Dismissed

Palakkad Jilla Aana Premi Sangham, v. State of Kerala

Kerala HC4 Aug 2021WP(C)/15316/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition filed by a society alleging mistreatment of a captive elephant. The court held the petition was based primarily on unverified newspaper reports and failed to establish a cause of action, citing Supreme Court precedents on the inadmissibility of such reports as evidence.

What did the court decide?

Prayer for investigation and permission to view the elephant dismissed; writ petition dismissed with no costs mentioned.

Palakkad Jilla Aana Premi Sangham, Vs State of… — Civil Procedure and Limitation | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 4^TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 WP(C) NO. 15316 OF 2021

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PETITIONER:

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PALAKKAD JILLA AANA PREMI SANGHAM, REPRESENTED BY ITS PRESIDENT, HARIDAS MACHINGAL, 12/320, KAILASAM, PALAKAKD-678 001.

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BY ADV N.MAHESH

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RESPONDENT:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 PRINCIPAL CHIEF CONSERVATOR OF FORESTS & CHIEF WILDLIFE WARDEN, FOREST HEADQUARTERS, VAZHUTHACAUD P.O., THIRUVANANTHAPURAM-695 014.

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3 THE WILD LIFE WARDEN, ELEPHANT REHABILITATION CENTRE (ANATHAVALAM), KAPPAKADU, KOTTOOR, THIRUVANANTHAPURAM-695 574.

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4 THE DEPUTY CONSERVATOR OF FORESTS AND WILD LIFE WARDEN,WILD LIFE WARDEN, WILD LIFE SANCTUARY, SULTHAN BATHERY, WAYANAD-673 592.

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SRI. NAGARAJ NARAYANAN, SPL GP FOR RESPONDENTS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C).15316/2021

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J U D G M E N T

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Dated this the 4^th day of August, 2021

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S. Manikumar, CJ.

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‘Palakkad Jilla Aana Prema Sangham’, a society registered under the Societies Registration Act,1960 represented by its President has filed the instant writ petition for the following reliefs:

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“(i) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 1^st respondent to investigate the occurrence of the detachment of trunk of the elephant 'Chandranath';

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(ii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to permit the petitioner to view the elephant 'Chandranath' within a distance as permitted by law;

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(iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents, not to tether captive elephants in forest;

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(iv) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to separate the calf elephants from the elephants camps and upkeep them in an isolated places.”

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2. Short facts leading to filing of the writ petition are as

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follows:

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The petitioner is "Palakkad Jilla Aana Prema Sangham", a society

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registered under the provisions of Societies Registration Act, 1960, represented by its President. Petitioner society has a group of enthusiastic and committed volunteers who ensure that the elephants and their mahouts are fed on time, and in general to ensure their comfort and well-being during festivals. Petitioner's interference is well appreciated among the society in various cases of ill-treatment of the both wild and captive elephants. A captive elephant by name "Chandranath" was seized from Thrissur by the 2^nd and 3^rd respondents herein and later the animal was shifted to Muthanga, elephant camp under the control of the Deputy Conservator of Forests and Wild Life Warden, Wayanad/4^th respondent.

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According to the best information of the petitioner on March 6^th or 7^th of this year a tip of the trunk of the aforementioned elephant was cut and removed by one of its mahouts. The elephant is being kept in an isolated area in order to hide it from the public. The tethering of the captive elephant in wild is very cruel and barbarian method. The elephant cannot defend to protect its own life from the attack of any animal in the wild. It is the method adopted in Thopekkadu Muthumalai in Tamil Nadu forests and in various elephant camps in Karnataka, captive elephants will be free in the wild so as to take its fodder and those elephants will come to the camp by calling of their mahouts. So it

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is patently evident that, the negligence of the respondents in upkeeping the captive elephants in their custody.

