SABU M JACOB v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945** ## **WP(C) NO.17521 OF 2023** ## **PETITIONER:** **SABU M JACOB S/O. M.C. JACOB, AGED 54 YEARS, PRESIDENT, TWENTY 20 PARTY, RESIDING AT MECKAMKUNNEL HOUSE VILANGU P.O., KIZHAKKAMBALAM, ERNAKULAM, PIN - 683562** **BY ADVS. BLAZE K.JOSE GOPIKA P. S.NIKHIL RAJEEV** ## **RESPONDENTS:** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND DAIRYING (DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRYING), GOVERNMENT OF INDIA, KRISHI BHAVAN, NEW DELHI, PIN - 110001** - **2 THE ANIMAL WELFARE BOARD OF INDIA, REPRESENTED BY ITS CHAIRMAN NATIONAL INSTITUTE OF ANIMAL WELFARE CAMPUS P.O., 42K STONE, DELHI - AGRA HIGHWAY, NH-2,VILLAGE SEEKRI, HARYANA, PIN - 121004** - **3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY THIRUVANANTHAPURAM,, PIN - 695001** - **4 STATE OF KERALA, REPRESENTED BY THE SECRETARY FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVNANTHAPURAM,, PIN - 695001** - **5 THE KERALA STATE ANIMAL WELFARE BOARD, THIRUVANANTHAPURAM, REP BY ITS SECRETARY, PIN - 695001** **WP(C) NO.17521 OF 2023** **2** - **6 STATE OF TAMILNADU REPRESENTED BY THE CHIEF SECRETARY FORT ST.GEORGE, CHENNAI, TAMIL NADU, PIN – 600 009** - **7 PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND CHIEF WILDLIFE WARDEN,FORT ST. GEORGE, CHENNAI, TAMIL NADU, PIN - 600009** - **8 THE CHIEF CONSERVATOR OF FORESTS AND FIELD DIRECTOR, SRIVALLIPUTHUR, VIRUDHUNAGAR, TAMIL NADU, PIN - 626125** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA** **SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL()** **SRI. SUVIN R. MENON-CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.** **-------------------------------------------------------------------------** W.P. (C) No.17521 of 2023 **--------------------------------------------------------------------** Dated this the 31[st] day of May, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the afore captioned Writ Petition (Civil), styled as a public interest litigation and initiated under Article 226 of the Constitution of India, are as follows:- - _“I. To issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 1, 2 and 6 to 8 to take utmost care and caution not to cause any injury or other health hazard to the bull tusker Arikomban while using tranquilization and kumki elephants to translocate and rehabilitating the elephant and strictly adhere to the statutory and mandatory protocols, standards and norms under the Wild Life (Protection) Ac, 1972 and the Rules there under._ - _II. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents to translocate and rehabilitate the bull tusker Arikomban to an alternate deep forest range that is completely disconnected from the home range by using scientific methods causing minimum trauma to the said animal in the even of tranquilizing the and capturing the same._ - _III. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 6 to 8 handover bull tusker Arikomban to respondents 3 to 5 and to translocate and rehabilitate the same in any of the forest divisions in Kerala._ - _IV. Dispense with filing of the translation of vernacular documents._ - _V. Issue any other appropriate writ, order or direction as this Honorable Court may deem fit on the facts and in the circumstances of the case and allow this petition with all costs.”_ 2. Heard Sri.Blaze K. Jose, learned counsel appearing for the petitioner, Sri.S. Manu, learned Deputy Solicitor General of India, instructed by Sri.Suvin R. Menon, learned Central Government Counsel W.P. (C) No.17521 of 2023 2 (CGC), appearing for R-1 & R-2 and Sri.Ashok M. Cherian, learned Additional Advocate General (Kerala), instructed and assisted by Sri.Syam Prasanth, learned Government Pleader, appearing for official respondents 3 to 5. In the nature of the orders proposed to be passed by this Court in this writ proceedings, notices to official respondents 6 to 8 (authorities of the State of Tamil Nadu), will stand dispensed with. 3. The petitioner claims that he is the Chief Coordinator of a charitable society, by name Twenty–20 Association, Kizhakkambalam and is also the President of the Twenty–20 Party, which is stated to be a registered political party with the Election Commission of India, and that he is also the Managing Director of one of the leading private industrial establishments in the State, namely 'Kitex Garments Ltd.', which is stated to be the largest private employer in the State of Kerala, situated in Kizhakkambalam. 4. The petitioner would state that this Court, in a _suo moto_ public interest litigation proceedings in W.P.