Kerala High Court Dismisses Plea To Bring Back 'Arikomban', Says No Allegation Of Neglect Against Authorities In Tamil Nadu

The Kerala High Court on Wednesday dismissed the plea filed by Sabu M. Jacob, the President of the 'Twenty-20 Party', and the Managing Director of Kitex Garments, seeking safe translocation of rogue elephant 'Arikomban' back to Kerala.

The pachyderm was earlier translocated to Periyar Tiger Reserve for allegedly foraging into the human settlements in Chinnakanal area, However, as per reports the elephant moved close to human settlements in Tamil Nadu leading to issuance of an order by the Chief Wildlife Warden, Tamil Nadu Forest Department to tranquilize and capture and translocate the elephant to the deep forest area of Villaimalai (in Tamil Nadu).

At the outset, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran found that the petitioner had neither made out any factual averments or legal grounds to show that the order issued by the CWW is illegal, nor had he challenged the same. 

"We fail to understand the rationale for the petitioner for venturing into these litigation proceedings. Having read the facts and circumstances of the case, we refrain and restrain ourselves from imposing costs," the Court observed. 

The petitioner submitted that while he was not against the tranquilizing and capture of the tusker, he was against translocation of the animal to an artificial environment. The petitioner further averred that from media visuals, it was clear that the trunk of the elephant had been badly injured and that it was weak due to the non-availability of drinking water.

He thus sought a writ of Mandamus commanding the respondent authorities to handover the tusker to the authorities in Kerala.

The Court however questioned the petitioner as to whether there were any factual averments in the petition to show that  respondent authorities in State of Tamil Nadu have neglected their duties or caused any unnecessary harm or cruelty to the wild tusker. It observed that there were no averments that the statutory and mandatory protocols under the Wildlife (Protection) Act and had been violated by the CWW or any of the other officials.

The Court noted that the CWW was the sole statutory authority which had ordered that the wild tusker, after tranquilization and capture, shall be translocated in the deep forest areas of Vellamalai in the State of Tamil Nadu, and perused Section 11(1) of the Wildlife (Protection) Act, 1972, which clearly stated that translocation was one of the best options available. The Court further noted that the petitioner had, in fact, averred that the capture and translocation of wild animal to an alternate forest and rehabilitation would be the first method that should be adopted.

"In the instant case, the 7th respondent (CWW) has ordered not merely capture of the wild animal, but to thereafter translocate the wild tusker to the deeper forest areas of the forest division concerned of the State of TN. Therefore, a reading of Ext P1 (impugned order of the CWW), will make it clear that decision taken by 7th respondent in terms of Ext P1 appears to be intra vires, and cannot be said to be illegal," the Court observed. 

The Court also orally expressed its doubts as to the bona fides of the petitioner in filing the present writ petition.

As to the prayer sought by the petitioner for commanding the respondent authorities to handover the tusker to the authorities in Kerala, and to translocate and rehabilitate the animal in any of the forest divisions in Kerala, the Court questioned the petitioner as to the rationale and justification for the same. However, the Court noted that the petitioner's only response in this regard was that he is a public spirited person, stated to be one of the leading industrialists in the State, and is also the President of a political party registered with the ECI.

"We specifically queried as to what public interest would be subserved by compelling the respondents the respondent Tamil Nadu authorities to bring back the wild tusker and translocate to some other forest regions in Kerala. We could not get any satisfactory response from the counsel for the petitioners," the Court added. 

On the Court's query to the Additional Advocate General Ashok M. Cherian, as to the stance of the State of Kerala with respect to the petitioner's prayer for handing over of the wild tusker to the State, the counsel informed that the State opposed the said prayer, and was of the view that the said prayer was a "highly irresponsible" one.

The counsel added that the premise adopted by the petitioner as though the elephant was domiciled in the State of Kerala was also erroneous, untenable, and is based on a complete misconception of law. It was further submitted that the sole authority in the matter was the CWW, Tamil Nadu, since the tusker was within the territorial limits of that State, and that the 'well-considered decision' by the said CWW could not be regarded as suffering from illegality, unreasonableness, or impropriety. 

The petition was thus dismissed on these grounds. 

Case Title: Sabu M. Jacob v. Union of India & Ors.

Citation: 2023 LiveLaw (Ker) 245