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Similarly, during the last month, 2 calf elephants succumbed due to herpes, a virus which is fatal to the calf elephants, at Kappukade, Kottoor, Thiruvananthapuram under the control of Wild Life Warden, Thiruvananthapuram/3^rd respondent. Elephant endotheliotropic herpes virus or Elephanbid eta herpes virus 1 is a type of herpes virus which can cause a highly fatal hemorrhagic disease when transmitted to young Asian elephants (Wikipedia). These calf elephants, which are abandoned by their biological mother elephants in wild. It is also not desirable in upkeeping those elephant calves in elephant camps. The respondents shall isolate them from other elephants. Stating all the aspects in detail the petitioner filed a representation before the 2^nd respondent dated 3.7.2021. But nothing has been materialized so far. Hence this writ petition

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Posed with the question, as to the basis of filing of the writ petition, Mr. N. Mahesh, learned counsel for the petitioner submitted that the writ petition was filed, based on news paper report followed by a representation dated 3.7.2021. Reference is also made to paragraph 6 of the statement of facts filed along with the writ petition, which reads thus:

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“In pursuance to the Exhibit P2 communication, the 2^nd respondent herein issued a communication to the petitioner. A true copy of communication issued by the 2^nd respondent to the petitioner dated 22.6.2021 is produced herewith and marked as ExhibitP3. It is clear from Exhibit P3 that, admittedly the elephant was tethered in the wild and a wild elephant attacked the elephant Chandranath. The tethering of the captive elephant in wild is very crucial and barbrian method. The elephant cannot defend to protect its own life from the attack of any animal in the wild. It is the method adopted in Thopekkad Muthumalai in Tamil Nadu forest and in various elephant camps in Karnataka, captive elephants will be free in the wild so as to take its fodder and those elephants will come to the camp by calling of their mahouts. So it is patently evident that, the negligence of the respondents in upkeeping the captive elephants in their custody.”

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As regards the first prayer, to conduct an investigation, material on record discloses that pursuant to a telephonic conversation with the Principal Chief Conservator of Forest (Wildlife) & Chief Wildlife Warden (Kerala) on the alleged illegal transportation and possession of captive elephant named ‘Chandranath’ and injuries sustained, a letter dated 22.6.2021 has been sent by the Principal Chief Conservator of Forest (Wildlife) & Chief Wildlife Warden (Kerala) to Mrs. Menaka Sanjay Gandhi, Member of Paliament, New Delhi and Dr.K. Muthamizh Selvan, Scientist ‘D’ (Project Elephant), Ministry of Environment Forest

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& Climate Change (Project Elephant Division) stating that an inquiry into the above has been conducted and that the injury sustained by the captive elephant ‘Chandranath’ was due to an attack by another animal. For brevity, Ext.P3 letter dated 22.6.2021 is extracted :

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“KFDFHQ/2118/2021-CWW/WL13 22.6.2021

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Mrs. Menaka Sanjay Gandhi, Member of Paliament, 14,Ashoka Road, New Delhi

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Dr.K. Muthamizh Selvan, Scientist ‘D’ (Project Elephant), Ministry of Environment Forest & Climate Change (Project Elephant Division)

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Madam/Sir

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Sub:- Submission of report regarding injury of Captive Elephant 'Chandranath'-reg.

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Ref:- 1) Your telephonic conversation with under signed. 2)GOI letter No.2-23/2017/PE datd 8.6.2021.

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Kind attention is invited to the subject and reference cited. An offence number OR 1/2015 was registered in Thrissur Social Forestry Range against Sri. Anand N G for illegal transportation and possession of captive elephant named Chandranath and the elephant was taken into custody. The elephant was transferred from Jharkhand on 08.09.2015. without proper approval and necessary documents required as per The Wildlife (Protection) Act 1972. After complying necessary formalities and procedures, the elephant was handed

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over to the custodian Sri. Anand N.G. against whom the offence was booked. It was ensured that proper care and treatment was given to the elephant under the strict supervision and monitoring of the Kerala Forest Department.

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As per order number CC 1443/17 dated 19.07.2018 of Hon'ble First Class Magistrate Court III, Thrissur and as per proceedings order number BDC (2)44512/15 dated 27.04.2016 of Additional Principal Chief Conservator of Forests (BDC). The elephant was shifted to Kottoor Elephant Rehabilitation Centre on 21.07.2018.