(C) No.13204/2021, had passed order dated 23.03.2023, preventing the capture of a wild tusker, popularly known as ‘Arikomban’ (hereinafter referred for short as the 'wild tusker' or 'wild elephant') from Chinnakkanal area, W.P. (C) No.17521 of 2023 3 Munnar, Idukki District, and had constituted an Expert Committee, in that regard. Further, it is averred that after considering the report of the said Committee, this Court had passed an order dated 05.04.2023, ordering that the said Expert Committee has considered all relevant aspects and has come to the conclusion that the best possible way to deal with the present situation is only to capture, radio-collar and translocate the wild tusker to Parambikulam Tiger Reserve, Palakkad District, within the limits of the State of Kerala and that this could be the best option. 5. Further that, there were serious objections from the people of the locality in Parambikulam, Palakkad District, Kerala State, and therefore, this Court had passed an order dated 19.04.2023 in the above public interest litigation proceedings, directing that any alternative site that may be suggested by the Government of the State of Kerala for translocating the wild elephant, which has caused problems in Chinnakkanal area, shall be submitted in a sealed cover to the Expert Committee, constituted by the Court as per order dated 29.03.2023. It was further ordered therein that the members of the said Committee shall examine the feasibility and shall ensure that the details of the alternate site are W.P. (C) No.17521 of 2023 4 kept confidential, awaiting further orders from this Court. Further that, if the Committee approves the alternate site, then the capture and shifting of the wild tusker, in terms of the earlier orders issued by this Court in the public interest litigation proceedings, to the said alternate site, need not await further orders from this Court. Further that, on 30.04.2023, the wild elephant in question was tranquilized, captured, radio-collared and shifted to the Periyar Tiger Reserve, Idukki District, within the territorial limits of the State of Kerala. Further, it is averred that the learned Additional Advocate General has placed before the court a report/note on the capture and translocation of the afore wild elephant. Further, it is averred that, on 27.05.2023, the wild tusker had again entered the areas of human inhabitation within the limits of the State of Tamil Nadu, especially in Cumbam town. That, three people were reportedly injured while trying to escape after seeing the elephant and one of them had sustained serious injuries. Further, even according to the words used by the petitioner ‘the rogue elephant’ [see the top portion of synopsis on page 2 of the W.P.(C) and para No.16 on page 9 of the W.P.(C).], had damaged several vehicles parked in Cumbam town in Tamil Nadu. Further, it is averred that, while the wild tusker entered the 5 W.P. (C) No.17521 of 2023 densely populated area, the 7[th] respondent-Principal Chief Conservator of Forests and Chief Wildlife Warden of the State of Tamil Nadu, has issued Ext.P1 proceedings No.WL1/14072/2023 dated 27.05.2023, wherein it has been ordered to tranquilize and capture the elelphant and to translocate and release the wild tusker in the deep forest area of Vellaimalai in Varashanadu Valley of Megamalai Forest Division of the State of Tamil Nadu, in terms of the provisions contained in Sec.11 and Sec.48A of the Wildlife (Protection) Act, 1972, etc. 6. The gist of the grounds urged by the petitioner are to the effect that Sec.11 of the Wildlife (Protection) Act, 1972, gives paramount importance to the welfare of wildlife animals and the methods and course to be adopted is drafted in a meticulous way to ensure the safety and welfare of the animal. It is urged that the provisos to Sec.11 and the explanatory notes that follow makes it evident that the process of capture of such animals shall be made in such a manner to cause minimum trauma to the said animal. Further, it is also urged that the visuals on the media would show that the trunk of the elephant is badly injured and the tusker is weak, due to non-availability of drinking water, as per the opinion of W.P. (C) No.17521 of 2023 6 experts and that the animal is in utmost distress and danger, causing serious threat to its own life. It is also urged that releasing the wild tusker in the very same forest range and that too in an area too close cannot be considered as translocation and should be kept in mind that the animal should be translocated to a forest range that is completely disconnected from the home range of the elephant, to ensure that the same will not come near the human settlement, etc. It is in the light of these aspects that the petitioner has filed the aforecaptioned writ petition (civil) with the aforementioned prayers. 