Amit Rawal, J.

1. The Petitioner filed the present Writ Petition in the nature of Public Interest Litigation for appropriate orders and directions against the Respondents from changing the physical custody and possession of captive Elephants in State of Kerala especially against the Respondent No. 2 from taking any decisions in respect of representation dated 28.12.2024 Ext.P2, of Respondent No.3 or any other Elephant owner/possessor, being a public spirited person espousing the cause of Elephants in the State of Kerala.

2. The genesis of the grievance attempted to be espoused is on the following facts:

(i) Respondent No. 1 is the State of Kerala through the Forest Department. The Respondent No. 2 is one High Powered Committee which was formed by High Court of Tripura at Agartala in WP(C)(PIL) No. 17 of 2022 in the case of Sudipa Nath vs Union of India reported in 2022 SCC Online Tri 691. The Respondent No. 2 was referred by Hon’ble Supreme Court of India in Order dated 03rd March 2023 in Muruly M S vs. State of Karnataka reported in 2023 SCC OnLine SC 224.

(ii) Respondent No. 3 claims to be a registered federation of animal protection organizations, allegedly comprising of eight organizations: PFA Thiruvananthapuram, SPCA Idukki, WEFAA, PAWS Thrissur, PAW Kannur, ARROW Thiruvalla, HATF, and SEW Kollam and have made a representation dated 28th December 2024 Ext.P2 which came in public only on 30th December 2024 to the Respondent No.2 expressing apprehension that Elephants in Kerala may not be sent out of possession of their owners, caretakers and possessors to rescue centres even outside Kerala.

(iii) That there are several captive Elephants in the State of Kerala and as per latest numbers the count of captive Elephants in the State of Kerala is about three hundred and eighty eight (388) Elephants. As per provisions of the Wild Life (Protection) Act, 1972 the said Elephants are required to be in custody and possession of the person who has the Certificate of Ownership of the said Elephant.

(iv) There are differences of opinion in regard to the participation of the Elephants for religious activities in State of Kerala. However, apart from the ownership, the possession of the Elephants in the State of Kerala is to be regulated by the provisions of the Wild Life (Protection) Act, 1972 (For brevity referred to as the said Act) and the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 (For brevity referred to as the said Rules).

(v) The said Act and the Rules are already holding the field. As per Rule 4, there is a wholesome and complete code on the Upkeep and Veterinary Care of Elephant whereas Rule 8 envisage performance of the Duties and Responsibilities of owners and Rule 9 Transport norms for elephants. All aspects regarding the ownership, upkeep, veterinary care, duties and responsibilities of owners and their transfer or transportation has been provided for by the Rules, Ext.P-1.

(vi) Therefore no other authority or any body except Respondent No. 1 through its Forest Department or Chief Wildlife Warden can take any steps in respect of any Elephants in the State of Kerala.

(vii) The Respondent No. 3 has written an letter/ representation Ext.P2 falsely claimed that there have been many deaths of Elephants recorded in Kerala over the past eight years and numerous captive elephants/wild animals in Kerala suffer from severe disease like blindness, arthritis, foot problems, and gastrointestinal diseases. Thus, appealed to the Respondent No. 2 that since these diseases require some type of advanced veterinary care, these Elephants must be directed to be transferred for treatment and care at a rescue center equipped with the required facilities within Kerala or elsewhere in India. This particular communication is being widely circulated by the Respondent No. 3 on social medias like facebook etc to garner support of certain other agencies and bodies with a view to create excuse and reason to transfer out Elephants from Kerala.

(viii) In fact it is a ruse and excuse of the Respondent No. 3 to enable the shifting of Elephants/wild elephants outside the State of Kerala which, in fact, is a pride for the State of Kerala and its residents. The Respondent No. 2 has no authority in any matter relating to Elephants in the State of Kerala. It seems that the Respondent No.3 is interested in enriching the private organisations who hold Elephants/wild elephants in the name of rescue centers like Jaipur Elephant Village, Wildlife SOS at Mathura Uttar Pradesh, Vantara at Jamnagar, Radhe Krishna Temple Elephant Trust at Jamnagar and Tiruchirappalli’s Elephant Rehabilitation and Rescue Centre.