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In the context of increasing man animal conflict in the State to drive away the Wild elephants entering into human habitations, it was decided to develop a squad of Kumki Elephants by providing Kumki training to selective elephants that are under the custody o Kerala forest Department. As a young (28 years old) and healthy elephant, it was decided to train the elephant Chandranath too. As per order number WLI- 13277/14 dated 24.04.2020 of the Chief Wildlife Warden (Kerala), Chandranath was transferred from Kottoor to Muthanga Elephant Camp for Kumki training and also to expose the animal to semi wilderness conditions. The training is successfully going on at Muthanga Elephant Camp.

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On 07.03.2021 around 2.00 AM, upon hearing trumpet of Chandranath and chain pulling sound, mahouts of Chandranath along with other Range staffs reached at the tethering place of the elephant 'Chandranath' and found that a wild Makhna was standing near Chandranath and Chandranath was suffering with immense pain and bleeding.

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Mahouts and staffs together drove away the Makhna into the forest. While examining Chandranath and surroundings by the staffs, tip of the trunk of Chandranath was found detached near the elephant and it was understood that the incident happened by the attack of wild Makhna. Since the incident occurred in the late night and due to insufficient light, first aid treatment was given immediately after the incident, by Assistant Forest Veterinary Officer of Muthanga Elephant Camp.

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Detailed treatment procedures commenced at early morning itself under the supervision of Chief Forest Veterinary Officer. To treat the injury, the animal was anesthetized using a Ketamine and xylazine ocktail Local anestheties were also applied for analgesia. The shredded skin and muscles were removed and cleaned the wound with antiseptics. Proboscideal artery and vein were ligated to control the bleeding. External skin was sutured to the internal septum using mattress sutures. The whole wound was packed with antiseptics. Administered fluid support, antibiotics and anti-inflammatory drugs. Around 9.00 AM, surgical interventions were completed. Antibiotic treatment and wound dressing were continued for seven more days, During these period, the elephant was fed and provide water through a hose pipe to prevent contamination of the wound.

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The animal was monitored regularly by Chief Forest Veterinary Officer/Assistant Forest Veterinary Officer and excellent healing was observed. The animal started moving and flexing his trunk within two days post-surgery. Parental drug treatment was stopped after seven days of the incident and topical applications were continued. After a month, the animal started to use its trunk for drawing water from the

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trough and started feeding its own using the trunk. Excellent functional adaptations were noticed with its deformity and currently the animal can perform all its functions of its trunk with modifications. The elephant is healthy and active now. Periodic health assessment of all elephants in Muthanga Elephant Camp, including Chandranath is being done by Assistant Forest Veterinary officer. All treatment as well as heath assessment: details of elephants are being properly recorded in the register.

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As mentioned in pre para, the elephant Chandranath was injured due to attack of wild Makhna. Since several complaints were received alleging that the injury of Chandranath was man made, detailed enquiry was conducted through Divisional Forest Officer, Flying Squad Division, Kozhikkode. After detailed enquiry, Flying Squad Divisional Forest Officer has submitted his report stating that the injury was due to attack of wild Makhna. The Chief Veterinary Officer after examining the injured trunk and its detached portion has also reported that the injury was a crush wound and it could be inferred that the wild bull chewed off the trunk. Chewing of the tail during male-to-male aggression in the wild is common.

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Above details are submitted for favour of your kind information.

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Encl: 1) Copy of Treatment report of Forest Veterinary Officer dated 07.03.2021

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1. Copy of treatment register of Chandranath Elephant.

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1. Copy of the Health assessment report of Assistant

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Forest Veterinary Officer. Wayanad dated 08.062021.

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Yours faithfully.

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Sd/-

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For Principal Chief Conservator of Forest (Wildlife)& Chief Wildlife Warden (Kerala)”

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Inasmuch as enquiry has already been conducted and report

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sent, in particular, to the Scientist ‘D’ (Project Elephant), Ministry of Environment Forest & Climate Change (Project Elephant Division), prayer for directing Government of Kerala, Secretary to Government, Department of Forest and Wild Life, Thiruvananthapuram to conduct investigation into the occurrence of the detachment of trunk of elephant ‘Chandranath’, cannot be granted. The prayer permitting the petitioner to view the elephant is also not permissible. As stated supra, in so far as the alleged death of two calf elephants and representation dated 3.7.2021, learned counsel for the petitioner himself has fairly admitted that the representation has been filed solely based on newspaper report.

