Calcutta High Court: In a Public Interest Litigation (PIL) filed by Cape Foundation highlighting the illegal transportation of elephants from the State of West Bengal, the Division Bench of Ravi Krishnan Kapur*, Arindam Mukherjee, JJ, held that the ownership of those elephants vested with the State of Bengal and directed the State to take steps to ensure that no further incidence of illegal transportation of elephants takes place.
Background
The PIL filed by a registered trust named ‘Cape Foundation’ raised the issue of well-being and protection of some captive elephants which, although were registered in West Bengal, but were now in the State of Bihar and some other States.
By an order dated 19-7-2025, a Coordinate Bench of the Court ordered the Chief Conservator of Forests Wildlife (Respondent 2) to take appropriate steps to ensure that the elephants were brought back to West Bengal. Since the respondents failed to comply with that order, an order of non-compliance was passed on 7-9-2022 directing the respondents to purge their contempt.
Respondent 5, who was the Mahant of an Ashram where three of the elephants were kept, challenged the order dated 19-7-2019, claiming that he was the rightful owner of those elephants and that he had not been heard before the said order was passed.
Respondent 5 claimed that the three elephants, Bhola, Suman and Basanti, had been originally working in the Natraj Circus. Subsequently, Natraj Circus transferred the ownership of the elephants in favor of Respondent 5 via a gift deed dated 12-10-2017.
The present PIL alleged that Respondent 5 obtained the elephants illegally, kept them in gruesome conditions, and exploited them commercially.
Analysis, Law and Decision
The Court noted that the gift deed through which Respondent 5 had claimed ownership of the elephants was null and void. The original ownership certificate issued by the Central Zoo Authority in favor of Natraj Circus had expired in 2013 and there was nothing on the record to show that the same had ever been renewed. The transfer by way of a gift deed had not been reported to the Chief Wildlife Warden. The gift deed was executed 4 years after the expiry of the ownership certificate and thereafter, applying the legal principle of nemo dat quod non habet, the gift deed became non-est and void. Additionally, the failure of Natraj Circus to provide basic amenities for taking care of the animals resulted in revocation of ‘zoo’ status accorded to it thereby extinguishing any legal right that might have vested with it.
The Court observed that the elephants in possession with Respondent 5 were deemed to be ‘captive animal’ in terms of Section 2(5) of the Wild Life (Protection) Act, 1972 (‘the Act’) and belonged to the State of West Bengal.
Further, the Court noted that a conjoint reading of Sections 39 and 40 of the Act made it evident that no person could acquire, receive, keep in his control, custody or possession any animal under Schedule I or Part II of Schedule II of the Act without an ownership certificate and prior permission from the Chief Wildlife Warden. The Court stated that Respondent 5 was also in violation of Sections 43 and 48A of the Act, since the three elephants were transported without any prior permission from the Government of West Bengal.
Furthermore, the Court noted that Respondent 5 had failed to produce any record demonstrating that the well-being of the elephants like vaccination, feeding, treatment of diseases, walk or movement and work schedule was in accordance with the terms of the Guidelines for Care and Management of Captive Elephants issued by the Ministry of Environment & Forests, Project Elephant, dated 8-1-2008. On the contrary, Petitioner 2 had placed evidence that showcased the horrific conditions in which the elephants had been kept. The Court stated that,
“The spiked shackles, sharp spears and sticks used to tackle the elephants have inflicted several injuries on the elephants which remain untreated cannot be ignored. Similarly, the use of heavy chains and spiked bracelets to control them and tying three of their legs down for long hours on concrete floor is inter-alia in violation of the Section 11(1) of the Prevention of Cruelty to Animals Act, 1960 and unacceptable.”
A Report dated 12-4-2022 filed by Chief Wildlife Warden, West Bengal highlighted the various ways in which the elephants had been mistreated. Photographs indicated obesity issues, chronic foot rots, deformations and discolorations formed on the foot, and unhealed wound marks caused by sharp spiked bracelets put around their feet to restrict movement. The videos and photos also suggested that sharp spears and ankus had been used to induce fear to control the elephants — a practice prohibited by law.
The Court opined that the elephants had been kept in captivity for most of their lives and deserved to spend the rest of their lives in a natural habitat suitable and beneficial for them. It is the constitutional right of all living beings to live with honor and dignity, and Article 51A(g) of the Constitution recognized the requirement to have compassion for all living creatures.
Accordingly, the Court held that Respondent 5 had no ownership rights in the elephants, and the elephants belonged to the State of West Bengal. The Court directed the State to take appropriate measures to ensure that such illegal or unlawful transfer of elephants from West Bengal to other States does not occur again. The State was directed to take measures at the borders to curb the illegal transportation of elephants outside the State.
[Cape Foundation v. State of W.B, WPA 19941 of 2018, decided on 23-6-2025]
*Judgement authored by- Justice Ravi Krishan Kapur
Advocates who appeared in this case:
For the Petitioner: Dhruba Ghosh, Biswanath Chatterjee, Ajeya Chowdhury, Sobhan Kumar Pathak, Advocates
For the Respondent: Partha Sarathi Deb Barman, Anindhya Sundar Das, Anup Dasgupta, Ratul Deb Banerjee, Sourojit Mukherjee, Sayed Ali Afzal, Suman Halder, Noelle Banerjee, Advocates