(ix) The Respondent No. 2 though is a High Powered Committee but its actual purpose and history when looked into makes clear that it has no power, right, authority or jurisdiction to take up any matters of any Elephants particularly the Elephants/wild animals from the State of Kerala.

(x) The High Powered Committee came into existence only as a one-time measure because, in November 2022 there was a transfer of some Elephants from Tripura and Arunachal Pradesh to Radhe Krishna Temple Elephant Welfare Trust at Jamnagar, Gujarat. A petition was filed to challenge the transfer and in that petition the High Court of Tripura at Agartala in paragraph 27 of the judgement dated 07th November 2022 raised sixteen (16) questions and for resolving the controversy/ questions, in paragraph 34(b) constituted a High Powered Committee (HPC). This was done only as a one time measure for transfer of Elephants/wild elephants and only for that Jamnagar Radhe Krishna Temple Elephant Welfare Trust. A copy of the judgement of the High Court of Tripura at Agartala in WP(C)(PIL) No. 17 of 2022 in the case of Sudipa Nath vs Union of India reported in 2022 SCC Online Tri 691 has been annexed Ext.P- 3.

(xi) Thereafter, Hon’ble Supreme Court of India was moved for seeking clarifications in respect of transfer of Elephants to Jamnagar Radhe Krishna Temple Elephant Welfare Trust. In this context the Hon’ble Supreme Court in paragraphs 7 to 9 of its Order dated 03rd March 2023 stated that there is no reason not to extend the scope and jurisdiction of the HPC to "Pan India". However this was only in respect of one organization. A copy of the Order dated 03rd March 2023 in Muruly M S vs. State of Karnataka reported in 2023 SCC OnLine SC 224 is Ext.P-4.

(xii) That there is only one other reference to the above HPC reflected in Order dated 12.05.2023 Ext.P5 passed by Hon’ble Supreme Court of India. However the said Order was passed only on IA and not on substantive merit based Writ Petition or Public Interest Litigation or Special Leave Petition, therefore that Order cannot be treated as binding pre se.

(xiii) That none of the above three Orders concerning the HPC were passed by any of the above Hon’ble Courts after considering the said Rules or the provisions of the Rules of 2012. As such the said Orders or Judgements are not applicable to the State of Kerala but are per incuriam in so far as the State of Kerala is concerned

(xiv) The said Rules are fully applicable to Kerala and embodies all the issues and subjects and do not require other body except the State of Kerala Forest Department and Chief Wild Life Warden. The creation of super body such as HPC for State of Kerala is not at all required. The said three Orders or Judgments cannot be made applicable to the State of Kerala. It is in these circumstances, invoked jurisdiction of this Court.

3. Sri.Santhosh Paul, learned senior counsel for the petitioner, assisted by Sri.Pradeep Joy, submitted the following :

a) The said Act and the said Rules are holding the field and are in place. As per the said Rules and mainly Rule 4 there is a wholesome and complete code on the Upkeep and Veterinary Care of Elephant. Already Rule 8 provide for all the Duties and Responsibilities of owners. Furthermore Rule 9 is enacted for Transport norms for elephant/wild elephants. Once there are Rules emanate from the statute the Respondent No. 2 cannot exercise any scope, jurisdiction, power, right or authority in respect of Elephants in the State of Kerala.

b) The three Orders or Judgements i.e. (1) Judgement of the High Court of Tripura at Agartala in WP(C)(PIL) No. 17 of 2022 in the case of Sudipa Nath vs Union of India reported in 2022 SCC Online Tri 691 which first time constituted the HPC, (2) Order dated 03rd March 2023 in Muruly M S vs. State of Karnataka by Hon’ble Supreme Court of India reported in 2023 SCC OnLine SC 224 which granted HPC "Pan India" status and (3) Order dated 12.05.2023 passed by Hon’ble Supreme Court of India in I.A 96279 of 2023 which referred other issues to the HPC do not make any reference to any Kerala Rules, therefore are "Per Incuriam"and not applicable to the State.

