Thiruvambady Devaswom represented by its Secretary v. Principal Chief Conservator (Chief Wildlife Warden), Kerala Forests (Wildlife), Forest Headquarters, Vazuthacaud, Thiruvananthapuram; Divisional Forest Officer, Kodanad; Additional Principal Chief Forest Conservator (Biodiversity Cell), Forest-Wildlife Department, Forest Headquarters, Vazhuthacaud, Thiruvananthapuram; Range Officer, Thrissur Social Forest Range Office, Round, Thrissur

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 WP(C) NO. 27333 OF 2019`** ``` PETITIONER: ``` ``` THIRUVAMBADYDEVASWOM, ROUNDWEST,THRISSUR-680001, REPRESENTEDBYITSSECRETARY, PROF.M.MADHAVANKUTTY. ``` ## **`BY ADV N.MAHESH`** ``` RESPONDENTS: ``` - **`1 THE PRINCIPAL CHIEF CONSERVATOR(CHIEF WILD LIFE WARDEN), KERALA FORESTS (WILDLIFE), FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAUPRAM-695 006.`** - **`2 THE DIVISIONAL FOREST OFFICER, KODANAD, ERNAKULAM, PIN-683 544.`** - **`3 ADDITIONAL PRINCIPAL CHIEF FOREST CONSERVATOR (BIODIVERSITY CELL), FOREST-WILDLIFE DEPARTMENT, FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-14.`** - **`4 THE RANGE OFFICER, THRISSUR SOCIAL FOREST RANGE OFFICE, ROUND, THRISSUR-680 001.`** ## **`SRI.NAGARAJ NARAYAN, SPL GOVERNMENT PLEADER (FORESTS)`** ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON03.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` WP(C) No.27333 of 2019 2 ## **JUDGMENT** ## **Sophy Thomas, J** . Thiruvambady Devaswom represented by its Secretary, filed this writ petition seeking a writ of mandamus directing the 1[st] respondent to release the tusks of deceased elephant ‘Thiruvambady Unnikrishnan’ owned by the petitioner, and to issue a certificate of ownership as per Section 42 of the Wild Life Protection Act, 1972 (hereinafter referred as ‘the Act’). 2. The petitioner-Thiruvambady Devaswom is having captive elephants in their possession, and one of its elephants by name ‘Thiruvambady Unnikrishnan’ died on 01.04.2017. The 1[st] respondent-Principal Chief Conservator (Chief Wildlife Warden), had issued certificate of ownership of that elephant to the petiitoner, and a microchip also has been implanted in that elephant. On the death of that elephant, postmortem was conducted and its body was cremated under the supervision of respondents 2 and 3, the Divisional Forest Officer, Kodanad, and Additional Principal Chief Forest Conservator respectively. After preparing mahazar, the 4[th] respondent- Forest Range Officer took custody of the tusks, in violation of the provisions of Sections 40 to 42 of the Act, which clearly stipulates the procedure for filing WP(C) No.27333 of 2019 3 declaration certificate, and issuing certificate of ownership of animal trophy. Since the petitioner was not aware of the place where the tusks were kept by the 4[th] respondent, they were not in a position to file an application for declaration. But, they filed Ext.P5 representation before the 1[st] respondent on 04.04.2017, and the 3[rd] respondent-Additional Principal Chief Forest Conservator sent Ext.P6 reply stating that, due to security reasons, for the time being they cannot release the tusks. According to the petitioner, that reply is illegal and unjust, and hence they approached this Court with the above writ petition. 3. The 1[st] respondent-Principal Chief Conservator of Forest and Chief Wildlife Warden, filed counter affidavit admitting that, the petitioner-Thiruvambady Devaswom was in possession of the elephant named ‘Thiruvambady Unnikrishnan’, as per Ext.P1 ownership certificate No.33/90 dated 16.03.1990. It is also admitted that, the said elephant died on 01.04.2017 and its postmortem was conducted on 02.04.2017 at Elephant Cremation Ground, near Perumthodu Forest Station, Kodanad Range. The tusks of the elephant were separated and taken under safe custody by the Forest Department, as a precautionary and security measure, for preventing illegal wildlife trade of ivory. At present, WP(C) No.27333 of 2019 4 the tusks of the elephant are under the safe custody of the Kerala Forest Department. It is further admitted that, as per Section 42 of the Act, the Chief Wildlife Warden may, for the purpose of Section 40, issue a certificate of ownership, in such form, as may be prescribed, to any person who, in his opinion, is in lawful possession of any wild animal or any animal article, trophy and uncured trophy. It is also admitted that the petitioner requested the Chief Wildlife Warden, Kerala for the custody of the tusks, as per Ext.P5 letter dated 04.04.2017. But, since several crimes/offences relating to illegal trade of tusks of elephants were noticed at that time, including the infamous Malayattoor elephant poaching cases, the petitioner was informed as per Ext.P6 communication that, the tusks cannot be released for the time being, due to security reasons. Similar requests, from other elephant owners were also rejected temporarily, due to the above reason. Taking possession of the elephant tusks by the Forest Department, will not violate Sections 41 or 42 of the Act. The live animals including captive elephants, are classified as a separate category, distinct from animal article, trophy or uncured trophy, for the purpose of declaration, inventory and ownership envisaged under Sections 40 to 42 of the Act. As per Section 40(2) of the Act, WP(C) No.27333 of 2019 5 previous permission in writing of the Chief Wildlife Warden or the authorised officer, is necessary to acquire, receive or keep in control, custody or possession of the elephant tusks. The 1[st] respondent further contended that, sub section 2A and 2B of Section 40 of the Act does not apply to live elephants while it applies to animal article, trophy and uncured trophy. But, tusk is different from the live elephant and cannot be the subject of ownership, once separated from the live elephant, unless its ownership is acquired separately by