Paramekkavu Devaswom represented by its Secretary and President v State of Kerala, represented by its Principal Secretary, Department of Forests and Wildlife, Forest Headquarters, Vazhuthacaud, Thiruvananthapuram, and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & THEHONOURABLEMRS.JUSTICESOPHYTHOMAS TUESDAY,THE3[RD]DAYOFOCTOBER2023/11THASWINA,1945 WP(C)NO.4838OF2022 ``` ``` PETITIONERS: ``` - **`1 PARAMEKKAVU DEVASWOM, HAVING ITS OFFICE AT GITANJALI BUILDINGS, ROUND EAST, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN CODE-680001, REPRESENTED BY ITS SECRETARY, G. RAJESH, AGED 58, S/O. V.G. PODUVAL, RESIDING AT CHANDRA VILLA, CHEMBUKKAVU VILLAGE, KEERAKULANGARA DESOM, EAST FORT P.O., THRISSUR TALUK, THRISSUR DISTRICT, PINCODE-680005.`** - **`2 THE PRESIDENT, PARAMEKKAVU DEVASWOM, HAVING ITS OFFICE AT GITANJALI BUILDINGS, ROUND EAST, CHEMBUKKAVU VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN CODE-680001.`** ``` BYADVS. P.VISWANATHAN(SR.) SHIBUJOSEPH AJITHVISWANATHAN SAYEDMANSOORBAFAKHYTHANGAL JEFFINJOHN M.SRIRAM AGNETJARARD C.B.GAUTHAM ``` ``` RESPONDENTS: ``` - **`1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF FORESTS AND WILDLIFE, FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN CODE-695014.`** - **`2 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE) AND CHIEF WILDLIFE WARDEN, FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.`** - **`3 THE ASSISTANT CONSERVATOR OF FOREST, THRISSUR SOCIAL FORESTRY, PALACE ROAD, CHEMBUKAVU P.O., THRISSUR, PIN CODE-680020.`** ``` BYADVS. SRI.NAGARAJNARAYAN,SPL.G.P(FOREST) SHRI.T.P.SAJAN,SPL.G.P.(FOREST) ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 03.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` WP(C) No.4838 of 2022 2 ## **JUDGMENT** ## **Sophy Thomas, J** . Paramekkavu Devaswom represented by its Secretary, and President filed this writ petition seeking a writ of mandamus directing the 2[nd] respondent-Principal Chief Conservator of Forests (Wild Life) and Wild Life Warden, to consider and pass orders in Ext.P7 application for certificate of ownership, and also for a direction to the 3[rd] respondent-Assistant Conservator of Forest to hand over the tusks of the deceased elephant ‘Paramekkavu Rajendran’, to its owner Paramekkavu Devaswom. 2. Paramekkavu Devaswom was the owner of the tusker named ‘Paramekkavu Rajendran’ and the Devaswom had obtained all the necessary documents pertaining to its ownership and possession from the statutory authorities. Ext.P1 is the copy of the data book of the tusker, Ext.P2 is the copy of its ownership certificate, Ext.P3 is the copy of certificate of implantation of microchip, and Ext.P4 is the copy of its insurance policy. That tusker died on 14.10.2019, and it was brought to the notice of the Divisional Forest Officer, Malayattoor Division, on the date of death itself, through Ext.P5 communication. Postmortem was conducted at Kodanad Forest area, and then its tusks were removed and WP(C) No.4838 of 2022 3 surrendered before the 3[rd] respondent-Assistant Conservator of Forest. The petitioner-Devaswom being the lawful and registered owner of the deceased tusker ‘Paramekkavu Rajendan’ and its animal trophy articles, the 2[nd] petitioner-President of the Devaswom submitted Ext.P6 declaration in Form No.13 under Rule 35 of the Kerala Wildlife (Protection) Rules along with Ext.P7 application under Section 40A of the Wild Life (Protection) Act, for certificate of ownership of the tusks of the deceased elephant, producing all the relevant documents evidencing its ownership. A copy of the same was submitted to the 3[rd] respondent-Assistant Conservator of Forest and that is Ext.P8. The deceased tusker ‘Paramekkavu Rajendran’ was a symbol of pride and prestige for the Paramekkavu Bhagavathi temple, and was a prominent figure in Thrissur Pooram for over six decades, and so, they wanted to display the artifacts, photographs, tusks etc. of the elephant in the Art Gallery, complying with the laws of the land. The Devaswom made Ext.P9 representation dated 18.01.2022 before the 2[nd] respondent-Chief Wild Life Warden, detailing the objects and purpose of the Art Gallery, and sought release of the tusks. Though the tusks were surrendered to the 3[rd] respondent during postmortem, it was done only temporarily, for the safe custody of WP(C) No.4838 of 2022 4 the same. Ext.P7 application is pending before the 2[nd] respondent from 17.10.2019 onwards, and so far no order has been passed in that application. So the petitioners approached this Court with the above writ petition. 