(2015) 427 KLW 953
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.
W.P.(C) No. 22682 OF 2010
Dated this the 28th day of September, 2015
PETITIONER
V.K.VENKITACHALAM, AGED 49 YEARS, S/O. VENKITADRI, 35/571, KUNNATH LANE THRISSUR-680 001.
BY ADVS.SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR
RESPONDENTS
1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, ANIMAL HUSBANDRY DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE CHIEF WILD LIFE WARDEN, KERALA STATE FOREST AND WILD LIFE DEPARTMENT FOREST HEADQUARTERS, VANALAKSHMI, VAZHUTHACADU THIRUVANANTHAPURAM-695 014.
3. ANIMAL WELFARE BOARD OF INDIA, REPRESENTED BY ITS SECRETARY, POST BOX NO.8672, 13/1 THIRD SEAWARD ROAD, VALMIKI NAGAR, THIRUVANMIYUR CHENNAI-600 041.
R1 & R2 BY SPL. GOVERNMENT PLEADER, SRI.M.P. MADHAVANKUTTY R3 BY ADV. SRI.K.JAJU BABU (SR.) R3 BY ADV. SMT.M.U.VIJAYALAKSHMI, SC, ANIMAL WELFARE BOARD OF INDIA
JUDGMENT
Ashok Bhushan, C.J.
This writ petition is filed as a Public Interest Litigation seeking a direction commanding the 2nd and 3rd respondents to take immediate action against the 1st respondent and its officials for violating the provisions of the Performing Animals (Registration) Rules, 2001 in the event of conducting a Gajamela.
2. Counter affidavit has been filed by 1st and 2nd respondents to the writ petition. Brief facts of the case emerge from the pleadings of the parties are:-
The petitioner, claiming concern for the protection of elephants and their well-being, has filed this Public Interest Litigation for implementation of the
Performing Animals (Registration) Rules, 2001
(hereinafter referred to as '2001 Rules') which has been framed under
Section 38(1) and (2) of the Prevention of Cruelty to Animals Act, 1960
(hereinafter referred to as '1960 Act').
3. Petitioner's case in the writ petition is that large number of captive animals are found in Kerala and the possessors of these captive animals do not get them registered under the 2001 Rules. Petitioner's case is that these captive animals are paraded in various temple festivals and now the 1st respondent, i.e. State of Kerala, has proposed to conduct “Gajamela” which was to be held from July 23rd to July 27th, 2010. Ext.P2 news report came to be published in a daily newspaper by the officials of the State Government stating that some 15 elephants known for their classic features will be participating in the two hour Gajamela to be conducted on 25th July, 2010.
4. Petitioner's case is that under Section 22 of the 1960 Act there is prohibition from exhibiting or training the performing animals unless the animals are registered in accordance with the provisions of 1960 Act. The State, knowing that the animals which are proposed to be exhibited are not registered under the 2001 Rules, is proceeding to violate the Rules itself. Petitioner's case is that the petitioner had already written to the Animal Welfare Board of India requesting to issue necessary directions for registration of the captive animals under the 2001 Rules. Secretary, Animal Welfare Board of India has also written a detailed letter, dated 26th February 2010 to the Chief Secretary of Government of Kerala informing that all the elephants which are going to participate in the elephant race in Guruvayoor have not been registered under the 2001 Rules, hence appropriate action be taken by the State to get them registered under the 2001 Rules. The letter further stated that it should be ensured that elephants are with valid ownership certificates and health certificates. Petitioner in the writ petition has also narrated certain incidents when two elephants got wild and created terror in the town of Thrissur on 17.07.2010. In the writ petition the petitioner has prayed for the following reliefs:-
“i. To issue a writ, direction or mandamus commanding the 2nd and 3rd respondents to take immediate action against all the 1st respondent and its officials for violating the provisions of the Performing Animals (Registration) Rules, 2001 in accordance with law in the event of conducting Gajamela, the exhibiting of un-registered elephants, in accordance with law.
ii. To issue, a writ, direction or order in the nature of mandamus commanding the respondents 2 and 3 to take all measures against the parading or exhibiting of elephants in violation of Performing Animals (registration) Rules, 2001 and the Prevention of Cruelty to Animals Act, 1960 in accordance with law.
