the Aon-compliance of the requirement of the natural justice is also to be considered. Observing the strict principles of natural justice, in a situation Involving a3 dumb wild animal, may not be practicable, because it is not uncommon that in the process of observing the formalities the wild animal may breath its last. The authorities are expected to act befora the catastropha befalls. 15. However what is expected of the authorities Is in an emergency situation involving the wild animals, is giving the post decision hearing to. the aggrieved parties. Because i involvas ihe deprivation or suspension of ownership or possessory rights. This has not been done in this case. Therefore it is necessary that the gatitioner be givan an opportunity to show to the authorities that it has created adequate facilities for housing, maintenence and upkeep of the elephant. If the petitioner succeeds in doing so, the respondent Nios.1. and 2 shail reconsider their decision and restore the posssssion of the elephant to the petitioner. What is. pararnount in a case like this is the best interests of the animal and certainly not its owner or any other party.16. I negative the third contention urged on behalf of the petitioner. Just because the criminal case ended up in the acquittal, the petitioner is not entitled to get back the possession of the elephant as a matter of right. A copy of the acquittal ordar was made available to me at the bar. My reading of the same shows that tha presence of accused Nos.2 and 3, who were Mahuts, could not be secured and in their absence, the guilt could ot be established. Nonetheless, tie Criminal Court has unequivocally stated that there were injury marks on the legs of the elaphani, that the elephant was chained, etc. In the wake of these findings, reasons and observations made by the Criminal Court, the acquittal order does ‘not in any way entitle the petitioner to demand back the custedy of the elephant as a matter of right. 17. I do appreciate the cause being espoused in the second petition (Writ Petition No.7276/04) but at AGH.18 the same time, it is not for the Court to withdraw or cancel the certificate of ownership. It is for the authorities to take a decision in the matter after hearing the necessary parties and considering the relevant material placed before them. 18. I therefore negative the challenge to the impugned orders in both tna petitions and dispose off both the petitions with a direction to the 2% respondent — Principal Conservator of Forests to give the petitlorer-temple and the 3% respondent - Compassion Unimited Plus Action (CUPA) an opportunity of estabiishing their case and counter casa, considering ali the materials including the reports of veterinary officers and take appropriate decision in the matter. 1%. As the main matter itself is disposed off, no orcers need be passed on 1.A.1/2006 filed by the Gevernment. It is always open to the Government to ABH,16 make all the arrangements, which are in the best Interest of the elephant. The 2” respondent - Principal Conservator of Forests shall take a decision in the matter on the continuity of custody of the elephant with himself or handing it hack to the petitioner-temple within an outer limit of two months from today. No order as to costs. Sd/< Jades Br