7. After hearing the aforesaid parties through their learned Advocates, and after going through the pleadings and materials on record, and also going through the provisions of the relevant provisions of the Wildlife (Protection) Act, more particularly Sec.11, etc., we specifically queried to the learned counsel appearing for the petitioner as to how the factual averments in the W.P.(C) could justify the grant of any of the prayers in the W.P.(C), more particularly prayers I, II & III. The first prayer is as follows:- - _“I. To issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 1, 2 and 6 to 8 to take utmost care and caution not to cause any injury or other health hazard to the bull tusker Arikomban while using tranquilization and kumki elephants to translocate and rehabilitating the elephant and strictly adhere to the statutory and mandatory protocols, standards and norms under the Wild Life (Protection) Ac, 1972 and the Rules there under.”_ W.P. (C) No.17521 of 2023 7 8. The specific factual version of the petitioner is that the wild tusker is now not within the territorial limits of the State of Kerala but within the territories of the State of Tamil Nadu. 9. The entire incidents projected in the writ petition, after the migration of the elephant, to the limits of the State of Tamil Nadu and the facts in relation to the issuance of Ext.P1 statutory order dated 27.05.2023, issued by the 7[th] respondent-Chief Wildlife Warden, Tamil Nadu, and the subsequent facts thereto have all happened within the territorial limits of the State of Tamil Nadu. We specifically queried to the petitioner as to whether there are any factual averments in the petition that show that the respondents 6-8 and the authorities of the State of Tamil Nadu, have, in any manner, neglected their duties or have caused any unnecessary harm or cruelty to the wild tusker in question. We also queried as to whether there are any averments that the abovesaid alleged injury on the trunk of the elephant was, according to the petitioner, caused by the acts of the officials of the Tamil Nadu or due to their gross negligence. 10. We also queried as to whether the petitioner has made out any averments that the respondent-Union Government W.P. (C) No.17521 of 2023 8 authorities (R-1 & R-2) and the respondent authorities of the State of Tamil Nadu (R-6 to R-8), have, in any manner, neglected to do their statutory duties and obligations, in terms of the provisions contained in the Wildlife (Protection) Act, 1972, or the guidelines issued by the Union Government in accordance with the said Act. The learned counsel appearing for the petitioner was unable to show us any factual pleadings on these crucial aspects. We have also gone through the pleadings in the W.P.(C) and it is seen that the petitioner has not made out any factual averments or grounds that, after the migration of the wild tusker to the territories of the State of Tamil Nadu, respondents 1, 2, 6 to 8 have, in any manner, acted illegally or have abdicated from the statutory duties and responsibilities. Therefore, even if we assume that this writ proceedings is maintainable, as against the respondent-authorities of the State of Tamil Nadu, no factual averments are made out to bring out a cause of action to justify a prayer in the above regard. So also, no legal contentions or grounds are urged in the W.P.(C). for justifying the grant of prayer No. I, with the support of the necessary factual averments. 11. On the other hand, Ext.P1 order dated 27.05.2023, issued by the 7th respondent-Chief Wildlife Warden, Tamil Nadu, reads as W.P. (C) No.17521 of 2023 9 ## follows:- _**“PROCEEDINGS OF THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND CHIEF WILDIFE WARDEN, CHENNAI-32 Present: Thiru. Srinivas R. Reddy, L. F. S.,**_ _**Proc. No. WL1/14072/2023 Dated: 21.05.2023**_ _Sub: Forests - Wildlife -A wild Elephant named Arikomaban enter into Cumbam town - To be translocated to the Vellimalai of Srivilliputhur Megamalai Tiger Reserve with the assistance of Kumki elephants - Permission requested for capture and translocation - Orders issued -Regarding._ _Ref: Chief Conservator of Forests and Field Director, Srivilliputhur Megamalai Tiger Reserve, Madurai, Ref. No. 9763/2023/A3, dated: 27.05.2023_ ## _… ..._ _The Chief Conservator of Forests and Field Director, Srivilliputhur Megamalai Tiger Reserve has informed that the wild Elephant name "Arikomban" which was translocated from the Idukki district, Kerala to the Periyar Tiger Reserve (i.e. close to the Kerala- Tamil Nadu border. At present, it has entered into the cumbum town, creating panic and Law & Order situation. This may lead to injury or death to human life and damage to the property. Therefore, she has requested to kindly issue order for tranquilizing the animal with held of Forest Veterinary team and translocate it with the help of Kumki's from Anamalai Tiger Reserve and Mudumalai Tiger Reserve in Vellaimalai in Megamalai Division of Srivilliputhur Megamalai Tiger Reserve._ _The report of the Chief Conservator of Forests and Field Director, Srivilliputhur Megamalai Tiger Reserve has been examined carefully and considering the safety of the elephant as well public the following order is hereby issued:-_ ## _**ORDER**_ _I, hereby order to form a Special Committee under the chairmanship of the Chief Conservator of Forests and Field Director, Srivilliputhur Megamalai Tiger Reserve to capture the elephant Cumbum Town of Srivilliputhur Megamalai Tiger Reserve Circle by using tranquilization and kumki elephants as per Section 11 (1) (a) of Wildlife (Protection) Act, 1972 including strict adherence to the provisos of this section. The Conservator of Forests and Field Director, Anamalai Tiger Reserve is hereby permitted to transport 3 well trained kumki elephants along with Veterinarians, mahouts and rescue team to Cumbum Town of Srivilliputhur Megamalai Tiger Reserve. The transport of the elephants is permitted under section 40 (2) of Wildlife (Protection) Act, 1972. The protocol, norms and standards for transportation mentioned in the Tamil Nadu Captive Elephant (Management & Maintenance) Rules,_ W.P. (C) No.17521 of 2023 10 _2011 should be followed during the transport of the elephants and fitness of the elephants shall be verified by the Veterinarians before transportation. The Chief Conservator of Forests, Srivilliputhur Megamalai Tiger Reserve shall make necessary arrangements for maintenance of the above elephants and to maintain the elephants until further orders. The Wildlife Warden, Hosur is requested to provide one vehicle along with Dr. Prakesh and his team to Cumbum Town of Srivilliputhur Megamalai Tiger Reserve. The Chief Conservator of Forests and Field Director, Srivilliputhur Megamalai Tiger Reserve, Madurai is requested to send the Dr. Kalaivanan to Cumbum Town of Srivilliputhur Megamalai Tiger Reserve. The captured elephants shall be translocated and released in deep forest area of Vellaimalai in Varashanadu Valley of Megamalai Division as per Section 48-A of the Wildlife (Protection) Act, 1972. A detailed action taken report along with photographs and video recordings should be sent after completion of this operation._ _Principal Chief Conservator of Forests and Chief Wildlife Warden”_ 12. Sec.11 of the Wildlife (Protection) Act, 1972, reads as ## follows:- _“_ _**Sec. 11** ._ _**Hunting of wild animals to be permitted in certain case-**_ _(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of Chapter IV,—_ _(a) the Chief Wild Life Warden may, if he is satisfied that any wild animal specified in Schedule I has become dangerous to human life or is so disabled or diseased as to be beyond recovery, by Order in writing and stating the reasons therefor, permit any person to hunt such animal or cause such animal to be hunted;_ _Provided that no wild animal shall be ordered to be killed unless the Chief Wild Life Warden is satisfied that such animal cannot be captured, tranquilised or translocated:_ _Provided further that no such captured animal shall be kept in captivity unless the Chief Wild Life Warden is satisfied that such animal cannot be rehabilitated in the wild and the reasons for the same are recorded in writing._ _Explanation.—For the purposes of clause (a), the process of capture or translocation, as the case may be, of such animal shall be made in such manner as to cause minimum trauma to the said animal._ _(b) the Chief Wild Life Warden or the authorised officer may, if he is satisfied that any wild animal specified in Schedule II, Schedule III, or Schedule IV, has become dangerous to human life or to property (including standing crops on any land) or is so disabled or diseased as to be beyond recovery, by order in writing and stating the reasons therefor, permit any person to hunt such animal or group of animals in a specified area or cause such animal or group of animals in that specified area to be hunted._ _(2) The killing or wounding in good faith of any wild animal in defence of_ W.P. (C) No.17521 of 2023 11 _oneself or of any other person shall not be an offence:_ _Provided that nothing in this sub-section shall exonerate