Iii. Such other relief's which this Hon'ble Court deems fit and necessary in the circumstances o the case and the costs of this case so as to prevent cruelty to the elephants and for the effective implementation of the provisions of Prevention of Cruelty to Animals Act, 1960. ”
5. In the counter affidavit filed by the 2nd respondent, it is pleaded that the 2nd respondent is taking all steps for protection and well-being of elephants by implementing the relevant provisions of the
Wildlife (Protection) Act, 1972 and Kerala Captive Elephant (Management and Maintenances) Rules, 2012.
With regard to the 2012 Rules, it has been pleaded that in
Section 21 of the The Prevention of Cruelty to Animals Act, 1960
the term 'exhibit' is defined to mean exhibit at any entertainment, to which the public are admitted through sale of tickets, and 'train' means training for the purpose of any such exhibition. Thus the captive elephants, if they are to be exhibited or entertained to the public through sale of tickets, registration under 2001 Rules is required. It is stated that all necessary actions are being taken to implement the provisions of Wildlife (Protection) Act, 1972 and also Kerala Captive Elephants (Management and Maintenance) Rules, 2012. Various Circulars and Guidelines have been issued under Wildlife (Protection) Act, 1972 for taking care of welfare of the captive elephants. It is true that captive elephants are being used during temple festivals, Gajamelas where sale of tickets for exhibition is not involved.
6. The State Government(1st respondent) has also filed counter affidavit making same averments. It has been pleaded that Animal Husbandry Department is not doing any activity of exhibiting or training elephants for performance. The “Gajamela” to be conducted at Thiruvananthapuram on 25.07.2010 could not be teated as any activity of performance and was only intended to make people aware about elephants and also to develop love and sympathy towards elephants. It is further pleaded that appropriate actions are taken by respondents by implementing 2012 Rules. Under 2012 Rules the District Committee has been constituted with District Collector as Chairman and 8 other members. The Committee meets before festival season to have checks and control and to take measures to ensure welfare of elephants, protection of public and their property.
7. We have heard Sri.P.B. Sahasranaman, learned counsel appearing for the petitioner and Sri.M.P. Madahavan Kutty, learned Special Government Pleader appearing for respondents 1 and 2.
8. The main issue raised in the writ petition is regarding non-registration of captive elephants under 2001 Rules in the State of Kerala. Petitioner's case is that large number of elephants participate in temple festivals in Kerala and now in the Gajamela proposed to be organised by the State about 30 elephants are participating which were without registration. It is argued that knowing well that the elephants cannot be paraded in public without there being registration in 2001, the State is proceeding to hold Gajamela. The Parliament to prevent the infliction of unnecessary pain or suffering on animals and for the purpose of amending the law relating to the prevention of cruelty to animals has enacted the “Prevention of Cruelty to Animals Act, 1960”. Section 2(c) of the 1960 Act defines the 'captive animal'. There is no dispute that elephant is covered within the definition of Section 2(c). Section 4 of the Act provides for 'Establishment of 'Animal Welfare Board of India'. Section 9 provides the functions of the Board. Section 11 enumerates various circumstances which are to be treated as treating animals with cruelty. Chapter V of the Act deals with 'Performing Animals'. Section 21 defines the word “exhibit” and “train” which reads as under:-
“21. “Exhibit” and “Train” defined.- In this Chapter, “exhibit” means exhibit at any entertainment, to which the public are admitted through sale of tickets and “train” means train for the purpose of any such exhibition, and the expressions “exhibitor” and “trainer” have respectively the corresponding meanings”
9. Section 22 of the 1960 Act creates restriction on any person exhibiting or training any animal who has not registered with the provisions of the Chapter V. Section 22(ii) also contains a restriction with regard to the exhibition and training of performing animals, that any animal which the Central Government may, by notification in the Official Gazette, specify as an animal shall not be exhibited or trained as a performing animal. Section 22 of the Act is as follows:-
“22. Restriction on exhibition and training of performing animals.-
No person shall exhibit or train - (i) any performing animal unless he is registered in accordance with the provisions of this Chapter; (ii) as performing animal, any animal which the Central Government may, by notification in the Official Gazette, specify as an animal which shall not be exhibited or trained as a performing animal.”
10. 2001 Rules has been framed under the 1960 Act. Rule 3 of 2001 Rules provides for application for registration. Rule 3 (1) reads as follows :-
“3. Application for registration.-
(1) Any person desirous of training or exhibiting a performing animal shall, within thirty days from the commencement of these rules, apply for registration to the prescribed authority and shall not exhibit or train any animal as a performing animal without being registered under these rules:-
Provided that the race horses which have been registered by the owners with the Turf Authorities shall not, on intimation of such registration to the prescribed authority, require registration under this rule and the general conditions as specified in rule 8 shall apply to such registration subject to such other conditions as my be imposed by the prescribed authority.”