c) Since per incuriam judgment refers to a judicial decision made without recognizing a relevant statute. Constitutional Courts are not bound to follow such rulings and may hold judgments to be per incuriam. A judgment is to be considered per incuriam if it overlooks a crucial provision or precedent central to the legal issue, or the omission is significant and inconsistent with the law, or if the reasoning in the judgment is demonstrably flawed. In the present case, admittedly, the said Rules have not been considered by any of the said three Orders or Judgements. In these circumstances, the Respondent No. 2 would not have any power, authority, jurisdiction, scope or right to take up any matter regarding any issue dealing with the State of Kerala or any Elephant/wild animals in the State of Kerala.

d) The Respondent No. 3 is falsely claiming to be an animal right protection organisation. The letter written by the Respondent No. 3 to the Respondent No. 2 is based on incorrect facts and figures. The action of Respondent No.3 tantamounts to stultifying the provisions of Act and Rules ibid to transfer out Elephants/wild elephants from Kerala.

e) The unreasonable restriction by the said Orders and Judgments to approach the HPC affects the fundamental rights of persons in ownership and possession of Elephants in the State of Kerala.

f) That owners of Elephants can only be regulated as per the said Rules which allows free transfer and transportation of animals and if HPC assumes jurisdiction in State of Kerala there will be an unconstitutional and illegal burden cast on the owners of Elephants in approaching the HPC and in obtaining permission before the transfer or transport of their Elephant/elephants.

4. We have heard the learned counsel for the petitioners and appraised the paper book.

5. This Petition is moved urgently apprehending that a High Powered Committee viz. Respondent No. 2 will make a decision on a request from an animal welfare organization viz. Respondent No.3 which could lead to transfer of captive Elephants/wild animals from their owners to rescue centres in and outside Kerala. We have perused the request dated 28th December 2024 Ext.P-2 submitted by the Respondent No. 3 to the Respondent No. 2. The said request is a generalized request seeking directions from the Respondent No. 2 regarding the welfare of Elephants suffering from illness.

6. The whole basis of the Petition is that the scope of jurisdiction of such High Powered Committee viz. Respondent No. 2 does not extend to the State of Kerala because the Petitioner believes that the Judgements granting this Committee powers are per-incuriam for not considering the Kerala Captive Elephants (Management and Maintenance) Rules, 2012.

7. This basis is completely meritless and to fortify this, we only need to reproduce certain portions of the Orders of the Hon’ble Supreme Court which speak for themselves;

Order dated 12th May 2023 passed by Hon’ble Apex Court in IA No. 96279/2023 in W.P (C) No. 335/2017 1 By its judgment dated 7th November 2022 in Sudipa Nath vs Union of India, a Division Bench of the High Court of Tripura constituted a High- Powered Committee consisting of the following persons:

i. Director General of Forests (Union of India);

ii. Head of Project Elephant Division (MoEF);

iii. Member Secretary (Central Zoo Authority of India);

iv. Chief Wild Life Warden (State of Tripura) for Elephants; and

v. Chief Wild Life Warden (State of Gujarat).

The Chairman of the HPC was directed to co-opt an expert having domain experience in elephants, as a member of the HPC. The directions that were issued by the Division Bench of the High Court in paragraph 34 of its judgment are extracted below:

“a. We direct the Project Elephant Division of the Ministry of Environment, Forests and Climate Change to issue necessary directions to all Chief Wild Life Wardens to take all steps necessary to curb and put to an end, the capturing of wild Elephants, if any, from the wild including:—

i. Directing a census of all Elephants in captivity of private persons or Government departments and creation of an inventory of the same with their name, details of ownership certificate,microchip number and photograph.

ii. Directing inspection and verification of Certificate of  Ownerships of all Elephants in captivity and in case there is no Certificate of Ownership, to either issue a provisional Certificate of Ownership or confiscate the Elephant after carrying out necessary inspection and verification of the history and source of the Elephant.

