Thursday, April 25, 2024

Kerala High Court dismisses PIL challenging order by Principal Chief Conservator granting permission to drive Makhna elephant back to forest

The Kerala High Court  dismissed a Public Interest Litigation (PIL) filed  challenging order of the Principal Chief Conservator (Wildlife) & Chief Wildlife Warden, Kerala/1st respondent, issued in exercise of the power under section 11(1)(a) of the Wild Life (Protection) Act, 1972 , granting permission to drive a Makhna elephant on the rampage back to the forest safely using Kumki elephants, following all the existing guidelines of the Ministry of Environment Forest and Climate Change (MoEF&CC) and the standard operating procedure and failing which, to capture the said elephant by drug shooting or chemical tranquilisation.

Along with various other prayers, the petitioner has sought a direction to the respondents/officers of the Forest Department to stop chasing the elephant, since it has already entered deep forest.  

The Petition is filed by a trust, the objective of which is to adopt, rescue, treat, and feed stray animals and provide legal assistance in activities involving any kind of animal cruelty.  

When a specific question was asked by the High Court to the counsel for the petitioner as to the basis on which the allegation that the elephant is being chased inside the forest and that attempts are being made to tranquilise the elephant, he failed to bring to the notice of the Court any evidence to substantiate the allegation. Instead, the counsel submitted that the elephant may die if it is tranquilised and captured by Forest officials and not released thereafter. In support of this submission, the  counsel relied upon certain past incidents. He, therefore, submitted that appropriate orders may be passed.  

On the other hand, Special Government Pleader appearing for the Forest Department would submit that the very same issue is pending before another Division Bench of the Court in Petition of 2021 and therein an order has been passed on 19.02.2024, containing certain directions and observations as to the manner in which the issue is to be dealt with. 

He submitted that in the said proceeding, the petitioner herein has joined as additional respondent No.55. Therefore, the petitioner ought to have informed the Division Bench about the filing of the  petition. He  further submitted that the suggestions of the Division Bench are being seriously considered by the respondent Department. Apart from these aspects, he  submitted that the Makhna elephant came from the Karnataka Forest and, after roaming around inside the Kerala border, had killed a native of Wayanad. The incident gave rise to large scale protest and  order under Section 11 (1) of the 1972 Act was passed by the 1st respondent after considering all relevant aspects. He  submitted that this is a premature petition since the elephant is neither captured nor tranquilised by the Forest Department. He submitted that the elephant is presently in the forest shared by two States;   Kerala and Karnataka and if  order is quashed, that may result in more human lives being put to danger. He submitted that the Chief Conservator has only directed to drive the elephant into the forest and if that is not possible, to capture the elephant by drug shooting or chemical tranquilisation. Therefore, he would submit that the petition ought to be dismissed.

The Division Bench of Chief Justice A J Desai and Justice V.G. Arun noted that the Principal Chief Conservator, who is also the Chief Wildlife Warden, Kerala, has directed the officers to first drive the elephant back to the forest, following the guidelines issued by the MoEF&CC, and failing which only to capture the said elephant by drug shooting or chemical tranquilisation. It is not only the case of the respondent but also that of the petitioner that the elephant has now been driven into the deep forest. Admittedly, there is no material to show that, in spite of being driven into the deep forest, the forest officials are chasing the elephant with the intention to capture it by drug shooting or chemical tranquilisation. 

The Court noted that the borders of three States, viz., Kerala, Tamil Nadu and Karnataka, have deep forests, and a large number of elephants are roaming around in the forest. The Makhna elephant, which had attacked and killed a person, is being tracked by the officers using a radio-collar fitted on it. If the elephant enters the territory of the State of Kerala again, the Forest officers are supposed to follow the order passed by the Chief Conservator to drive the elephant into the deep forest and if that is not possible, to capture the elephant by drug shooting or chemical tranquilisation. We cannot presume that if the elephant is captured, it will not be released and may die in captivity.

Hence, the Court opined that the order passed by the Chief Wildlife Warden is absolutely in accordance with law, by giving due care for the well-being of the animal and keeping in mind the lives of persons residing in forest area. 

The Court also noted that  the authorities are following the directions issued by the Division Bench of 2021, for taking appropriate care to prevent attacks by elephants in future.


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