any person who, when such defence becomes necessary, was committing any act in contravention of any provision of this Act or any rule or order made thereunder._ _(3) Amy wild animal killed or wounded in defence of any person shall be Government property”_ 13. A reading of the abovesaid provisions of Sec.11 of the Wildlife (Protection) Act as well as a reading of the impugned Ext.P1 order will make it clear that the 7[th] respondent-Chief Wildlife Warden, who is the sole statutory authority conferred with the statutory jurisdiction in terms of Sec.11, has exercised his discretion and has also ordered the constitution of an Expert Committee to assist him in the implementation of the decision and the various details of the ways and means for implementing the said order is also meticulously dealt with therein. Ultimately, the 7[th] respondent-Chief Wildlife Warden of the State of Tamil Nadu, who is the statutory authority, has ordered that the wild tusker, after capture, shall be translocated and released in the deep forest areas of the forest range of the forest division concerned of the State of Tamil Nadu, etc. We specifically queried to Sri.Blaze K. Jose, learned counsel appearing for the petitioner, as to how he can make out a case that Ext.P1 is illegal or _ultra vires_ to the provisions contained in Sec.11. Further, even according to the version of the petitioner, as can be seen from W.P. (C) No.17521 of 2023 12 his pleadings as well as ground V, Sec.11 gives the Chief Wildlife Warden, who is the statutory authority, to take recourse to three options-(i) hunt/kill (ii) translocate and rehabilitate the animal to the wild (iii) keep the animal in captivity. It is specifically asserted by the counsel for the petitioner that the capture and translocation of the wild animal to an alternate forest and rehabilitaion of the same, could be the first method that should be adopted. A reading of the provisos to Sec.11(1)(a) of the Wildlife (Protection) Act would make it clear that translocation to the wild of the wild animal is the preferred option. In this regard, the learned Addl. Advocate General and the learned Dy. Solicitor General of India have pointed out that that, as per the statutory provisions contained in Sec. 11, more particularly Sec.11(1)(a) and its two provisos, the statutory authority is empowered, as per the second proviso, to order for captivity of the wild animal, in lieu of translocation, if the said authority is satisfied that such animal cannot be rehabilitated in the wild and the reasons for the same are recorded in writing. 14. Further, it is also contended by the petitioner, in para 10 on page 8 of the Writ Petition, that while effecting translocation mode, it is pertinent to keep in mind that releasing the wild animal in W.P. (C) No.17521 of 2023 13 the same forest range and that too, in an area too close, could not be termed as translocation and it has to be kept in mind that the animal should be translocated to a forest range that is completely disconnected from the home range of the elephant, to ensure that the same will not come near the human settlement. In that regard, it has to be borne in mind that the petitioner has no factual case that the home area of the wild elephant is very close to the deep forest areas of Vellaimalai in Varashanadu Valley of Megamalai division, to which area translocation has been ordered or that the deep forest area of Vellaimalai is very close to human habitation. Hence, such contentions of the petitioner cannot be countenanced. 15. Further, the petitioner even critiques the earlier translocation of the wild tusker to Periyar tiger Reserve, which he claims is a nearby forest area and that the said measure did not fetch any meaningful solution, etc. Essentially, the petitioner is critiquing the translocation effected to Periyar Tiger Reserve, which was done pursuant to the orders of this Court in the previous litigative proceedings. It has to be borne in mind that the present incidents, which led to Ext.P-1, have happened after the migration of the wild tusker to the territorial limits of the State of Tamil Nadu. Hence, W.P. (C) No.17521 of 2023 14 there is no necessity for us to deal with the criticism made by the petitioner as regards the previous translocation effected within the State of Kerala. 