iii. Directing a proper DNA sequencing for new offspring to be conducted so as to identify and prevent capture of young Elephants from the wild.

b. We do hereby appoint a High-Powered Committee (HPC) under the Chairmanship of Hon'ble Shri Justice Deepak Verma (Former Judge, Supreme Court of India):

…….

c. The Chairman may also consider taking assistance of the Chairman, Animal Welfare Board of India for the purposes of the HPC.

d. All other members of the HPC shall render all assistance and for that purpose shall use all powers vested in themincluding taking assistance of other officers of their respective departments as directed by the Chairman and also to take assistance of the local police as and when necessary, to enable the HPC to carry out the functions requisitioned by this order.

e. The members of the HPC shall carry out a thorough and detailed physical inspection of the Trust. They shall be entitled to access and inspect all areas and facilities of the Trust. They shall be entitled to access and inspect all documents of the Trust. They shall also be entitled to interview and question the staff and officers of the Trust.

The HPC is requested to carry out the inspection at the earliest and in any case within 10 days from the date of this order.

f. The respondent No. 3 is directed not to interfere with or restrict the members of the HPC from carrying out their inspection in any manner that they deem fit. The Chairman shall be entitled to take assistance of as many professionals, including photographers, videographers, vets, architects as he deems fit, for the purpose of the inspection.

g. The respondent No. 3 shall render all assistance and provide all necessary arrangements as requisitioned by the Chairman of the HPC for the purpose of the inspection.

h. The Chairman of the HPC may direct formation of one or more groups consisting of at least 3 members (of which at least one should be from the HPC and other experts) to carry out a physical inspection at the current location of the 23 Elephants and submit factual findings on such questions as the Chairman may deem fit and proper including on the allegation that they are purported to be captured from the wild. Due regard would be had to the said factual findings in the report.

i. The HPC shall in the first instance make a report on the questions in paragraph 27 of this order and it shall endeavour to do the same within a period of two weeks from the date of communication of this order.

j. The Chairman of the HPC shall make a report and provide a copy of the same to all concerned preferably within aperiod of two weeks from the date of communication of this order.

k. The Chairman of the HPC shall then forward his recommendation Elephant-wise to the concerned Chief Wild Life Warden either recommending or not recommending the completion of the transfers, as the case may be.

l. In case the Chairperson of the Committee recommends that an Elephant or Elephants should not be transferred, then the concerned Chief Wild Life Warden shall take steps to either confiscate the Elephant or take an undertaking from the concerned owner that the Elephant shall be taken care of without any cruelty. In case where such undertaking is taken, the concerned Chief Wild Life Warden shall be bound to monitor the Elephant concerned in regular intervals and take further steps if necessary accordingly.

m. In cases where the Chairperson of the Committee recommends that an Elephant or Elephants be transferred to the camp of the respondent No. 3, the concerned Chief Wild Life Warden shall ensure that the transfer of the Elephant is undertaken in the most appropriate manner conducive to the Elephants and further the concerned Chief Wild Life Warden shall request the jurisdictional police to ensure smooth passage of the Elephant concerned. Such jurisdictional police shall be bound to render all assistance to ensure smooth passage of the Elephant concerned.

n. In case the Chairman of the HPC finds any other fault or discrepancy, he shall forward its report with necessary recommendation for taking necessary corrective steps or action to the Secretary, Ministry of Environment, Forest & Climate Change, Secretary, Forest Department of States of Gujarat, Tripura and Arunachal Pradesh as necessary or deemed fit by the Chairman of the HPC.

o. We direct that all police authorities, officers of forest and wild life departments, officers of the Central Zoo Authority, Project Elephant and officers of the Ministry of Environment, Forest and Climate Change, to whom a request for assistance is made by the Chairman of theHPC, shall be bound and liable to render all necessary assistance to the HPC and its members to carry out the functions of the HPC.

