Public Interest Litigation No. 36 of 2011, Notice of Motion (L) No. 160 of 2013, Chamber Summons No. 109 of 2012, Chamber Summons No. 109 of 2012 in Public Interest Litigation No. 36 of 2011 and Notice of Motion (L) No. 160 of 2013 in Public Interest Litigation No. 36 of 2011. Case: Animals and Birds Charitable Trust and Ors. Vs Municipal Corporation of Greater Mumbai and Ors.. High Court of Bombay (India)
| Case Number | Public Interest Litigation No. 36 of 2011, Notice of Motion (L) No. 160 of 2013, Chamber Summons No. 109 of 2012, Chamber Summons No. 109 of 2012 in Public Interest Litigation No. 36 of 2011 and Notice of Motion (L) No. 160 of 2013 in Public Interest Litigation No. 36 of 2011 |
| Counsel | For Appellant: Feroz J. Bharucha, Mayur Bhojwani and Hasan Farooqui i/by Manilal Kher Ambalal & Co. and For Respondents: Birendra Saraf, Senior Counsel and K.R. Punjabi, Adv. |
| Judges | Abhay Shreeniwas Oka and A. K. Menon, JJ. |
| Issue | Bombay Public Conveyances Act, 1920 - Sections 11, 11(1), 11(1)(a), 2, 22, 3, 35, 4, 5, 8, 9; Constitution of India - Articles 21, 48, 48A, 51A(g), 51A(h), 51A; Mumbai Municipal Corporation Act, 1888 - Sections 384, 394, 471 |
| Judgement Date | June 08, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
Abhay Shreeniwas Oka, J.
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By this Public Interest Litigation, the attention of this Court is invited to the plight of the horses and ponies used for victorias and horse carriages in the City of Mumbai. It is pointed out that the victorias/horse carriages are being used in the City of Mumbai only for joyrides and not as a mode of public conveyance. The attention of the Court is also invited to the conditions of horse stables in the City of Mumbai. The substantive prayer clause (A) of the Public Interest Litigation reads thus:
"(A) For a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, order or direction of this Hon'ble Court ordering and directing the 1st and 2nd Respondents herein to phase out and eventually prohibit the use of horses and ponies for carriages, joy rides, etc in the City of Mumbai as is ultra vires Article 51A(g) of the Constitution of India."
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There are other prayers made in the alternative. The prayers made in the alternative can be summarized as under:
(i) For issuing a writ of mandamus to initiate appropriate proceedings under Sub-section (4) of Section 394 and Section 471 of the Mumbai Municipal Corporation Act, 1888 (for short "the said Act of 1888");
(ii) For issuing a writ of mandamus directing the Municipal Corporation of City of Mumbai to initiate appropriate proceedings under Sections 394 and Section 471 of the said Act of 1888 against those individuals who keep the horses and ponies in contravention of the provisions of the said Act of 1888;
(iii) A writ of mandamus directing the Mumbai Municipal Corporation to initiate proceedings against the stables/sites where the horses and ponies are kept which do not have a valid licence;
(iv) For issuing a writ of mandamus directing the Mumbai Traffic Police and the State of Maharashtra to ensure that victorias/horse carriages which are not licensed under the provisions of the Bombay Public Conveyance Act, 1920 (for short "the said Act of 1920") are allowed to ply in the City of Mumbai;
(v) For issuing a writ of mandamus directing the Police Department and the State to ensure that before a horse is granted license to ply under Section 8 of the said Act of 1920, he is in a fit condition;
(vi) For issuing a writ of mandamus directing the Fourth Respondent (The Bombay Society for Prevention of Cruelty to Animals) to ensure that all horses and ponies are shoed in compliance with Rule 3 of the Prevention of Cruelty to Draught and Pack Animals Rules, 1965 (for short "the said Rules of 1965"); and
(vii) For issuing a writ of mandamus for ensuring compliance of Rules 6(i) and 6(iii) of the said Rules of 1965.
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The first Petitioner claims to be a Charitable Trust which is duly registered in New Delhi. The Second to Fourth Petitioners are the Trustees of the First Petitioner. The first Respondent is the Municipal Corporation of Greater Mumbai constituted under the Mumbai Municipal Corporation Act, 1888. The Second Respondent is the Mumbai Traffic Police and the Third Respondent is the State of Maharashtra. The Fourth Respondent is the Bombay Society for Prevention of Cruelty to Animals established under the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001. The Fourth Respondent has been charged with the duties and powers to aid of the Government, the Animal Welfare Board and the Local Authorities in enforcing the provisions of the Prevention of Cruelty to Animals Act, 1960 (for short "the said PCA Act"). The Fifth Respondent is the Animal Welfare Board of India set up under Section 4 of the PCA Act with the aim of promoting animal welfare. The sixth Respondent is the representative of the Licensed Carriage Owners and the Seventh Respondent is the representative of the Licensed Carriage Drivers. The Eighth Respondent is a proposed Society of Licensed horse carriage owners, horse owners, stable owners and attendants.