11. What is “exhibition” or “training” as contained in Section 21 of Act has to be looked into, while considering the submissions raised in this writ petition. The definition given under Section 21 is an exclusive definition which provides that “exhibit” means exhibit at any entertainment, to which the public are admitted through sale of tickets. Thus for applicability of Section 21 the first condition is 'exhibition of animals' and second condition is 'to which the public are admitted through sale of tickets'. Thus the provision under Section 21 shall be applicable only when public are admitted through sale of tickets at any entertainment. We proceed on the premise that elephants which are used in temple functions as well as Gajamela are elephants which can be treated to be exhibited at an entertainment. But the second condition which need to be fulfilled for requiring compulsory registration under Section 21 read with Section 2 of 2001 Rules is, 'admitting public through sale of tickets'.
12. In the counter affidavit filed by 1st and 2nd respondents it has been pleaded that elephants which shall be used in Gajamela are not exhibited by sale of tickets. In paragraph 9 of the counter affidavit of 2nd respondent, following was pleaded:-
“9. Regarding the averments contained in ground A of the writ petition, it is submitted that in so far as captive elephants are being used during Temple Festivals, Gajamelas where sale of tickets for exhibition is not involved, registration of captive elephants as performing animals does not appear to be compulsory. The captive elephants engaged in the Gajamela have duly been permitted by the District Collector, Thiruvananthapuram. Directions were issued by him for ensuring that the elephant is having a valid ownership certificate as well as fitness certificate issued by the competent authority that all necessary directions for the welfare of the animal and safety of the public are enforced. The Forest Department has also deputed responsible officers to closely monitor and watch the event and the officer have reported that there is no violations in respect of the Kerala Captive Elephant Management Rules and Wildlife Protect Act has been noticed.”
13. Similarly, the State in its counter affidavit does not dispute that if captive elephants are to be exhibited or entertained to public through sale of tickets, that would require registration under the 2001 Rules. It is also stated that the State has taken various measures with regard to the welfare of the elephants under 2012 Rules. Paragraph 8 of the counter affidavit reads as under:-
“8. Regarding the averments contained in ground A of the writ petition, it is submitted that the grounds put for is not maintainable either on law or facts. It is true that if captive elephants are required to be exhibited for the purpose of entertainment to which the public are admitted through sale of tickets, captive elephants are required to be registered as per the provisions prescribed in the Performing Animals (Registration) Rules, 2001.”
14. In paragraph 10 of the counter it has been stated that the use of captive elephants in temple festivals and in Gajamela are exhibited without sale of tickets. Paragraph 10 reads as follows:-
“10. All effective steps are being taken by the 2nd respondent herein for the implementation of the provisions contained in the Kerala Captive Elephant (Management and Maintenance) Rules. Cases have been booked for violation of Acts and Rules by the officers of the 2nd respondent.”
15. A Division Bench of this Court had occasion to consider Sections 21 and 22 of the 1960 Act in O.P. No. 155 of 1999 and connected cases (K.R.Haier & others v. Union of India) dated 06.06.2000. In the writ petition the challenge was made against the notification issued by the Central Government under Section 22(ii) of the 1960 Act. The challenge was made against the notification on various grounds including the ground that it is discriminatory. It was submitted that various animals have been included in the notification whereas several animals have been left out and zoos have not been taken into the ambit of notification. It was further contended that the notification is arbitrary as it prohibits the training and exhibition of animals through sale of tickets only. Rejecting the said arguments following was laid down by the Division Bench in paragraph 7:-
“7. The petitioners have a further contention that the impugned notification is arbitrary as it prohibits training and exhibition of animals only when the public are invited through sale of tickets, as specified in Section 21 of the Act, whereas, it does not prohibit training and exhibition of animals where the public can be admitted without sale of tickets. We are afraid we cannot give our stamp of approval to this contention for the following reasons:-
Chapter V of the Act deals with performing animals. Section 21 defines the word 'exhibit' to mean “exhibited at any entertainment to which the public are invited through sale of tickets. Thus, persons who exhibit animals against sale of tickets are covered under this chapter and those persons who may choose to exhibit animals without sale of tickets would fall under Section 11 of Chapter III of the Act. Sub-clause (a) of sub-section (1) of Section 11 of the Act make it an offence if any person beats, kicks, over drives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or cause or being the owner permits any animal to be so treated.”