3. As directed by this Court, the 3[rd] respondent filed a statement dated 09.05.2022, stating that, after death of a captive elephant, the Forest Department will keep all details of the dead elephant including mahazar, postmortem report and all other registers and documents mentioned in the Captive Elephant (Management and Maintenance) Rules, 2012. The tusks, being Govt.property, will be collected and kept in safe custody of the Forest Department and the custodian has no right over the tusks removed from a dead captive elephant. Hence the petitioner-Devaswom has no right over the tusks derived from the deceased captive elephant Rajendran. The immunity and protection of Section 40A of the Wild Life (Protection) Amendment Act, 2002 extend only upto the year 2002 and it could not extend to an application submitted in the year 2019. Hence the Forest Department could not entertain the wrongly submitted applications by the petitioner. As per the report of the Vigilance Wing of the Forest Department, in order to prevent trading of captive elephant WP(C) No.4838 of 2022 5 ivory, serious and strict interventions were warranted to completely wipe out such sources and the flourishing syndicate. Asiatic elephant is a highly threatened species which deserves special protection from extinction, and display of animal articles and trophies by private persons and organisations may lead to unlawful markets, and transactions of these goods may eventually lead to exploitation and hunting, culminating in extinction of that species. During postmortem of the tusker Paramekkavu Rajendran, its tusks were separated and taken into safe custody of the Forest Department. The petitioners have no right to get an order of release of the tusks of Paramekkavu Rajendran, as it is the property of the State Government. 4. Heard learned counsel for the petitioner and the learned Special Government Pleader (Forest). 5. Admittedly, the tusker Paramekkavu Rajendran was under the control, custody and possession of the President of Paramekkavu Devaswom. Exts.P1 to P4 stand in proof. That elephant died on 14.10.2019 and that fact was intimated to the Divisional Forest Officer, Malayattoor Division on 14.10.2019 itself, as seen from Ext.P5 letter. Ext.P6 Form 13 declaration of trophy etc. was submitted to the Additional Principal Chief Conservator of WP(C) No.4838 of 2022 6 Forests on 17.10.2019 i.e, on the third day of the death of Paramekkavu Rajendran. Along with Ext.P6 declaration, Ext.P7 application for certificate of ownership and Ext.P8 request for release of the tusks were submitted by the petitioners, enclosing relevant documents. But, the grievance of the petitioners is that, so far Ext.P7 application has not been considered by the 2[nd] respondent. 6. Sub rule 6 of Rule 8 of the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 reads as follows: “(6) The owner shall report within 24 hours, to the Chief Wildlife Warden or to the officer authorised by him, the death of an elephant, and the tusks, if any, shall be declared within one week to the Chief Wildlife Warden for obtaining Ownership Certificate”. 7. Section 40 of the Wild Life (Protection) Act, 1972 (hereinafter referred as ‘the Act’) reads as follows: **40. Declarations** .—(1) Every person having at the commencement of this Act the control, custody or possession of any captive animal specified in Schedule I or Part II of Schedule II, or animal article, trophy or uncured trophy derived from such animal or salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days from the commencement of this Act, declare to the Chief Wild Life Warden or the authorised officer the number and description of the animal, or article of the foregoing description under his control, custody WP(C) No.4838 of 2022 7 or possession and the place where such animal or article is kept. (2) No person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skin of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer. (2A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wild Life (Protection) Amendment Act, 2002 acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance. (2B) Every person inheriting any captive animal, animal article, trophy or uncured trophy under sub-section (2A) shall, within ninety days of such inheritance make a declaration to the Chief Wild Life Warden or the authorised officer and the provisions of sections 41 and 42 shall apply as if the declaration had been made under sub-section (1) of section 40: Provided that nothing in sub-sections (2A) and (2B) shall apply to the live elephant. (3) xxxxx (4) The State Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer any animal or animal article or trophy (other WP(C) No.4838 of 2022 8 than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, in such manner, and within such time, as may be prescribed.” 