Dismissed

Nitin Singhvi v. Union Of India

Chhattisgarh HC18 Aug 2017WPPIL/6/2016

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh, accepting a veterinary expert's report that elephant 'Sonu' is fit for release, deferred the final decision on his rehabilitation to forest officials. The Court emphasized ecological justice, held the State bound by Art. 48A and 51A(g) to protect wildlife, and directed the Government to finalize an Elephant Rescue Centre plan to prevent future conflicts.

What did the court decide?

Writ petition dismissed with directions to the State Government to expedite the master plan for an Elephant Rescue Centre at Pingla.

Nitin Singhvi Vs Union Of India — Pension and Retirement Benefits | Chhattisgarh HC (2017)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Writ Petition (PIL) No. 6 of 2016

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Nitin Singhvi S/o Late N.C. Singhvi, Aged About 54 Years R/o HIG-3 Sect -3 Shanker Nagar Raipur, Dist. Raipur, Chhattisgarh.

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---- Petitioner

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Versus

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Union of India Through : Secretary, Ministry Of Environment & Forest, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi.

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State Of Chhattisgarh, Through : Secretary, Forest Department, Mahanadi Bhawan, Raipur, Chhattisgarh.

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Principal Chief Conservator Of Forest (Wildlife), Chhattisgarh, Aranya Bhawan, Medical College Road, Raipur, Chhattisgarh.

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Chief Conservator Of Forest (Wildlife) Chhattisgarh.

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Project Director- Achanakmaar Tiger Reserve Bilaspur, Dist- Bilaspur (Chhattisgarh)

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Animal Welfare Board Of India, Through Its Chairman, Ministry Of Environment, Forest And Climate Change, Govt. Of India, 13/1, Third Seaward Road, Valmiki Nagar, Thiruvanmiyhur, Chennai.

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---- Respondents

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For Petitioner For UOI For State

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: Shri Saurabh Dangi, Advocate : Shri N.K. Vyas, Assistant Solicitor General : Shri U.N.S. Deo, Government Advocate

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Hon'ble Shri Thottathil B. Radhakrishnan, Chief Justice Hon'ble Shri Sharad Kumar Gupta, Judge

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Order On Board

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Per Thottathil B. Radhakrishnan, Chief Justice

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18/08/2017

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This writ petition was filed as a public interest litigation in January, 2016 highlighting the then unfortunate situation of a wild caught elephant which is now at the Achanakmar Tiger Reserve, Bilaspur, essentially under the

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control of the Forest Department officials. The plea was that the said elephant who has, by now, earned the pet name 'Sonu', should not be perennially kept in captivity leading to its domestication, but should be permitted to live in the wild, in its choice.

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We have heard the learned counsel for the petitioner, the learned Assistant Solicitor General and the learned counsel for the State.

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A perusal of the different earlier orders in this Writ Petition would show that the elephant 'Sonu' stood accused of having killed five persons and injured another and of having also damaged homesteads and crops. This was the premise on which he was brought under captivity to resolve the humananimal conflict. The involvement of the Animal Welfare Board of India and the authorities of the Wildlife Department of the State of Chhattisgarh, including those having control over the reserve forest and sanctuaries, ultimately led this Court to issue requisite directions for medical examination, treatment and rehabilitation of 'Sonu'. During the course of this exercise, at one stage it was brought to the notice of this Court that the situation has become congenial for the safe release of 'Sonu' free into the forest, to have its own way. For various reasons minuted in the proceedings, it was then ordered that it would not be appropriate to let 'Sonu' out of captivity at that point of time. With the passage of time when the matter was considered on 03.07.2017 i.e. nearly 1½ years after the institution of this Writ Petition, an order was minuted to pave way for reassessment of the health status of 'Sonu', to consider whether he should be released free from human control, into the wild. The relevant portion of that order reads as follows:-

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“We have seen the different materials and also the various orders issued in this case. Primarily this matter relates to the condition of an elephant in relation to which the Animal Welfare Board of India (hereinafter 'AWBI' ) has issued a report following

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the inspection dated 31.01.2016. The recommendations made at paragraph VII in that report contains, among other things, the proposal that AWBI may advise the Principal Chief Conservator of Forest and the Chief Wild Life Warden (PCCF & CWLW), Chhattisgarh that once the wounds are healed and the elephant is physically fit for travel as certified by an experienced elephant veterinarian, he should be immediately rehabilitated to a pre-identified natural habitat which is home for wild elephants.

