Umesh Kumar Sharma vs State of M.P. and Others

In this pro-bono-publico writ filed under Article 226 of the Constitution of India, the petitioner has raised the issue of wild animals in captivity in the Zoo (Kamla Nehru Prani Sangrahalay, Indore (for short "the zoo"?) with a prayer to provide them their natural habitat like atmosphere and to make appropriate arrangement for them according to rules made for the purpose particularly for monkeys or to release them (monkeys) from the Zoo and also to direct the respondents to follow the guideline issued by the Central Zoo Authority (CZA) regarding prescribed size of enclosures etc.

According to the petitioners it is held by Hon''ble the Supreme Court in the Jallikattu judgment (Animal Welfare Board of India vs. A. Nagaraj : (2014)7 SCC 547) the animals also has right to life and liberty as guaranteed under Article 21 of the Constitution for the humans. Article 48-A of the Constitution directs the State to endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51-A (g) casts duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. Sections 3 & 11 of the Prevention of Cruelty to Animals Act, 1960 prevents cruelty towards animals. The Recognition of Zoo Rules, 2009 provides erection and management of animal housing and their enclosures. It is directed by these rules that the zoo authorities shall ensure the enclosure is safe and secure for the animals and adequate space shall also be made available to them for free movement, exercise and expression of natural behavior. Adequate space shall also be made available to the animals in order to maintain safe distance from the dominant animals in the group or herd. Every zoo shall endeavour to display the animals in nature immersing enclosures. The designs and dimensions of every enclosure shall be determined having due regard to the biological behaviour of the species and the number of animals to be housed therein. No zoo shall display any animal in the enclosure that is not in accordance with the standards specified by the Central Zoo Authority in this regard. Every zoo shall make special efforts to enrich the environment of the enclosure to meet the species specific behavioural requirements of the animals in accordance with the standards specified by the Central Zoo Authority. No zoo shall display any sick, injured, infirm and tethered animals in the enclosure. Every zoo shall make special efforts to enrich the environment of the enclosure to meet the species specific behavioural requirements of the animals in accordance with the standards specified guide lines issued by the Central Zoo Authority constituted under the Wild Life (Protection) Act, 1972. It has also issued guidelines to grant approval to establish Zoo.

It is submitted by the petitioners that the action of Respondent No.4/Director, Kamla Nehru Prani Sangrahalay, Indore is illegal and arbitrary and kind of cruelty to animals specially for monkeys and direct violation of the fundamental rights and fundamental duties, which are guaranteed by the Constitution as well as violation of the provisions of the Prevention of Cruelty to Animals Act, 1960 and guideline issued by the CZA. Enclosure sizes for all the species particularly monkeys caged in the Zoo are not as per standard by the aforesaid Rules and Regulations. It is very difficult and lethal for monkeys to survive in such a small enclosures. The visitors don''t want to see caged monkeys. It is delightful to see monkeys on the tree to tree and roof to roof with bounce and jumps. Monkeys are considered equal to the mind of a human. Imprison monkeys does not serve any purpose. Therefore, the petitioners prayed for release of the monkeys from the Zoo.

In reply, the respondent No.4 has submitted that every endavour has been made to provide as much as natural atmosphere in which the animals live to the animals caged in the Zoo. Apart from this, respondent No.4 has taken several steps for making suitable arrangement to keep monkeys in the Zoo. A master plan for whole Zoo has already been approved by the Central Zoo Authority, which will cater for the future needs of the Zoo and provide better habitat to the animals. The master plan includes three enclosures for different types of monkeys. This master plan is in process of being implemented in a sequential manner. Specification of the enclosure designs has already been submitted to the Central Zoo Authority for approval. Enclosures have been designed to simulate natural habitat of the monkeys in the best possible manner. After approval, it will be implemented following the due process. Zoo Authority not only keep the healthy monkeys, but injured monkeys are also kept in the Zoo for their treatment, recovery and rehabilitation and same is being done for the other animals also. In the present set up there are some restriction with respect to space, sizes and cages. However, efforts have been made at local level to provide maximum possible space to the animals. Small cages were joint and converted into bigger cages. Existing heights of the cages have also been increased. All other necessary steps had been taken to cater for better habitat of the monkeys and all the other animals also.

It is further contended that when an animal is kept in captivity, it is difficult for it to survive in the nature on being released from captivity, as they are used to a protected environment and food. If released in the nature, it would be difficult for them to survive. The visitors specially the children are excited to see the monkeys in the Zoo. Therefore, it is misconstrued that the people do not want to see monkeys in the Zoo. In the present scenario natural habitat of monkeys are reducing due to deforestation, which is adversely affecting the population of monkeys. For this reason also it is necessary to keep the monkeys in the Zoo and provide them a protective atmosphere. The respondent has annexed various documents to support its contention and prays for dismissal of the present petition.

We have heard both the counsel at length and also gone through the documents and photographs filed by the parties so also the Rules and regulations covering the subject. The documents submitted by the respondent No.4 supports their contention that, some monkeys are kept in the Zoo for their treatment, recovery and rehabilitation. They are providing treatment to other tamed and injured animals also. Annexure R/1 to R/4 and photographs are sufficient to support the contention of the respondent No.4 that they are taking necessary steps for suitable arrangement to keep monkeys in the Zoo. Whole map of the Zoo filed by the respondent No.4 also shows that the Authorities are providing as much as natural atmosphere to the habitats of the Zoo. On the contrary nothing to show that any incident of cruelty towards animals particularly, monkeys has been happened or reported. Also nothing is on record to show that enclosures and habitats are not made as per the specification or standard set by the Central Zoo Authority. No incident of any breach of law or violation of any Rules or Regulation made in this regard has been brought on record. Therefore, rejection of the petition is prayed for.

Keeping in view the steps taken or proposed to be taken by the respondent No.4 to provide better habitat to the animals kept in the Zoo to meet the species specific behavioural requirements of the animals in accordance with the standards specified by the Central Zoo Authority., lack of any proof of misuse or violation of any Rules and regulations particularly regarding size and shape etc. of the enclosures of the monkeys and lack of evidence regarding any other in irregularity, we do not consider it as a fit case to issue any writ or direction as prayed for.

Apart from this, it is admitted by the petitioner that Central Zoo Authority has been constituted under the Wild Life (Protection) Act to look after and regulate all these matters and to take appropriate steps to ensure compliance of the rules, regulations and guidelines in this regard and to deal with the matters connected therewith and incidental thereto. Undisputedly, the petitioners have not exhausted equally efficacious statutory alternate remedy and have come directly to this court which is not proper.

In the judgment passed in Union of India and Ors. Vs. Major General Shri Kant Sharma and Anr. AIR 2015 SC 2465 Hon''ble the Supreme Court has held that when alternate remedy is available, writ is not maintainable. Para 34 of the judgment reads thus: 34. The aforesaid decisions rendered by this Court can be summarized as follows:

(i) ?...

(ii) ?...

(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer:Nivedita Sharma).

(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma).

In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others Vs. Sahngoo Ram Arya and another AIR 2002 SC 2225 also it was held that the Writ petition having been filed without availing alternate statutory remedy is not maintainable.

Thus on the facts so also on the ground of availability of alternate remedy, we are not inclined to accede the prayer of the petitioner. Therefore, we dismiss the present writ without any order as to the cost.