16. In the instant case, the 7[th] respondent has ordered for, not merely the capture of the wild animal after tranquilisation, but thereafter, to translocate the wild tusker to the deeper forest areas of the forest division concerned of the State of Tamil Nadu. 17. So, a reading of Ext.P1 will make it clear that the decision taken by the 7[th] respondent, in terms of Ext.P1, appears to be intravires and cannot be said to be illegal or against the provisions of Sec.11 of the Wildlife (Protection) Act. 18. So also, there are no factual averments that the statutory and mandatory protocols and standards under the Wildlife Protection Act, 1972 and Rules and norms made thereunder has, in any manner, been violated by the 7[th] respondent (Chief Wildlife Warden of the State of Tamil Nadu) or any of the other officials concerned. Hence, we are not in a position to grant prayer No. I. 19. Further, it is also to be noted that the petitioner has not chosen to challenge the legality and _vires_ of Ext.P-1 order, and there is no prayer for quashment of Ext.P-1. W.P. (C) No.17521 of 2023 15 ## 20. Prayer No. II of the W.P(C) reads as follows : - _“II. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents to translocate and rehabilitate the bull tusker Arikomban to an alternate deep forest range that is completely disconnected from the home range by using scientific methods causing minimum trauma to the said animal in the event of tranquilizing the (sic) and capturing the same.”_ 21. As indicated above, the specific decision of the 7[th] respondent (Chief Wildlife Warden) is to capture and then translocate the wild tusker to the deeper forest areas of the Forest Division of the State of Tamil Nadu. The petitioner has no case that the action in that regard has been done by causing any unnecessary trauma or cruelty to the said animal by respondents 6 to 8. There is already a decision taken by the said respondent, in terms of Ext.P-1, to translocate the wild tusker to the wild premises of the forest division concerned of the State of Tamil Nadu. Hence, for all these reasons, there is no necessity for us to entertain and grant prayer No.II. ## 22. Prayer No.III reads as follows : - _“III. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 6 to 8 handover bull tusker Arikomban to respondents 3 to 5 and to translocate and rehabilitate the same in any of the forest divisions in Kerala.”_ 23. At the outset, it has to be noted that the petitioner has not sought any prayer for quashment of Ext.P-1 order. Further, there are no factual averments or legal grounds in support of such factual W.P. (C) No.17521 of 2023 16 averments that Ext.P-1 is illegal and _ultra vires_ and that it is to be quashed. The plea made in prayer No.III is that this Court, in exercise of its powers under Article 226 of the Constitution of India, by taking resort to this PIL proceedings, should issue a mandamus to direct respondents 6 to 8 (State of Tamil Nadu represented by the Chief Secretary, Principle CCF & Chief Wildlife Warden, Tamil Nadu and the Chief Conservator of Forest & Field Director concerned, etc.), to hand over the aforesaid wild tusker to respondents 3 to 5 (authorities of the State of Kerala) and to translocate and rehabilitate the said elephant in any of the forest divisions of Kerala. At the outset, it has to be noted that there are no averments in the W.P.(C) that the wild tusker should necessarily be brought back from the State of Tamil Nadu to the State of Kerala and that the authorities of the State of Kerala should translocate and rehabilitate in some other Forest division in the State of Kerala. That apart, no grounds are urged in the W.P(C) in support of any such plea, even if it is assumed for a moment that such factual averment has been made. 24. We specifically queried to Sri.Blaze K Jose, learned counsel appearing for the petitioner, as to the rationale and justification for prayer No.III. The petitioner claims to be not only a public spirited W.P. (C) No.17521 of 2023 17 person, but also is stated to be one of the leading industrialists in the State of Kerala and is also the President of a political party registered with the Election Commission of India. We specifically queried as to what public interest would be subserved by compelling the respondent (Tamil Nadu authorities) to bring back the wild tusker to the State of Kerala and to direct the State authorities of the State of Kerala to translocate it to some other forest regions in the State of Kerala. We could not get any satisfactory response from the learned counsel for the petitioner to our specific queries. 25. Further, it is also submitted by the Addl. Advocate General that the premise taken up by the petitioner, as if the wild tusker in question is domiciled to the State of Kerala is highly erroneous and untenable and is based on a complete misconception of law and that a wild animal, which comes within the ambit of the Wildlife (Protection) Act, cannot be attributed with any State-wide domicile or nativity. Further, it is also pointed out that the Apex Court in the decision in _**State of Telangana & Anr. v. B.Subba Rayudu & Ors.