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There is a Chamber Summons being Chamber Summons No. 109 of 2012 filed by the People for the Ethical Treatment of Animals (India) (for short "PETA") for intervention. The said intervenors are supporting the Petitioners. The Chamber Summons No. 127 of 2012 has been filed by the People for Animals for intervention. Even the said Applicant is supporting the Petitioners. There is a pending Notice of Motion for grant of interim relief filed by the Eighth Respondent. The interim relief is of grant of permission to allow plying of victorias by the owners of the horses whose Applications for renewal of licenses are under consideration of the Second Respondent.
FACTUAL DETAILS AND AFFIDAVITS:
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It will be necessary to make a reference to the few factual aspects set out in the Public Interest Litigation.
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The First Petitioner made an Application under the Right to Information Act, 2005 seeking information about the licences granted to the stables of horses and ponies used for pulling the carriages and joyrides in the City of Mumbai. The information was furnished by the First Respondent Mumbai Municipal Corporation. The Municipal Corporation stated that a licence under Section 394 of the said Act of 1888 is issued for horses' stables. It was, however, contended that the subject of granting permission to keep the horses for entertainment/horse rides/joy carts does not come within the purview of the Public Health Department of the said Corporation. It was stated that the prosecutions have been lodged against the four horse stables from "D" Ward Office. It was stated that there were four horse stables existing in the City of Mumbai which are unlicensed for which the prosecutions have been lodged. The Municipal Corporation forwarded to the Petitioners special conditions which are incorporated in the licenses granted for keeping the horses. The Petitioners are relying upon the photographs annexed as Exhibits B-3, B-4 and B-5 taken at the stables at Nariman Point and Peela House. It is contended that in the said stables, the horses are consistently standing in their own dung for hours. It is stated that the dung is thrown into dustbins and is allowed to flow into the drains. It is pointed out that the stables are maintained in a very unhygienic condition. It is pointed out that the dung of the horses and ponies can cause tetanus on coming in contact with a human wound. It is pointed out that there is a violation of Section 471 as well as 384 of the said Act of 1888. It is pointed out in the Petition that the horse stables in the City of Mumbai are very cramped. The photographs have been annexed to show the cramped condition of the horse stables.
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It is pointed out that a majority of the horses and ponies used for carriages in the City of Mumbai do not have proper stables or a shelters to live in.
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The Petitioners have referred to the provisions of the said Act of 1920 and have contended that since 1973, no new licenses have been issued under the said Act of 1920 but only old licenses are being renewed. It is contended that under the said Act of 1920, if the Police Commissioner finds that any horse is unfit to ply, he may not only refuse to grant licence but also suspend the existing licence. It is contended that the survey conducted by the First Petitioner shows that 87% of the horses and ponies in three stables in the City of Mumbai suffer from various ailments and abnormalities. It is pointed out that no action is taken of suspension of licenses by the Police Commissioner by exercising the powers under the said Act of 1920. It is contended that 44 carriages have been plying in the City of Mumbai without obtaining a license under the said Act of 1920. It is pointed out that the licenses can be issued to horses used for carriages but there is no provision for grant of licenses for horses/ponies used for joy rides. It is pointed out that in contravention of the license conditions, more than three people are very often carried in the horse carriages/victorias.
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Various instances of cruelty to horses and ponies used for victorias and joyrides have been set out in the Petition. A large number of photographs have been annexed to the Petition. It is pointed out that the horses are forced to overwork and they regularly suffer from various injuries. The instances of accidents suffered by the horse carriages/victorias used for joyrides are pointed out in which the horses have suffered injuries. It is pointed out that the standards laid down under the said Rules of 1965 are violated. It is also pointed out that even the provisions of the Prevention of Cruelty to Animals (Licensing of Farriers) Rules, 1965 have been violated. It is pointed out that no horse or pony is registered under the Performing Animals (Registration) Rules, 2001. Various public safety concerns have been highlighted in the Petition. It is pointed out that the carriages drawn by the horses are used in congested streets having a very heavy vehicular traffic, as a result, there have been a large number of accidents in which the horses and people travelling in the carriages have suffered injuries.
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It will be necessary to make a reference to the stand taken by the various Respondents by filing reply. There is a reply filed by Shri Shashikant B. Bhandalkar, Senior Inspector of Police, serving in Public Land Conveyance Licence Branch at Mumbai. Reliance is placed on the Public Conveyance Regulations, 2009 enacted by the Commissioner of Police in exercise of the powers under Section 35 of the said Act of 1920. In Paragraph 9 of the said affidavit, it is stated that no new licenses are being issued since 1973 for plying hack victorias in the City and, therefore, number of victorias have gone down to 130 from about 800 in the year 1973. It is pointed out that the area and time restrictions have been imposed on the plying of victorias in the City of Mumbai. A chart showing the said restrictions has been annexed.
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There is an affidavit filed by Shri Suresh...
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