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On more than one occasion, Hon’ble Supreme Court has held that the writ petitions filed purely based on newspaper reports are not maintainable. Reference can be made to few decisions:

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(i) In Laxmi Raj Shetty and Another v. State of Tamil Nadu

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[(1988) 3 SCC 319], at paragraphs 25 and 26, the Hon'ble Supreme Court held as under:

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"25. ............ We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by

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evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein.

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It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna v. George Femandez and Ors. [(1969) 3 SCR 603]. There the question arose whether Shri George Femandez, the successful candidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was stated thus:

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"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."

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We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of

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Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29^th and the 30^th as alleged."

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(ii) In S.A. Khan v. Ch. Bhajan Lal and Another reported in

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(1993) 3 SCC 151: AIR 1993 SC 1348, at paragraph 22, the Hon'ble Supreme Court held as under:

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"22. In the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. In fact, Ch. Bhajan Lal in his counter affidavit has taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo motu notice for contempt of court."

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(iii) In Ravinder Kumar Sharma v. The State of Assam and

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Ors ., reported in AIR 1999 SC 3571, at paragraph 25, the Hon'ble Supreme Court held as under:

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"25. Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including the respondents 2 and 3. But the presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated

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therein. The statements of fact in newspapers are merely hearsay Laxmi Raj Setty v. State of Tamil Nadu [1988CriLJ1783]."

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(iv) In Vikas Vashishth v. Allahabad High Court reported in

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(2004) 13 SCC 485, the Hon'ble Supreme Court held as under:

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"4. At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22^nd respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such appreciation.

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After affording the full opportunity of hearing, we are satisfied that what purports to have been filed as a public interest litigation is nothing more than a "publicity interest litigation". It is writ large that it has been filed without any effort at verifying the facts by the petitioner personally."

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(v) In Rohit Pandey v. Union of India reported in (2005) 13 SCC 702, Hon'ble Supreme Court held as under:

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"1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the army according to reports published in two newspapers, to the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper

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reports dated 25-1-2004, and the other dated 12-22004. This petition was immediately filed on 16-2-2004 after the aforesaid second newspaper report appeared. On enquiry from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister.

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We expect that when such a petition is filed in public interest and particularly by a member of the legal profession, it would be filed with all seriousness and after doing the necessary homework and enquiry. If the petitioner is so public-spirited at such a young age as is so professed, the least one would expect is that an enquiry would be made from the authorities concerned as to the nature of investigation which may be going on before filing a petition that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner. There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court within two-three days of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7-10-2004, placing on record the steps taken against the accused persons, including the submission of the charge-sheet before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner "

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(vi) In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra

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and Ors. reported in (2007) 14 SCC 281, the Hon'ble Supreme Court held as under:

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“18. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu (1995) ILLJ 622 SC, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. [1994] 1 SCR 857. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ 3983)]. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.

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As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the

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message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.”

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In the light of the above decisions and discussion, instant writ

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petition is dismissed.

Sd/S. Manikumar,

Chief Justice

Sd/Shaji P. Chaly,

Judge

sou.

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APPENDIX OF WP(C) 15316/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF NEWS ITEM REPORTED IN INDIAN EXPRESS NEWS DAILY IN ITS PALAKAKD EDITION DATED 28.05.2020. EXHIBIT P2 TRUE COPY OF REPRESENTATION DATED 25.05.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P2 (a) TRUE ENGLISH TRANSLATION OF EXHIBIT P2. EXHIBIT P3 TRUE COPY OF COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 22.06.2021. EXHIBIT P4 TRUE COPY OF REPRESENTATION DATED 03.07.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 (a) TRUE ENGLISH TRANSLATION OF EXHIBIT P4.

Palakkad Jilla Aana Premi Sangham, v. State of Kerala

Case brief

What is this about?

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Palakkad Jilla Aana Premi Sangham, v. State of Kerala

Case brief

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