High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2009CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMANDTHE HONOURABLE MR. JUSTICE M.DURAISWAMYWrit Petition No.2325 of 2009and M.P.No.1 of 2009In Defence of Environment and AnimalsRep. By its Managing TrusteeElephant G.RajendranNo.24/51 South Usman RoadT.Nagar, Chennai – 600 017 ... Petitioner Vs.1. The Principle Chief Conservator of Forest Panagal Building, Saidapet, Chennai – 152. The Commissioner, Hindu Religious and Charitable Endowment, Nungambakkam, Chennai – 600 0343. The Wile Life Warden, Mudumalai Sanctuary, Ooty, Nilgiri – Dt.... RespondentsWrit Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of mandamus directing therespondents not to send any ailing domestic elephant to the elephantcamp at Mudumalai or to any other elephant camp in any hill forestarea in the State of Tamil Nadu.For Petitioner : Mr. Elephant G.RajendranFor Respondents: Mr. T.Chandrasekaran, Spl. G.P., for H.R. & C.E., for R-2 Mr. S.N.Kribanandam, Spl. G.P., (F), for R-1 & R-3.-----O R D E R(Order of the Court was made by K.Mohan Ram, J.,)With consent of the learned counsel on either side, the writpetition itself is taken up for final disposal. https://hcservices.ecourts.gov.in/hcservices/

2. The above writ petition has been filed seeking for the issueof a writ of mandamus directing the respondents not to send anyailing domestic elephant to the elephant camp at Mudumalai or to anyother elephant camp in any hill forest area in the State of TamilNadu.3. The above writ petition has been filed as a Public InterestLitigation. As per the averments contained in the affidavit filedin support of the writ petition, one elephant by name-Andal wasbrought to Theppakkadu Elephant Camp from Madurai Kallalagar Templefor treatment on 28.01.2009. According to the petitioner, the ageof the elephant is 27 years and it has some physical problem. Thepetitioner suspected that the elephant might be infected with TBdisease but the Camp Doctor has refused to give any details aboutthe real physical condition of the elephant. According to thepetitioner, there are three types of elephants, (i) DomesticElephant, (ii) Captive Elephant, and (iii) Wild Elephant. Thedomestic elephants are mostly available in the Hindu Temples as areligious custom and with some private persons. The captiveelephants are housed in the elephant camps managed by the forestdepartment officials. The wild elephants are those elephants livingin the forest. According to the petitioner, the wild elephants areall free from diseases like TB and if the domestic elephantsaffected with disease like TB are taken to the Elephant Camps thereis every chance of TB being spread to other wild elephants in theforest; to avoid spreading of such diseases, it is advisable tokeep the domestic animals affected with the diseases in the plainsitself and treat them there. It is the further case of thepetitioner that it will be a great ordeal to the concerned elephant,if it is to be transported to the height of 7000 feet and thendriving them down to another 5000 feet; the petitioner has encloseda certificate issued by one Dr.Ilona Ottar of Finland. In the saidcertificate, he has certified as under:-"Animals and humans get infected by M.tuberculosis whenthey inhale the mycobacterium. This usually occurs whensomeone with active tuberculosis of the lungs coughs,causing the release of thousands of bacteria into the airaround them. People or animals breathing the same air forprolonged periods are likely to inhale the bacteria. Thetuberculosis germ is carried on droplets in the air, andcan enter the body through the airway. An animal or aperson with active pulmoney tuberculosis can spread thedisease by coughing or sneezing to other animals and orpeople.What are the symptoms of tuberculosis?Patients with tuberculosis of the lungs have a prolongedillness with fever, cough, night-sweats, weight loss andmay occasionally cough up blood. As the disease https://hcservices.ecourts.gov.in/hcservices/ progresses, symptoms get worse and shortness of breathensues. Untreated disease can be fatal.Tuberculosis is an infectious disease that is transmittedby air droplets to other animals/people."4. It is further stated in the affidavit that the forestdepartment has allowed this elephant into the dense forest withoutconsidering the health of 1000's