Once the exhibition of the specified five animals is prohibited under sub-section (ii) of Section 22 of the Act on the ground of prevention of infliction of unnecessary pain or suffering by the circus, the same yardstick would have to be applied in the case of a person who exhibits or trains animals for a show where the public is invited without the sale of tickets. Thus, the impugned notification cannot be said to be arbitrary or discriminatory on the aforesaid ground.”
16. Sri.P.B. Sahasranaman learned counsel for the petitioner has also referred to the judgment of the Apex Court reported in
Animal Welfare Board of Inida v. Nagaraja [2014 (2) KLT 717].
In that case the Apex Court had occasion to consider the conduct of Jallikattu and Bullock-Cart Race in the State of Tamil Nadu and Maharashtra. The Animal Welfare Board of India contended before the Apex Court that Jallikattu or Bullock-Cart Race is nothing but cruelty to animals and cannot be allowed by the State Government. The Apex Court in the said case had noticed the notification dated 11.07.2011 issued by the Central Government under Section 22(ii) of 1960 Act whereby the Central Government has prohibited exhibition or training of several performing animals. It is useful to extract the Notification dated 11.07.2011 which is to the following effect:-
“MINISTRY OF ENVIRONMENT AND FORESTS NOTIFICATION
New Delhi, the 11th July, 2011
GSR.528(E).- In exercise of the powers conferred by Section 22 of the Prevention of Cruelty to Animals Act, 1960(59 of 1960), and in supersession of the Notification of the Government of India in the erstwhile Ministry of Social Justice and Empowerment No.G.S.R. 619(E), dated 14.10.1998, except as respects things done or omitted to be done before such supersession, the Central Government, hereby specifies that the following animals shall not be exhibited or trained as performing animals, with effect from the date of publication of this notification, namely:-
1. Bears 2. Monkeys 3. Tigers 4. Panthers 5. Lions 6. Bulls [F. No.27-1/2011-AWD] ANJANI KUMAR, Director(AW).”
17. In the above case the Apex Court had occasion to consider Sections 21 and 22 of the 1960 Act. The Apex Court held that bulls are not designed to be performing animals and they are forced to perform by inflicting pain and suffering in violation of Sections 3 and 33(1) of the 1960 Act. One of the submissions which was also raised before the Apex Court was that Jallikattu or Bullock-Cart Race are conducted without sale of tickets, hence Section 22 of the 1960 Act would not be applied. The said submission was rejected noticing that Bullocks have been specifically prohibited to be exhibited or trained for performance, the question whether in such performance, exhibition or entertainment is conducted with sale of tickets or not is irrelevant. In paragraphs 34, 35 and 36 of the judgment the Apex Court held as follows:-
“34. Bulls, therefore, in our view, cannot be a performing animal, anatomically not designed for that, but are forced to perform, inflicting pain and suffering, in total violation of S.3 and S.11(1) of PCA Act. Chapter V of the PCA Act deals with the performing animals. S.22 of the PCA Act places restriction on exhibition and training of performing animals, which reads as under:-
"22. Restriction on exhibition and training of performing animals :-
No person shall exhibit or train (i) any performing animal unless he is registered in accordance with the provisions of this Chapter; (ii) as a performing animal, any animal which the Central Government may, by notification in the official gazette, specify as an animal which shall not be exhibited or trained as a performing animal.”
35. The words 'exhibit' and 'train' are defined in S.21 of the PCA Act, which is as follows:-
"21. "Exhibit" and "train" defined:-
In this Chapter, "exhibit" means exhibit or any entertainment to which the public are admitted through sale of tickets, and "train" means train for the purpose of any such exhibition, and the expressions "exhibitor" and "trainer" have respectively the corresponding meanings.”
36. S.23 of the PCA Act deals with the procedure for registration. S.24 of the PCA Act deals with the powers of the Court to prohibit or restrict exhibition and training of performing animals. S.25 of the PCA Act confers powers on any authorised person to enter into the premises to examine as to whether the statutory requirements are properly complied with. S.26 of the PCA Act deals with the offences and S.27 of the PCA Act deals with exemptions. Performing Animals Rules, 1973 define 'performing animal' to mean any animal which is used at, or for the purpose of any entertainment to which public are admitted through sale of tickets. Jallikattu, Bullock - cart races, it was contended, are conducted without sale of tickets and hence S.22 of the PCA Act would not apply, so also the notification dated 11/07/2011. We find no substance or logic in that submission. It may be noted that when Bull is specifically prohibited to be exhibited or trained for performance, the question whether such performance, exhibition or entertainment is conducted with sale of tickets or not, is irrelevant from the point of application of S.3 and S.11(1) of the PCA Act.”