p. We direct that in order to bring about checks and balances in transfer of Elephants, the HPC shall continue to exist beyond these 23 Elephants and shall be consulted by the concerned Chief Wild Life Warden as the case may be before granting any travel permit. No travel permit shall be granted without the recommendation of the HPC. For such purpose, the HPC shall carry out the exercise it deems fit bearing in mind the observations made and the purport of the present order.

q. The costs of the HPC shall, insofar as the costs of the members are concerned, since their appointment is by designation, the costs shall be borne by their respective departments or employing authority.

r. The Chairman shall be entitled an honorarium of Rs. 5,00,000/- (Rupees Five Lakh Only) and costs of the Chairman shall be reimbursed to him by the respondent No. 3 without demur against a Bill of Costs. Such honorarium and costs shall be paid in advance and in any case before the Chairman sends his recommendations to the concerned Chief Wild Life Warden.

s. In case the Chairman of the HPC is required to carry out functions under this order beyond the afore-referred 23 Elephants, the Chairman shall convene the HPC with the same composition of respective designations and the HPC shall have the same functions as above and the HPC shall be provided with the same assistance as above.

t. In case the Chairman of the HPC is required to carry out functions under this order beyond the afore-referred 23 Elephants, entitled to an honorarium of Rs. 100,000/- (Rupees One Hundred Thousand Only) and reimbursement of costs in the same manner as above.”

2. Later, in its judgment dated 3 March 2023, reported as Muruly M S vs. State of Karnataka, a two-Judge Bench of this Court expanded the remit of the Committee constituted by the High Court of Tripura to confer a pan- India status.

3. In view of the expanded ambit of the Committee, this Court directed that the Chief Wild Life Wardens of the States would be co-opted as members of the Committee in place of the Chief Wild Life Wardens of the States of Tripura and Gujarat.

4. We have heard Mr Gopal Sankaranarayanan, senior counsel appearing on behalf of the applicants and Mr Vikramjit Banerjee, Additional Solicitor General for the Union of India. Mr Harish N Salve, senior counsel seeks intervention on behalf of the Trust.

5. Mr Gopal Sankaranarayanan, senior counsel submitted that the remit of the HPC should also cover the following aspects:

(i) Duration of ownership certificates in relation to elephants;

(ii) Enquiring into the capacity of the facility where the elephants are proposed to be transferred;

(iii) Monitoring of the health and age of the elephants;

(iv) Monitoring the facilities for transportation; and

(v) The need to shift elephants.

6 The HPC contains experts with domain knowledge. The Chairperson of the HPC is permitted Committee is permitted to co-opt an expert specifically in the area of the rehabilitation and care of elephants.

7 The remit of the HPC would comprehensively cover all aspects including those which are sought to be raised on behalf of the applicants as notedabove. In other words, all relevant aspects are entrusted to the decision making process of the HPC.

8 With the above directions, we dispose of the application.

(emphasis supplied by us)"

8. We next reproduce paragraph 7 to 10 of the earlier decision of the Hon’ble Supreme Court in M.S Muruly, referred to in paragraph 2 of the above quoted portion;

7. Our attention has also been invited to a reasoned and detailed judgment dated 07.11.2022 passed by the Tripura High Court in Writ Petition (Civil - PIL) No. 17 of 2022 seeking a direction restraining transfer and transportation of captive bred elephants from Northeast India and in particular from the States of Tripura and Arunachal Pradesh to the elephant camp of respondent no. 3. The High Court of Tripura, while declining to grant relief prayed by the petitioner therein, constituted a High Powered Committee (for short ‘HPC’) headed by the retired Judge of this Court, namely, Hon'ble Mr. Justice Deepak Verma, as its Chairman, and Members (by designation), which included Director General of Forests (Union of India), Head of Project Elephant Division (MoEF), Member Secretary (Central Zoo Authority of India), Chief Wild Life Warden (State of Tripura) for Elephants from State of Tripura and Chief Wild Life Warden (State of Gujarat). The said order further provides that the Chairman of the HPC shall co-opt an expert having experience of Elephants as a Member of the Committee and the Chairman may also consider taking assistance of the Chairman, Animal Welfare Board of India. Various well thought of directions were issued for the smooth functioning, powers, jurisdiction and assistance to be provided to the said HPC.