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The matter is predominantly within the domain of those who have the expertise to assess whether a particular elephant could be released to such wild habitat. Hence, having in mind the different orders issued by this Court we request Dr. Rajeev TS, then Assistant Professor and Project Leader, Centre for Studies on Elephant, College of Veterinary and Animal Sciences, Mannuthy, Thrissur, Kerala to inspect the elephant in relation to which the earlier inspection was conducted on 31.01.2016 to ascertain whether it is appropriate now to rehabilitate the said elephant at any preidentified natural habitat. We hope to get a report in this regard from Dr. Rajeev TS within a period of three weeks from today. The State of Chhattisgarh will provide him Business Class plane transit as also other perks and expenditures as would be available to Class-I Officers. Requisite action in this regard shall be taken by the competent among the Respondents immediately. The Registry will forthwith communicate this order to Dr. Rajeev TS through fax and email.

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The Learned Counsel for the Petitioner and the learned Counsel appearing for AWBI will provide the Registry with the requisite details for transmitting the information through Fax and email. Let this be done immediately.”

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In conformity with the aforequoted order, Dr. Rajeev TS, Assistant Professor

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and Project Leader, Centre for Elephant Studies, College of Veterinary and Animal Sciences, Mannuthy, Kerala, Veterinary and Animal Sciences University, conducted an inspection. The authorised inspector, Dr. Rajeev TS, has made a comprehensive assessment of the wild caught elephant 'Sonu' on 12^th July, 2017 in presence of the Deputy Director, Achanakmar Tiger Reserve. Dr. Rakesh Chittora, Senior Veterinary Trainer, Animal Rahat, assisted Dr. Rajeev TS, as requested by the Deputy Director,

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Achanakmar Tiger Reserve. We have studied the report of Dr. Rajeev TS, who apart from being one who possesses Master's Degree in Veterinary Science (MVSc) and PhD, holds PGd in Wildlife Medicine. We see that his expertise has been utilized to appropriately assess the various factors relating to 'Sonu' comprehensively. We are satisfied that the physical status, behavioural pattern, welfare, wellbeing and longevity of that particular elephant have been duly assessed in a scientific manner. We accept the Report of Dr. Rajeev TS made by him following his inspection on 12th July, 2017 and forwarded to the Registrar of this Court along with his covering letter dated 21.07.2017. That Report with covering letter is taken on file and will stand incorporated in the records of this case.

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One thing is certain, there was apparent neglect in relation to the affairs of 'Sonu', particularly his health, wellbeing, treatment to the injuries, etc. It was, therefore, that the petitioner had taken up responsibility to institute this public interest litigation, lest which, we doubt whether the elephant 'Sonu' would have been in the manner and shape in which he is now. We therefore, place on record our appreciation for the efforts taken by the petitioner in highlighting the grievances relatable to 'Sonu', which could not have invoked any provision of the Constitution and the laws to seek relief from any Court. His behavioral pattern was the best reflection of his grievances and remedy lies in appropriately taking care of that pachyderm in the place, circumstances and company in which he is now.

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Having accepted the aforenoted Report of Dr. Rajeev TS, we have to leave it to the wisdom of those who manages the affairs of the forest and forest dwelling animals in the State of Chhattisgarh to appropriately deal, from time to time, with all aspects related to 'Sonu' including whether he should be released or forced to go out of his present habitat and company at any point of time. We state this in the light of the fact that the best persons to assess

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the situation would be the officers in command of such matters in the Government and because we expect them to zealously discharge their duties and responsibilities in this regard.

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We place on record the abundant support given by Dr. Rajeev TS, not merely as a person who has assessed 'Sonu' on different occasions but also intervened and provided adequate medical advise to take care of 'Sonu' and get him cured from the state he was, way back in early 2016. The able guidance of Dr. Rajeev TS and the committed and the dedicated work of all those who were involved from the Animal Welfare Board of India and the Forest and Wildlife Department of the Government of Chhattisgarh have supported the cause of 'Sonu'. That has to be reckoned and noted as an example by all those who deal with animal life, particularly in the wild. The officers of the wildlife sector as well as the veterinary and the animal welfare sector in the State of Chhattisgarh who have contributed their might to the care of 'Sonu' also needs to be complimented for the efforts taken by them in terms of the advise rendered by Dr. Rajeev T.S.

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A fairly holistic understanding of the situationally relevant concepts of the Indian Constitution which is the basic law relating to the governance of this country is contextually apposite. The late revered Justice H.R.Khanna said:

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"If the Indian Constitution is our heritage bequeathed to us by our Founding Fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions. A Constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis its only keepers are the people."

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(See: Making of India's Constitution - H.R.Khanna, Second Edition)

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Bearing the aforesaid in mind, we proceed to assimilate certain situationally relevant constitutional provisions.