**_ [AIR 2022 SC 4373, para 59] has observed that even for Indian citizens, the concept based on State wise domicile is not recognised and that there is only one domicile of the country. W.P. (C) No.17521 of 2023 18 26. It has to be borne in mind that, going by the pleadings and materials on record, the 7[th] respondent (Chief Wildlife Warden of Tamil Nadu), who is the statutory authority, in terms of Sec.11, has exercised his discretion in terms of Ext.P-1 and has decided that the wild tusker should be captured and translocated to the deeper forest areas within the State of Tamil Nadu. There is no prayer to quash Ext.P-1 decision. In the light of these aspects, we fail to understand as to how the petitioner can make out such a prayer. No rationale is made out by the petitioner for justifying such a plea. There are no factual averments or legal grounds made out in that regard. Hence, there is no question of entertaining and granting prayer No.III. 27. Further, we are now apprised that the competent authority of the 1[st] respondent (Union Government) in the Ministry concerned has issued detailed norms, issuing human-elephant conflict litigation guidelines. We are also told that it is also reported that the Press Information Bureau of the Union Government has released the abovesaid guidelines dated 21.03.2023 on the same day in English language and in other vernacular language, including Malayalam language. In this regard, reference is made by them to the provisions contained in the Human-elephant Conflict Litigation Guidelines W.P. (C) No.17521 of 2023 19 dated 21.3.2023 issued by the 1[st] respondent Union Government, more particularly the first and second points appended to Clause 7.3 thereof. We specifically queried to the petitioner's counsel, as to whether the petitioner has perused the said guidelines. We also queried to the petitioner, as to what exactly is his expertise to venture into this Public Interest Litigation and to claim that his suggestions are far more superior than the one adopted by the 7[th] respondent (statutory authority), in terms of Ext.P-1. We could not get any satisfactory answers in that regard, except that he is a public spirited person, etc. True that, this Court has passed orders dated 23.03.2023, 05.04.2023, etc., in a PIL matter, when there were serious problems created in the State of Kerala. Those factual incidents are over. The present factual incidents, in support of the abovesaid prayers, are all in relation to factual incidents, which has happened after the migration of the wild tusker to the limits of the State of Tamil Nadu and thereafter. 28. Further, it is also pertinent to note the dictum laid down in a very recent verdict, rendered by a Five-Judge Constitution Bench of the Apex Court on 18.05.2023 in the case of _**Animal Welfare Board of India & Ors.** v._ _**Union of India & anr.**_ [Writ Petition W.P. (C) No.17521 of 2023 20 ## (Civil) No.23/2016, 2023 SCC OnLine SC 661], wherein it has been held, in para No.26, of the SCC Online report as follows : _**“Para 26.** On the question of conferring fundamental right on animals we do not have any precedent. The Division Bench in the case of_ _**A. Nagaraja** [(2014) 7 SCC 547] also does not lay down that animals have Fundamental Rights. The only tool available for testing this proposition is interpreting the three Amendment Acts on the anvil of reasonableness in Article 14 of the Constitution of India. While the protection under Article 21 has been conferred on person as opposed to a citizen, which is the case in Article 19 of the Constitution, we do not think it will be prudent for us to venture into a judicial adventurism to bring bulls within the said protected mechanism. We have our doubt as to whether detaining a stray bull from the street against its wish could give rise to the constitutional writ of habeas corpus or not. In the judgment of_ _**A. Nagaraja** (supra), the question of elevation of the statutory rights of animals to the realm of fundamental rights has been left at the advisory level or has been framed as a judicial suggestion. We do not want to venture beyond that and leave this exercise to be considered by the appropriate legislative body. We do not think Article 14 of the Constitution can also be invoked by any animal as a person. While we can test the provisions of an animal welfare legislation, that would be at the instance of a human being or a juridical person who may espouse the cause of animal welfare.”