inheritance. The certificate of ownership is given to the live elephant, and not for the tusk, which is a separate category of article under Sections 40 to 42 of the Act. After the death of the captive elephant, the ownership over the elephant ceases to exist, and such ownership certificate becomes null and void, and by default, the tusk becomes Government property. Since the tusk is considered as an animal article which is classified as a separate category, different from wild animal or live elephant, separate certificate of ownership is required under Section 42 of the Act, and it applies only to cases where the ivory as a separate animal article was owned by a person as on the relevant date under Section 40 of the Act, or inherited from another owner having certificate of ownership over the said ivory WP(C) No.27333 of 2019 6 as a separate piece, as on the relevant date. The certificate of ownership under Section 42 may be issued by the Chief Wildlife Warden, only if he is satisfied that the person is in lawful possession of the animal article. So, according to the 1[st] respondent, the reliefs sought in the writ petition are untenable and unsustainable, and hence the writ petition is liable to be dismissed. 4. Heard learned counsel for the petitioner and learned Special Government Pleader (Forest). 5. Admittedly, as per Ext.P1 ownership certificate issued by the Chief Wildlife Warden, the tusker named ‘Unnikrishnan’ was owned by Thiruvambady Devaswom, who is the petitioner herein. Ext.P2 certifies that, a microchip was implanted in that elephant. That elephant expired on 01.04.2017 and Ext.P3 postmortem certificate issued by the Forest Veterinary Officer, Konni certified its death. Ext.P4 is the mahazar prepared by the Range Officer (Social Forest), and after preparing the mahazar, the Forest Department took custody of the tusks. 6. Sub rule 6 of Rule 8 of the Kerala Captive Elephants (Management & 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 WP(C) No.27333 of 2019 7 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 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 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 WP(C) No.27333 of 2019 8 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 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 41 of the Act 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. 9. 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. WP(C) No.27333 of 2019 9 10. In the case on hand, the petitioner contended that, since they were not aware of the place where the tusks taken possession by the Forest Department were kept, they were not in a position to file an application for declaration as envisaged under Section 40 of the Act. But, on 04.04.2017, ie., on the third day of the death of the elephant Thiruvambady Unnikrishnan, the petitionerDevaswom filed Ext.P5 representation along with the records to prove its ownership. The 1[st] respondent, obviously, without conducting an enquiry as envisaged under Section 41 of the Act and Rule 10 of the Declaration of Wildlife Stock Rules, 2003, issued Ext.P6 letter to the petitioner stating that, for the time being, the tusks cannot be released to them, due to security reasons. Ext.P6 communication clearly shows that, no enquiry was conducted, and no final decision was taken on Ext.P5 representation. So, the 1[st] respondent has to take a final decision on Ext.P5 representation, in accordance with the procedure as envisaged under Sections 40 to 42 of the Act, and the Rules under the Declaration of Wildlife Stock Rules, 2003. 11. The prayer of the petitioner in this writ petition is to issue a writ of mandamus directing the 1[st] respondent to release the trophies in question, and also to issue a certificate of ownership in WP(C) No.27333 of 2019 10 view of Section 42 of the Act. 12. 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 or directions which are contrary to what has been injected by law. 13. No writ of mandamus can be issued directing the 1[st] respondent either to release the tusks of the deceased elephant Thiruvambady Unnikrishnan, or to grant a certificate of ownership, without the said respondent ascertaining the legality of the claim made by the petitioner in Ext.P5. Since Ext.P6 communication was issued by the 1[st] respondent without conducting any enquiry, wherein it is stated that, due to security reasons, the tusks cannot be released for the time being. The 1[st] respondent has to consider Ext.P5 representation and pass appropriate orders thereon, strictly in accordance with the provisions in the Act and Rules. 14. In the result, the 1[st] respondent is directed to consider Ext.P5 representation and pass appropriate orders thereon, stricly in accordance with the provisions in the Act and Rules as expeditiously as possible, at any rate, within a period of three WP(C) No.27333 of 2019 11 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 petitioner, and affording sufficient opportunity of hearing to the petitioner to substantiate their claim. With these directions, we dispose 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.27333 of 2019 12 ## **`APPENDIX OF WP(C) 27333/2019`** ## **`PETITIONER’S EXHIBITS :`** ``` EXHIBITP1TRUECOPYOFCERTIFICATEOFOWNERSHIPDATED 16.3.1990ISSUEDBYTHEI[ST]RESPONDENT. EXHIBITP2TRUECOPYOFCERTIFICATEDATED16.7.2007 ISSUEDBYTHEI[ST]RESPONDENT. ``` ``` EXHIBITP3TRUECOPYOFREPORTOFTHEPOSTMORTEMISSUED BYFORESTVETERINARYOFFICER,KONNI. ``` - **`TRUE COPY OF MAHAZAR DATED 1.4.2017 PREPARED`** - **`EXHIBIT P4 BY THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF REPRESENTATION DTD.4.4.2017 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.`** ``` TRUECOPYOFCOMMUNICATIONDATED18.5.2017 EXHIBITP6SENTBYTHE3RDRESPONDENT. ``` ## **`RESPONDENTS’ EXHIBITS:`** ``` EXHIBITR1(A)TRUECOPYOFLETTERNOBDC2-718/13DATED 16.9.2017OFADDITIONALPCCF(BIODIVERSITY CELL) ```