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Article 48A was inserted in the Constitution as per its Forty-second Amendment, among the Directive Principles of the State Policy. It provides for endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. That one Article takes within its sweep the environment, forests and wildlife in one go. The dual goal is to protect and improve those three components. Dilating on this indefeasible constitutional doctrine, the Constitution Bench of the Supreme Court held that the three subjects namely, environment, forests and wildlife have been dealt with in one Article i.e. Article 48A , for the simple reason that the three are interrelated. Protection and improvement of environment is necessary for safeguarding forests and wildlife, which in turn protects and improves the environment. Forests and wildlife are clearly inter-related and interdependent. They protect each other. See: State of Gujarat v. Mirzapur Moti Kuresh Kassab Jamat; (2005) 8 SCC 534.

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Article 51A inserted in the Constitution alongwith Article 48A, through Fortysecond Amendment, enumerates the Fundamental Duties of every citizen of India. They are part of the Constitution. Hence, they are constitutional duties. They include the duty to abide by the Constitution and respect its ideals and institutions. [See Article 51A(a)]. Discharge of Fundamental Duties is the constitutional obligation and duty of every citizen including any citizen appointed to public services and posts in connection with the affairs of the Union or of any State. To the extent that would be contextually relevant to a situation, Fundamental Duties add on to the statutory or public duties of any citizen in authority and service, as well as any other citizen obliged to discharge statutory or public duties.

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Clause (g) of Article 51A of the Constitution enjoins that it shall be the duty of every citizen of India to protect and improve, inter alia, wildlife and to have compassion for living creatures. Clause (h) of that Article alerts that it

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is the duty of every citizen to develop, among other things, humanism. Homosapiens form just one of the multifarious species which are entitled to occupy earth. Homosapiens without humanism are dastards and are unworthy of being called human beings. T.N.Godavarman Thirumalpad v. Union of India ; (2002) 10 SCC 606 was rendered by the Apex Court stating that Articles 48A and 51A of the Constitution together lays down the foundation for jurisprudence of environmental protection. That judicial precedent proceeds laying down the State and the citizens are under a fundamental obligation to improve environment including forests, lakes, rivers and wildlife and have compassion for living creatures. That decision has been so understood and applied by the Constitution Bench in State of

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Gujarat v. Mirzapur Moti Kuresh Kassab Jamat (supra) in which, making reference to Article 51A(g) of the Constitution, the Apex Court stated thus:

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"72.....The State and every citizen of India must have compassion for living creatures. Compassion, according to Oxford Advanced Learners' Dictionary means "a strong feeling of sympathy for those who are suffering and a desire to help them". According to Chambers 20th Century Dictionary, compassion is "fellow feeling, or sorrow for the sufferings of another : pity". Compassion is suggestive of sentiments, a soft feeling, emotions arising out of sympathy, pity and kindness. The concept of compassion for living creatures enshrined in Article 51A(g) is based on the background of the rich cultural heritage of India the land of Mahatama Gandhi, Vinobha, Mahaveer, Budha, Nanak and others. No religion or holy book in any part of the world teaches or encourages cruelty. Indian society is a pluralistic society. It has unity in diversity. The religions, cultures and people may be diverse, yet all speak in one voice that cruelty to any living creature must be curbed and ceased. ..."

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When the elements of compassion for living creatures and humanism coupled with the fundamental duties of the citizens to protect wildlife are assimilated in the context of the objects sought to be achieved through Article 48A, it becomes the unsurmountable requirement that safeguarding the wildlife of the country is the composite obligation of the citizens and the State. This is so because the Directive Principles of the State Policy in Part

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IV of the Constitution are fundamental in the governance of the country and they permeate lacing-on to the Fundamental Duties of the citizens; bereft which, responsible citizenry would remain a mirage. Hence, it is part of principles and policies ingrained in Article 39 and Article 48A among the Directive Principles of the State Policy, read alongwith the Fundamental Duties of citizens in terms of Article 51A(g), that we need to recognise that animals do have their rights, the enforcement and preservation of which depend largely upon the self-imposed or, otherwise enforced, restrictions that the humans should maintain; individually, collectively and through institution of governance; against invading the life and territories of animals. A salutary principle, accepted worldwide, for proper management of such scenario is to uphold the right of the animals to say "Leave Us Alone".

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13.The restitutionary and curative processes including the method of regulating those wild animals who get caught in the domestic sectors and the management of animal health among the wild also have to be appropriately updated to the satisfaction of the constitutional goals and values delineated among the Directive Principles of State Policy (DPSP) enshrined in Part – IV of the Constitution of India. The Governments at the Union of India and the State level have to be alert to situations of all possible conflicts between the animals and humans to exclude such situations. That would be the best mode of preventing cruelty to animals in the wildlife sectors. Insofar as it relates to elephant management in the State of Chhattisgarh, it appears that with the vast forest cover that the State has, should itself be a reason why adequate measures ought to be taken to reduce human animal conflicts.