_ _(emphasis supplied)_ 29. It has been, inter alia, observed in the afore Constitution Bench verdict that, while the protection under Article 21 has been conferred on a person as opposed to a citizen, which is also the case in Article 19 of the Constitution, their Lordships of the Apex Court do not think it prudent for the Court to venture into a judicial adventurism to bring animals within the said protected mechanism and that, their Lordships have doubt as to whether detaining a straybull from the street against its wish, could give rise to a constitutional writ of habeas corpus or not. 30. During the course of the hearing we also queried to W.P. (C) No.17521 of 2023 21 Sri.Ashok M. Cherian, learned Additional Advocate General, appearing for the respondent-authorities of the State of Kerala, as to what is the stand of the State of Kerala, as regards prayer No.III and as to whether the competent authority of the State of Kerala and the Forest department of the State of Kerala wants the wild tusker, which is now ordered to be translocated to the wild recess of the forest of the State of Tamil Nadu, should be brougt back to the State of Kerala, in order to translocate it to the forest areas of the State of Kerala. 31. Sri.Ashok M. Cherian, learned Additional Advocate General, appearing for the respondent-State of Kerala, has submitted that he is instructed at the higher level of the State Government to submit that the State of Kerala is opposing the said prayer and that the said prayer of the writ petitoner is highly irresponsible, to say the least. We also queried to the learned Deputy Solicitor General of India as to the stand of the respondent-Union Government, as to prayer No.III and related aspects. The specific submission made on behalf of the respondent-Union of India is that the petitioner has not made out any case of illegality, unreasonableness or impropriety in the issuance of the well-considered decision taken by the 7[th] respondent-Chief Wildlife Warden, State of Tamil Nadu, in issuing Ext.P1 order and W.P. (C) No.17521 of 2023 22 that therefore, there is no question of the petitioner in maintaining any of the prayers, including prayer No.III, in the light of the factual averments and contention in this W.P.(C). 32. Thus, we fail to comprehend the rationale and justification for the petitioner for venturing into this litigative proceedings. Having regard to the facts and circumstances of the case, we refrain ourselves from imposing costs. 33. We have proceeded on the above premise to ascertain as to whether at least a prima facie cogent case is made out in this case, even if it is assumed that this Court can invoke writ jurisdiction against respondents 6 to 8 (authorities of the State of Tamil Nadu). If a prima facie case had been disclosed, then we could have entered into the other issue of territorial jurisdiction and issues emanating from the principles of _forum conveniens_ , comity of courts, etc. Now that we have come to the conclusion that no prima facie case is made out going by the averments in the petition, there is no necessity for us to get into the issues of territorial jurisdiction, _forum conveniens_ , comity of courts, etc. It is on this premise that we have considered the various aspects in this case and arrived at the abovesaid conclusion. None of the parties have raised such issues before us. If W.P. (C) No.17521 of 2023 23 later, the 7[th] respondent Chief Wild Life Warden, Tamil Nadu, is convinced that further recourse be made to any requisite lawful action in relation to the matters within his discretion, then we cannot presume that the said statutory authority would abdicate from his statutory functions or that he would act illegally. It is made clear that if a party, to subserve public interest, can convincingly establish that he or she has bona fide legally justiciable grievances in relation to the actions of respondents 6 to 8 (authorities of State of Tamil Nadu), etc., then this judgment will not preclude them from instituting appropriate writ proceedings before the Madras High Court for ventilation of such legally justiciable grievances and not imaginary grievances. The Registry will forward copies of this judgment to respondents 6 to 8 by speed post for necessary information. With these observations and directions, the Writ Petition (Civil) will stand dismissed. ## **Sd/ALEXANDER THOMAS, JUDGE** **Sd/C. JAYACHANDRAN, JUDGE** Skk W.P. (C) No.17521 of 2023 24 ## **APPENDIX OF WP(C) 17521/2023** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1** **A TRUE COPY OF THE ORDER NO.WL1/14072/2023 DATED 27.5.2023 OF THE 7TH RESPONDENT**