of wild elephants. It is furtherstated that the petitioner understands that one elephant namedRajeswari of Sugavaneshwarar Temple at Salem was also affected bythe same disease i.e., TB and the same was sent to Kurumpatti Zoonear Salem for treatment and it is further stated in the affidavitthat some more diseased elephants from Samayapuram Mariamman Temple,Swamimalai Murugan Temple and an elephant from Nagerkoil are also tobe transported to the Theppakkadu Elephant Camp for treatmentshortly.5. According to the petitioner, bringing of the diseasedelephants to the dense forest for treatment is dangerous to wildanimals. In these circumstances only, the aforesaid relief has beensought for in the writ petition.6. The first respondent has filed a detailed counter affidaviton his behalf as well as the third respondent.7. In the counter affidavit it is stated that as per theGovernment Orders in G.O.(D) No.35, Hindu Religious and CharitableEndowment Department, dated 15.12.2008 and subsequent instructionsissued by the Principal Chief Conservator of Forests and ChiefWildlife Warden in No.WL1/10330/2008 dated 05.01.2009, one templeFemale Elephant namely 'Andal' has been transported from ArulmighuKallalagar Koil, Madurai, to Theppakkadu Elephant Camp in MudumalaiTiger Reserve on 20.01.2009. The Conservator of Forests and FieldDirector, Ooty had issued suitable instructions to the ForestVeterinary Assistant Surgeon, Theppakkadu, to conduct thoroughhealth check up with a Team of Doctors. In the meantime, the ForestRanger, Mudumalai Range, has been asked to keep this elephant intotal isolation to avoid any kind of incidents till it is declaredhealthy or disease free and the elephant is also to be got screenedby the Senior Advisor, Elephant Tuberculosis Project, Asian ElephantResearch and Conservation Centre, against tuberculosis.8. It is further stated in the counter affidavit that theelephant is aged 58 years and not 27 years as claimed by thepetitioner; the biological samples like urine, dung, whole bloodand blood smear was collected by a team of doctor from 'Project onHealth Assessment of Captive Asian Elephants', Asian ElephantResearch Conservation Center, CES, Indian Institute of Science,Bangalore – 560 012, for the laboratory analysis. The serum also https://hcservices.ecourts.gov.in/hcservices/ was collected and performed rapid serum test (Elephant TB STAT PAK).This elephant showed positive antibody response to tuberculosisinfection either to M.tuberculosis or M.bovis. The required andappropriate veterinary and management intervention has been started.It is further stated that to prevent the spread of any infectiousdisease from Andal, a captive elephant, from the day of arrival thiselephant is being kept in isolation as a quarantine measures atThorapallay Check Post, in the Southern Boundary of the reserve;the elephant - Andal is not housed along with captive elephants inMudumalai. In the counter affidavit the view of Dr.Ilona Ottar ofFinland about tuberculosis has been accepted as true. In paragraph16 of the counter affidavit it has been specifically stated thatthere is no proposal with the Forest Department to send the ailingdomestic animal to Mudumalai for treatment now.9. It is further stated in the counter affidavit that aproposal for setting up of the elephant rehabilitation and rescuecentre in Mettupalayam Range of Coimbatore Forest Division forunlicensed, old, diseased and incapacitated temple / private /rescued elephants, with an estimate of Rs.1,17,72,000/- (one croreseventeen lakhs seventy two thousand only) has already sent toGovernment by the Principal Chief Conservator of Forests and ChiefWildlife Warden vide Ref.No.WL1/6140/2006 dated 02.02.2006. In thetenth meeting of steering of committee held on 18.07.2006, theGovernment of India has committed to fund the maintenance of rescuecentre. Further, details required by the Government have been sentto Government. The proposal is under examination of the Government.The Principal Chief Conservator of Forests and Chief Wildlife Wardenhas requested the Government to send the proposal to Government ofIndia for necessary sanction. After the establishment of theproposed elephant rehabilitation rescue centre, Mettupalayam inCoimbatore Division, the aged, diseased and other elephants will besent to the rescue centre. 