8. Section 40A of the Act also is relevant to be extracted, which reads as follows: **“40A. Immunity in certain cases** .—(1) Notwithstanding anything contained in sub-sections (2) and (4) of Section 40 of this Act, the Central Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer, any captive animal, animal article, trophy or uncured trophy derived from animals specified in Schedule I or Part II of Schedule II in his control, custody or possession, in respect of which no declaration had been made under sub-section (1) or sub-section (4) of Section 40, in such form, in such manner and within such time as may be prescribed”. 9. Section 41 deals with the inquiry and preparation of inventories by the Chief Wild Life Warden or the authorised officer on receipt of a declaration made under Section 40. 10. Section 42 of the Act deals with the certificate of ownership, to be issued by the Chief Wild Life Warden to a person who is in lawful possession of any wild animal or any animal article, trophy, uncured trophy etc. 11. In the case on hand, the petitioners submitted declaration under Form 13 on 17.10.2019 along with an application for WP(C) No.4838 of 2022 9 certificate of ownership of the tusks of deceased Paramekkavu Ranjendran. Obviously, the respondents are not disputing the ownership of the captive elephant Paramekkavu Rajendran by the petitioner Devaswom. Ext.P7 application submitted for certificate of ownership as envisaged under Section 42 of the Act, has not been considered so far, by the 2[nd] respondent. Whatever be the outcome, the 2[nd] respondent is bound to pass an order on that application after conducting an enquiry, as envisaged under Section 41 of the Wild Life (Protection) Act read with Rule 10 of Declaration of Wildlife Stock Rules (hereinafter referred as ‘the Rules’). 12. The prayer of the petitioners in this writ petition is to issue a writ of mandamus directing the 2[nd] respondent to consider and pass orders in Ext.P7 application for certificate of ownership and also to direct the 3[rd] respondent to release and hand over the tusks of the deceased tusker Paramekkavu Rajendran, to the petitioners. 13. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** , the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders WP(C) No.4838 of 2022 10 or directions which are contrary to what has been injected by law. 14. It is for the 2[nd] respondent to consider and pass orders on Ext.P7 application, after conducting a detailed enquiry as envisaged under Section 41 of the Act and various Rules under the Declaration of Wildlife Stock Rules, since the said application is still pending consideration before the said respondent. 15. In the result, the 2[nd] respondent is directed to consider and pass orders on Ext.P7 application strictly in accordance with the provisions of the Act and Rules, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Needless to say, the enquiry has to be conducted with notice to the petitioners, and affording them an opportunity for hearing to substantiate their claim. With these directions, we dispose of this writ petition leaving open all the legal and factual contentions to be advanced from either side. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **SOPHY THOMAS, JUDGE** Smp WP(C) No.4838 of 2022 11 ## **`APPENDIX OF WP(C) 4838/2022`** ## **`PETITIONERS’ EXHIBITS :`** ``` ExhibitP1THETRUEPHOTOSTATCOPYOFDATABOOKOFTHE TUSKERPARAMEKKAVURAJENDRANISSUEDBYTHE 1STRESPONDENTDATED16/04/2021. ``` ``` ExhibitP2THETRUEPHOTOSTATCOPYOFTHEOWNERSHIP CERTIFICATEBEARINGNO.83/04ISSUEDBYTHE 2NDRESPONDENTDATED05/05/2004. ExhibitP3THETRUEPHOTOSTATCOPYOFTHECERTIFICATEOF IMPLANTATIONOFMICROCHIPBEARINGNO. 000658E416DATED17/07/2007. ExhibitP4THETRUEPHOTOSTATCOPYOFTHEINSURANCE POLICYDOCUMENTBEARINGNO. 76030047180800000076DATED01/03/2019,ISSUED BYTHENEWINDIAASSURANCECOMPANYLIMITED, THRISSUR. ExhibitP5THETRUEPHOTOSTATCOPYOFTHECOMMUNICATION ISSUEDBYTHESECRETARYOFTHEPETITIONER DEVASWOMTOTHEDIVISIONALFORESTOFFICE, MALAYATOORDIVISION,DATED14/10/2019. ExhibitP6THETRUEPHOTOSTATCOPYOFTHEDECLARATION MADEBYTHE2NDPETITIONER,INFORMNO.13, UNDERRULE35OFTHEKERALAWILDLIFE (PROTECTION)RULES,1978DATED17/10/2019. ExhibitP7THETRUEPHOTOSTATCOPYOFTHEAPPLICATIONIN THEPRESCRIBEDFORMUNDERSECTION40AOFTHE WILDLIFE(PROTECTION)ACT,1972FOR CERTIFICATEOFOWNERSHIPOFTHETUSKSOFTHE DECEASEDTUSKERPARAMEKKAVURAJENDRANDATED 17/10/2019. ExhibitP8THETRUEPHOTOSTATCOPYOFTHEREPRESENTATION DATED17/10/2019,ISSUEDBYTHE2ND PETITIONERTOTHE2NDRESPONDENT,WITHACOPY TOTHE3RDRESPONDENT. ``` WP(C) No.4838 of 2022 12 ## **`Exhibit P9`** ``` THETRUEPHOTOSTATCOPYOFTHEREPRESENTATION DATED18/01/2022ISSUEDBYTHE1STPETITIONER TOTHE2NDRESPONDENT. ``` ## **`RESPONDENTS’ EXHIBITS : NIL`**