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14.The issue that remains for consideration relates to action consequential on the order issued by this Court in this case on 18.01.2017. Recording that the forest officials have made proposal to the State Government that Elephant Rescue Centre may be set up either in the area of Sihaval Sagar,

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Achanakmar or at Surguja, this Court had opined that there can be no doubt that there is need to set up Elephant Rescue Centre in the State of Chhattisgarh and that there are large number of elephants in the State of Chhattisgarh and due to human-animal conflict, the elephants are being caught in large number and some of them cannot be set free and have to be kept in such rescue centres. Through the said order, the State Government was directed to take a decision as to in which place the Elephant Rescue Centre is to be set up. A Compliance Report dated 31.03.2017 on behalf of the State of Chhattisgarh (Respondents No. 2 to 5) supported by an affidavit of even date sworn to by the Deputy Director, Achanakmar Tiger Reserve is placed on record. It is stated that therein that a five member team consisting of the Additional Principal Chief Conservator of Forests (Wildlife), Chief Conservator of Forests, Bilaspur Circle, Conservator of Forests-cum-Incharge Field Director, Achanakmar Tiger Reserve, Assistant Director, Achanakmar Tiger Reserve and Wildlife Veterinarian, Kanan Pendari Zoo, Bilaspur was constituted and it was decided to keep 'Sonu' and three other elephants now in the Achanakmar Tiger Reserve, in Sihawal Sagar having water resources facility, regional staff camp and other suitable amenities. It is also stated that in future, if any wild elephant is caught, the same can be kept at the proposed Elephant Rescue and Rehabilitation Centre situated at Pingla, District Surguja. The said Report proceeds to say that the Deputy Director, Achanakmar Tiger Reserve, Lormi has been informed that a budgetary allocation to the tune of Rs.22.19 lacs has already been sanctioned for the Elephant Rescue Centre at Tamor Pingla and directions for utilization of the funds from the aforesaid budgetary allocation for the Elephant Rescue Centre at Chendra situated at Surguja Forest Division have also been issued. It is further stated in the Report that in order to provide better shelter for the young abandoned elephants from the wild, for future release in the wild; to provide shelter to old, sick and captive

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elephants; to provide housing to elephants rescued from abuse, on court advise, rouge, sick, blind etc.; to create orphanage centre for the needy elephants; to provide a model for keeping the elephants in captivity; to bring the animals to a designated care centre; to enable owners of ailing elephants to afford health care and medical attention; to monitor and educate mahouts on elephant management; to educate, train and make the public aware of an elephant's needs; social behaviour and genetic studies on captive elephant behaviour; elephant calf management and to research on the various aspects of the elephant management, behaviour, health etc.; a comprehensive exercise and discussions with the experts having the vast experience in the field, have been taken at different dates and stages and after detailed exercises, a draft master plan for Elephant Rescue and Rehabilitation Centre - Pingla containing the structural components of Elephant Rescue and Rehabilitation Centre and other aspects etc. has been prepared for a special long-term strategy (2017-2018 to 2019-2020) and the said master plan has been forwarded to the Central Zoo Authority, New Delhi vide letter dated 08.03.2017, for its approval. The said master plan of Elephant Rescue And Rehabilitation Centre - Pingla, Elephant Reserve, Surguja which delineates Special Long Term Strategy (2017-2018 to 20192020) is placed on record alongwith Annexure R/2EG. The said Annexure is taken on record.

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15.In the result, we direct the Government of Chhattisgarh and the Principal Chief Conservator of Forest (Wildlife), Chhattisgarh to issue requisite directions, as may be found necessary, to avoid instances like the one in hand and to assure augmenting the protection of animals in terms of the laws, particularly those governing animal welfare, also by adopting a realistic approach to prevent and control human-animal conflicts and to ensure that every due and requisite action is taken at the appropriate level to effectuate the decision arrived at by the State Government authorities in

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relation to setting up and management of Elephant Rescue Centers as noticed in the immediately preceding paragraph of this judgment. Respondent No. 1 is also directed to do the needful to expedite the decision making by the Central Zoo Authority on the master plan forwarded to it alongwith Annexure R/2EG, so that the proposal could be carried forward further. The writ petition is ordered accordingly.

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Sd/Sd/(Thottathil B. Radhakrishnan) (Sharad Kumar Gupta) Chief Justice Judge

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Kishore / Subbu

Nitin Singhvi v. Union Of India

Case brief

What is this about?

What did the court decide?

Nitin Singhvi v. Union Of India

Case brief

What is this about?

What did the court decide?

What the court decided

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