18. In the above case the argument that exhibition or training is without sale of tickets was rejected on the ground that there is already a Notification issued by the Central Government prohibiting the exhibition and training of performing animals. For the purpose of exhibition of performing animals under Chapter V of 1960 Act registration is mandatory, when the animal is exhibited or trained as defined under Section 21. In view of the above, registration can be insisted under Chapter V of the 1960 Act read with the 2001 Rules where animals are exhibited or trained at an entertainment on which public is admitted by sale of tickets.
19. In the facts of the present case, there being unrebutted plea on behalf of the respondent that Gajamela which was scheduled to be held on 25.07.2010 by the State of Kerala was not an entertainment at which public were admitted through sale of tickets, we cannot presume any violation of 2001 Rules in the conduct of said Gajamela. It is also further made clear and as also admitted by State in its pleading that in the event the animal is exhibited or trained at an entertainment where pubic is admitted on sale of tickets, the said animal requires compulsory registration under the 2001 Rules.
20. Learned counsel for the petitioner has also referred to one judgment of learned Single Judge of this Court in W.P.(C) No.10424 of 2014 decided on 09.12.2014 (The Society for Prevention of Cruelty to Animals (SPCA) v. State of Kerala and others), where the petitioner has filed the writ petition seeking a direction to the respondent to ensure enforcement of provisions of 2001 Rules. Referring to the counter affidavit filed in the said case, learned Single Judge has disposed of the writ petition directing for implementation of 2001 Rules. It is useful to refer the ultimate direction issued by learned Single Judge which is to the following effect:-
“3. It is stated in paragraph 7 of the counter affidavit that the Kerala Forest and Wildlife Department has registered 160 cases relating to cruelty to elephants, under the Kerala Captive Elephants (Management and Maintenance) Rules. Therefore, the authorities seems to have vigilant in the matter. However, they shall ensure implementation of provisions of the Performing Animals (Registration) Rules 2001 referred above and take appropriate action in the matter as and when it is warranted.”
In the above case the court was considering a case where rates were fixed for elephants ride which fact is clearly mentioned in paragraph 2 of the judgment which was to the following effect :-
“2. A counter affidavit has been filed by the 2nd respondent. Paragraph 5 of the counter affidavit reads as follows :-
“With reference to the averments contained in paragraph 4 of the writ petition, it is submitted that the Captive Elephants are managed under the Kerala Captive Elephants (Management and Maintenance) Rules 2012. The 4th respondent, the Deputy Director, Periyar Tiger Reserve, Idukki, does not maintain any departmental elephant. Ext.P1 was erected to avoid cheating of tourists by private owners of elephants. The rate fixed for elephant ride in G.O.(Rt)No.31/2013/F&WLD dt.16/1/2013(Ext.P2) is kept in abeyance till the departmental elephants are registered under the Performing Animals (Registration) Rules 2001 with the Animal Welfare Board of India. By letter dated 22/4/2014, the 2nd respondent directed the concerned officers to stop using of elephants under their jurisdiction as performing animals till the elephants are registered under the Performing animals (Registration) Rules, 2001. A true copy of the above letter dated 22/4/2014 of the 1st respondent is produced herewith and marked as Exhibit R2(e).”
21. The above case was a case where sale of tickets was an admitted fact, hence no exception can be taken to the directions issued by learned Single Judge. However, as observed above, the registration under 2001 Rules shall be compulsory only when an elephant is exhibited at an entertainment where public is admitted by sale of tickets.
22. It is further relevant to note that in so far as the State of Kerala is concerned, Kerala Captive Elephants (Management and Maintenance) Rules, 2012 has already been enforced which are framed under the Wild Life Protection Act, 1972. The 2012 Rules takes care of various aspects regarding effective control, management and maintenance of captive elephants. The 2012 Rules take care of housing of elephants, upkeep and veterinary care of elephants, cutting Tusks, Work norms, duties and responsibilities of owners, transportation of elephants etc.