10. The second respondent has filed a separate counteraffidavit. In paragraph 9 of the counter affidavit filed by thesecond respondent it is stated that before transporting, theelephant was thoroughly checked by the Doctor and the Doctor hascertified that the health condition of the elephant – Andal as good;hence the apprehension of the petitioner is unwarranted and false.In paragraph 12 of the counter affidavit it is stated that theGovernment has permitted to entrust the following elephants to theForest Department, namely:- https://hcservices.ecourts.gov.in/hcservices/ Sl. No.Name of ElephantName of Temple1.MariappanArulmighu Mariamman Temple,Samayapuram, Trichy District2. AndalArulmighu Kallalagar Temple,Azhagar Koil, Madurai District3.GopalanArulmighu Dhanumalayan TempleSuchindram, Kanyakumari District4.RajeswariArulmighu Sugavaneswarar Temple,Salem Taluk and District11. In paragraph 13 of the counter affidavit filed by thesecond respondent it is stated that the proposed transfer ofmentally ailing elephants is in the best interest of the elephantsand avoid any untoward incidents towards devotees and generalpublic; it will bring a change to the ailing elephants, which areusually kept chained in a shed in the temple premises most of thetime; temperate climate and lush vegetation in the area where thecamp is situated make an ideal environment for elephants. It isfurther stated that only taking into consideration all the relevantfactors the transportation of ailing elephants was ordered and apartfrom Elephant Andal of Alagarkoil, the other three elephants are yetto be handed over to the Forest Department as per the order of theGovernment. According to the second respondent, the entrustment ofelephants with Forest Department is only in the interest of wildlifeand public interest. On the aforesaid contentions, the secondrespondent seeks dismissal of the writ petition.12. Heard the learned counsel on either side.13. Learned counsel appearing for the petitioner has produced acommunication dated 09.02.2009 sent by Dr.Jacob V. Cheeran to Dr.N.Kalaivanan, Forest Veterinary Assistant Surgeon, Mudumalai TigerReserve, Theppakkadu, Nilgiris. In the said communication it isstated as under:-"In response to your request, I sent Dr. David Abraham toperform the rapid serum test (Elephant TB STAT-PAK) on thetemple elephant Andal (female, - 55 years old). As perattached result, Dr. David has reported that the elephantshowed positive antibody response to tuberculosisinfection either by M.tuberculosis or M.bovis. This rapidserum test can detect tuberculosis in the early stages.Our own study (please find attached report) has shown thattemple elephants have higher prevalence of tuberculosisinfection compared to other elephants. Captive elephants,especially those maintained in temples, are likely tosuffer from various other diseases, many of which have https://hcservices.ecourts.gov.in/hcservices/ zonotic importance. Unless temple elephants are subjectedto strict clinical examination and laboratory tests tomake sure that they are free from any disease, they caninfect the healthy camp elephants. The camp elephantswhen let loose in the forest can spill such diseases tofree-ranging wildlife. Hence, internationally approvedprotocols (IUCN) should be followed to protect free-ranging wildlife from major diseases".14. According to the learned counsel for the petitioner, aperusal of the contents of the said communication shows that theelephant - Andal is suffering from tuberculosis and it can infectthe healthy camp elephants. It is further stated therein that thecamp elephants when let loose in the forest can spill such diseasesto free-ranging wildlife and hence, internationally approvedprotocols (IUCN) should be followed to protect free-ranging wildlifefrom major diseases. Learned counsel further submitted that in thelight of this communication the averments made by the secondrespondent in its counter affidavit to the effect that the elephantAndal was checked before the transportation and it was found to behealthy, is incorrect.15. Learned counsel for the petitioner has also submitted acopy of the report of Asian Elephant Research and ConservationCentre (AERCC), Innovation Centre, Indian Institute of Science,Bangalore – 12. In this report, it has been stated thattranslocation of non-forest camp elephants to forest camps may benot serve the purpose of improving welfare of such elephants in thelong term and reasons for arriving such a conclusion has also beenstated in the report. The following are the reasons statedtherein:-" * Such elephants are provided stall feed primarily intheir previous locations, with most elephants also beinghabituated to unnatural foods such as bread / offeringsfrom temple / passers-by; thus, such animals are notexperienced in browsing / grazing / chewing of unexposedfood such as uncut fodder / branches / tree bark.