Gauri Maulekhi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Ms. Priyanka Bangari, learned counsel for the petitioner, Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand, and Sri Sanjay Bhatt, learned Standing Counsel for the Union of India.

The relief sought for in this writ petition is for an order or direction, in the nature of certiorari, to quash the order of the Chief Wildlife Warden dated 28.02.2019; and to pass an order for the eight case property elephants to be treated and housed at their natural habitat in the custody of the Forest Department, since these animals are the property of the Government.

By the proceedings, impugned in this writ petition, the office of the Chief Forest Protection (Wildlife) / Wildlife Conservator, Uttarakhand informed the Divisional Forest Officers that, pursuant to the letter of the DFO dated 05.02.2019, the custody of the elephants of the Forest Department be handed over, after inquiry of the legal documents with respect to the elephant as per the provisions of Wildlife (Protection) Act, 1972, in terms of the order passed by the Supreme Court in SLP (Civil) Dairy No. 44563/2016 dated 29.01.2019. The Divisional Forest Officers were directed to ensure compliance of the prevalent orders / rules with respect to maintenance of elephants, and to also ensure that the health, food and maintenance of elephants is monitored at regular intervals.

Ms. Priyanka Bangari, learned counsel, would refer to the order of the Division Bench in Writ Petition (PIL) No. 6 of 2012 dated 03.08.2018, whereby commercial use of elephants, in the entire State of Uttarakhand, was banned until further orders of the Court, including joyrides / rides by the owners of the resorts. The Chief Wildlife Warden, through the DFOs, was directed to take over possession of the elephants from their owners by issuing them proper receipt for their treatment, medical examination and proper upkeep within 24 hours, and that the elephants should be temporarily kept at the Rajaji National Park, Chilla. The injured / maimed elephants were directed to be attended to by the Veterinary Doctors within 12 hours from the date of the order. The Chief Wildlife Warden, through the concerned DFOs, was directed to issue notices to the owners of the elephants to explain under what law they were using the elephants commercially, including joyrides in breach of the Wildlife Protection Act, 1972 and the Prevention of Cruelty to Animals Act, 1960.

Ms. Priyanka Bangari, learned counsel for the petitioner, would submit that, pursuant to the order of the Division Bench, FIRs were registered against the elephant-owners; and, consequent thereto, the elephants became case properties, and the Chief Wildlife Warden could not have unilaterally released all the elephants without prior permission of the Magistrate concerned.

The FIR appears to have been registered pursuant to the directions of the Division Bench, as aforementioned. This order of the Division Bench was subjected to challenge before the Supreme Court, by one of the elephant-owners, in SLP (Civil) Dairy No. 44563/2016 and, by its order dated 29.01.2019, the Supreme Court granted stay of operation of the judgment and order of the High Court. As a result of the order of stay, of the operation of the judgment of the Division Bench of this Court, the situation as it existed, prior to the date of the order of the Division Bench, was to prevail on and from 29.01.2019 when the aforesaid order was passed by the Supreme Court.

As the elephants were seized and kept in custody, in compliance with the aforesaid directions of the Division Bench, the Chief Wildlife Warden was justified, consequent upon the operation of the said order having been stayed by the Supreme Court, in directing the Divisional Forest Officers to hand over the elephants back to the owners, since these elephants were seized from the owners only in compliance with the orders of the Division Bench. The impugned order ensures that the DFOs monitor the health of, and provision of food to, the concerned elephants.

Ms. Priyanka Bangari, learned counsel for the petitioner, would submit that the petitioner therein had suppressed facts before the Supreme Court, and had thereby obtained an interim order of stay.

It would be wholly inappropriate for the High Court, in the exercise of its jurisdiction under Article 226 of the Constitution of India, to examine whether the petitioner before the Supreme Court had suppressed material facts in obtaining the interim order, as these are all matters which the petitioner herein can only agitate before the Supreme Court.

We see no reason, therefore, to interfere with the order impugned in the writ petition. The writ petition fails and is, accordingly, dismissed. No costs.