23. Learned counsel for the petitioner has also referred to an order passed by the Apex Court in W.P.(C) No.743 of 2014 dated 18.08.2015 (Wildlife Rescue and Rehabilitation Centre and others v. Union of India and others). In the aforesaid case the Apex Court was considering an Interlocutory Application relating to cruelty meted out to the animals in the State of Kerala. The Apex Court had occasion to consider the Wildlife (Protection) Act, 1972 and the 2012 Rules in that case. The Apex Court noted in detail the 2012 Rules framed by State of Kerala wherein various restrictions have been noticed. Though the submission raised before the Apex Court was that the elephant is a performing animal and need to be registered under the 1960 Act, but the Apex Court observed that the said question is to be addressed at a later stage. However, directions were issued to the Chief Wildlife Warden who shall ensure that all captive animals in the State of Kerala are counted. It is useful to refer to the following observations made by the Apex Court in pages 5, 7 and 8 of the order dated 18.08.2015:-
“It is urged by him that unless an animal is performing, it need not be registered under the 1960 Act. As far as the registration with the Animal Welfare Board of India is concerned, the said facet shall be addressed at a later date. As far as the present issue is concerned, we are inclined to direct that the Chief Wild Life Warden shall see to it that all the captive elephants existing in the State of Kerala are counted and in the absence of obtainment of requisite certificate under Section 42 of the 1972 Act and the declaration made under Section 40, appropriate action shall be initiated against the owners. At this juncture, we may note with profit that a set of Rules, namely, Kerala Captive Elephants (Management and Maintenance) Rules, 2012 (for short, 'the Rules') has been framed by the State Government in exercise of power conferred by sub-section (2) of Section 64 of the 1972 Act. Rule 4 of the said rules deals with upkeep and veterinary care of elephants. Rule 8 provides for duties and responsibilities of owner. Subrule (13) of Rule 6 which is relevant for the present purpose is as follows:-
“8(13) Every owner shall maintain an Elephant Data Book as specified by the Chief Wildlife Warden for each captive elephant.”
The purpose of referring to the said Rule is that an owner of an elephant, apart from following the other statutory enactments and the procedure laid down therein, is also required to maintain an elephant data book, as defined in Rule 2 (f) of the Rules specified by the Chief Wild Life Warden for each captive elephant. The said Rule shall be religiously followed failing which the authorities shall take appropriate action against the said person. Rule 9 deals with transport norms for elephants. Rule 10 provides for constitution of the District Committee. As we find, the purpose of the said Rule is to deal with the cases of cruelty meted out to the captive elephants and the constitution of the Committee is heterogeneous nature. We have been apprised that in addition to the members as per 2012 Rules, at present (from January 2015), a representative of the Animal Welfare Board of India has been included apart from other authorities.
xx xx xx xx
On a perusal of the aforesaid Rule, it is clear as Crystal that it obliges the District Committee to take necessary measures to ensure that the festival committee constituted for smooth conduct of the festivals or the persons organizing such functions in which elephants are exposed are required to adhere to many a measure. The District Committee is bound by the Rules and see to it that the festival committees follow the same. At this juncture, a question arose whether the temples or the Devaswom shall get themselves registered with the district committee so that there would be effective and proper control. We think that they should be registered with the Committee and accordingly is directed that the registration shall be done within a period of six weeks from today. The temple and Devaswom shall, apart from other formalities, also mention how many elephants it is going to use in any festival. It will be the obligation of the State to see that the registration is carried out. It shall be the duty of the State, the District Committee, Management of the Devaswom, the Management of the Temple and the owners of the elephants to see that no elephant is meted with any kind of cruelty and, if it is found, apart from being lodging of criminal prosecution, they shall face severe consequences which may include confiscation of the elephants to the State. The IAs are disposed of. Let the writ petition be listed after eight weeks. Pleading shall be completed by then.”
As observed by the Apex Court in the aforesaid order, 2012 Rules takes care of various aspects regarding the welfare of the elephants.
24. In view of the aforesaid, we conclude that registration under 2001 Rules is necessary only when elephant is exhibited or trained at an entertainment where public is admitted by sale of tickets. Whereas when the elephant is used in temple festivals or used in Gajamela which are entertainment where public is not admitted by sale of tickets, then registration of such elephants under 2001 Rules cannot be insisted.
We thus dispose of the writ petition with the following directions:-
1. Registration of elephants under 2001 Rules, when it is used in temple festivals or Gajamela in which entertainment the public is not admitted by sale of tickets, is not necessary.
2. Where the elephant is exhibited or trained at an entertainment where public is admitted by sale of tickets, such performing elephant has to be mandatorily registered under the 2001 Rules.
3. The 3rd respondent - the Secretary, Animal Welfare Board of India shall ensure that all performing elephants which are covered by direction (2) as above, shall get them compulsorily registered under the 2001 Rules and on failure of which appropriate action be taken under the 2001 Rules.