* In this context, learning to graze / browse is integralto their survival, as they cannot survive only on forestbased foods. Forest camp elephants are allowed to graze /browse in surrounding forests with stall feed acting onlyas a supplement to the predominantly free-ranging feedingof such animals. Lack of nutrition may result as aconsequence of absence of an ability to adapt to grazing /browsing resultant health problems among non-forest campelephants.* Introduction of new elephants into an alreadyestablished social order among FC elephants may causeproblems for the new member/s. The new animals have to be https://hcservices.ecourts.gov.in/hcservices/ accepted by the camp elephants / other wild elephants.There are instances of such elephants being attackedseverely by wild / forest camp elephants. Such attackscould be fatal / very painful / injuries may take a longtime to heal / animal may develop a fear of venturing outon its own / it may be psychologically damaging.* Such elephants are also exposed to new mahouts / new setof daily schedules which needs to be learnt with a newhandler. This could be a source of stress to theelephant.* The damage to the forest from cut fodder collection,diversity loss, loss of food species for other animals,wastage of fodder when the elephant is not able to eat it,leading to accumulation of fodder, decay and decompositionin the same site if hygiene is not maintained".and some instances have been mentioned in the report in support ofthe conclusions reached.16. Basing reliance on the aforesaid report, the learnedcounsel for the petitioner submitted that it is not advisable tokeep the elephant – Andal in the camp but it is advisable to bringit back to the plains and to treat the same by keeping the elephantin the Zoo at Kurumpatti, Salem. Learned counsel further submittedthat the petitioner is possessing necessary drugs and injections totreat tuberculosis affected elephants and he is willing to supplythe same free of cost for treating the female elephant – Andal ifthe elephant is brought and kept at Kurumpatti Zoo, Salem. Hefurther submitted that in the light of the difficulty expressed bythe learned counsel for respondents 1 and 3 in re-transporting theelephant – Andal from the Theppakkadu Elephant Camp to the plainsthe learned counsel undertook to bear the expenses involved in re-transporting the elephant if the respondents are willing to re-transport the elephant to the Kurumpatti Zoo, Salem. He furthersubmitted that the elephant need not be transported at a stretchfrom the Theppakkadu Elephant Camp to Kurumpatti Zoo, Salem, butinstead the elephant can be given rest at regular intervals and evensuch rest is given it may not take more than three days. He fairlysubmitted that all the expenses incurred for such re-transportationwill be borne by him. He also submitted that the transportation andtreatment of the elephant can be done under the direct supervisionof the Forest Department Officials.17. Learned counsel for respondents 1 and 3 as well as thesecond respondent expressed only the difficulty in re-transportingthe elephant – Andal from the Theppakkadu Elephant Camp toKurumpatti Zoo, Salem. They also submitted that proper care isbeing taken at Theppakkadu Elephant Camp and there is no need totransport the elephant to the plains, but the learned counsel areunable to repel the contentions put forth by the learned counsel for https://hcservices.ecourts.gov.in/hcservices/ the petitioner based on the communication sent by Dr.Jacob V.Cheeran to Dr. N.Kalaivanan, Forest Veterinary Assistant Surgeon,Mudumalai Tiger Reserve, Theppakkadu, Nilgiris as well as the reportof the Asian Elephant Research and Conservation Centre (AERCC),Innovation Centre, Indian Institute of Science, Bangalore – 12.18. We have considered the aforesaid submissions made by thelearned