8. Though the scope and jurisdiction of the High Powered Committee was limited by the High Court to transfer of the elephants from Northeast part of the country to the elephant camp of respondent no. 3, we see no reason not to extend it to Pan India, particularly, when by extending the jurisdiction of High Powered Committee at Pan India level will not only serve the real public interest and would advance the cause of welfare, care and rehabilitation of wild animals, but will also curb the filing of frivolous PILs before different High Courts by busy bees.

9. In view of aforesaid facts and circumstances, we deem it appropriate to extend the jurisdiction and scope of High Powered Committee as constituted by the High Court of Tripura, with the modification that the Chief Wild Life Warden(s) of the State(s) to which the issue relates will be the co-opted as Members of the said.

Committee in place of the Chief Wild Life Wardens of Tripura and Gujarat, throughout the territory of India, leaving it open to the Committee to conduct necessary checks and to undertake fact finding exercise in any pending or future complaint in this regard. The said Committee may also consider the request for approval, dispute or grievance, concerning transfer or import into India or procurement or welfare of wild animals by any rescue or rehabilitation centre or zoo, by taking assistance and co-operation whenever needed from all departments and authorities across India. We also direct that all complaints in this regard may be forwarded forthwith to the High Powered Committee for consideration and recommending appropriate action.

10. We further direct that all State and Central Authorities shall forthwith report seizure of wild animals or abandonment of captive wild animals to the Committee and the Committee shall be at liberty to recommend transfer of ownership of captive animals or of seized wild animals to any willing rescue centre or zoo for their immediate welfare, care and rehabilitation."

9. It is writ large that after the decision of the Tripura High Court forming the HPC viz. Respondent No. 2, the Hon’ble Supreme Court by its judgment (supra)expanded the scope and jurisdiction of the HPC to "Pan India" status to deal with all applications for transfer of elephants and other issues and grievances regarding transfer of wild animals. Thereafter the Hon’ble Supreme Court in the Order first quoted above further held that even issues such as, Duration of ownership certificates in relation to elephants, Enquiring into the capacity of the facility where the elephants are proposed to be transferred, Monitoring of the health and age of the elephants, Monitoring the facilities for transportation; and the need to shift elephants shall be matters which would stand comprehensively covered within the ambit of HPC as it contains experts with domain knowledge and even all relevant aspects in that regard, decision making process, would have been of HPC.

10. We cannot entertain the Petitioner’s argument that these Orders of the Hon’ble Supreme Court are per incuriam. According to us, these are fully binding on this Court in view of Article 141 of the Constitution of India. Even if we cajole this argument for a bit, we do not find how any part of the above Orders run counter to the 2012 Captive Elephant Rules. The Hon’ble Supreme Court has passed the above Orders after due consideration of the applicable laws with a view to ensure animal welfare and constituted the HPC as an expert body which can not only carry out fact finding but also provide resolutions based on expert advice available to it not just from expert members but also from its members who are high functionaries in the Central and State Forest Departments. We find no hinderance in the Respondent No. 2 deciding the application dated 28th December 2024 made by the Respondent No. 3. The said request is a generalized request seeking directions for the welfare of ill Elephants/wild animals.

11. According to us it is clear that the HPC has power and jurisdiction to deal with all applications for transfer of Elephants/wild animals and consider all issues and grievances in that regard on a "Pan India" basis which includes the State of Kerala.If any such application for transfer of any Elephant in the State of Kerala is made to the HPC or any grievance is raised before the HPC by any person, then the HPC is required to decide such application or grievance and take decisions and issue necessary directions in accordance with law. Such decisions or directions of the HPC are bound to be complied with by all authorities. The same is the purport of the Orders of the Hon’ble Supreme Court and they must be complied with in both letter and spirit.

12. With these observations this Petition is dismissed with no orders as to costs.