counsel on either side.19. The submissions made by the learned counsel for thepetitioner which are fully supported by the aforesaid materialsplaced by him before this Court merits acceptance. It is seen fromthe report of the Asian Elephant Research and Conservation Centre(AERCC), Innovation Centre, Indian Institute of Science, Bangalore –12 that temple elephants of Tamil Nadu which were brought intoforest camps suffered and five such instances have been narrated inthe report, which reads as under:-"a. Swaminathan from Swamimalai temple was not grazing dueto his inexperience, cut fodder provided was noteffective, died following E.Coli infection.b. Nataraj, in Pollachi, Annamalai, was attacked by a FCelephant, Lakshman, was not able to run when chased byLakshman.c. Thayalnayaki, from temple, died following TB infection,infected four Forest camp elephants.d. Senthilvadivelu, from Thiruvannamalai temple, not ableto graze, became physically weak.e. Ganesh, from Padalieswaran temple, not exposed tograzing, was severely emaciated."The aforesaid facts mentioned in the report are not controverted ordisputed by the respondents. When admittedly as is evident from thecommunication dated 09.02.2009 sent by Dr.Jacob V. Cheeran to Dr.N.Kalaivanan, Forest Veterinary Assistant Surgeon, Mudumalai TigerReserve, Theppakkadu, Nilgiris, the elephant - Andal is sufferingfrom tuberculosis disease and the tuberculosis germ is carried ondroplets in the air, and can enter the body through the airway andan animal or a person with active pulmoney tuberculosis can spreadthe disease to other animals and or people by coughing or sneezing.The above is evident from the certificate issued by Dr.Ilona Otter,DVM, Veteriary Consultant, Indian Project for Animals and Nature(IPAN). Therefore when such scientific materials are available,which supports the contention of the petitioner, we are inclined toentertain the above writ petition and grant the relief sought for.20. Accordingly the following order is passed:-The undertaking given by the respondents 1 and 3 in theircounter affidavit in paragraph 16 which reads as under:-'16) It is respectfully submitted that as regards para 12of the affidavit, there is no proposal with the Forest https://hcservices.ecourts.gov.in/hcservices/ Department to send ailing domestic animal to Mudumalai fortreatment now.'is recorded and hence no specific direction need be issued as prayedfor in the writ petition.21. As far as the female elephant – Andal is concerned, thesame shall be re-transported to plains and kept at the Zoo locatedat Kurumpatti at the cost of the petitioner herein but under thedirect control and supervision of the Forest Department officials.The respondents 1 and 3 shall workout the cost of re-transportationand intimate the same to the writ petitioner to enable him todeposit the same in advance. Further the said elephant shall betreated for tuberculosis by a trained veterinary Doctor and ifnecessary the concerned Doctor can avail the offer made by the writpetitioner and utilise the drugs and injections that may be providedby him for treating the elephant. While re-transporting theelephant from Theppakkadu Elephant Camp to Kurumpatti Zoo, Salem,the animal need not be brought at a stretch but necessary rest maybe given to the animal at regular intervals and on an each day thevehicle transporting the elephant 'Andal' may not travel more than75 kms and such transportation shall also be under the directcontrol and supervision of the officials of the Forest Department.The writ petitioner may be permitted to bring specialised VeterinaryDoctors from abroad to treat the animal if necessary and therespondents shall co-operate with the writ petitioner in thatregard.22. With the above directions, the writ petition is disposedof. No costs. Consequently the connected MP is closed.SrkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Principle Chief Conservator of Forest Panagal Building, Saidapet, Chennai – 152. The Commissioner, Hindu Religious and Charitable Endowment, Nungambakkam, Chennai – 600 034 https://hcservices.ecourts.gov.in/hcservices/

3. The Wile Life Warden, Mudumalai Sanctuary, Ooty, Nilgiri.•2 ccs to Mr. Elephant Rajendran, Advocate SR No.19821•4 ccs to Government Pleader CCSR 20506, 20277, 20018, 19972 •MBS(CO)•SR/5.5.2009Writ Petition No.2325 of 2009& M.P.No.1 of 2009