WP(C) Nos. 28255 of 2011 (S), 13430, 30510 of 2008, 30792 of 2011, 12302, 14210, 19005 of 2014, 17958, 18374, 26164, 28720 and 29543 of 2015. Case: M.R. Ajayan Vs State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | WP(C) Nos. 28255 of 2011 (S), 13430, 30510 of 2008, 30792 of 2011, 12302, 14210, 19005 of 2014, 17958, 18374, 26164, 28720 and 29543 of 2015 |
| Counsel | For Appellant: Shaijan C. George, John Vipin, S. Rekha Kumari and Sajitha George, Advs. and For Respondents: Girija Gopal, Special Government Pleader |
| Judges | Ashok Bhushan, C.J. and A. M. Shaffique, J. |
| Issue | Constitution of India - Articles 14, 15, 16, 17, 19, 21, 246, 246(2), 254, 265, 29, 48, 48A, 51A, 51A(g), 51A(g)(h); Kerala Municipality Act, 1994 - Sections 435, 436, 437, 438; Prevention of Cruelty to Animals Act, 1960 - Sections 11, 11(3)(c), 11(1), 11(1)(a), 11(1)(l), 11(3), 11(3)(a), 11(3)(b), 2(h), 22, 28, 3, 38, 38(1), 38(2), 38(2)(ea), ... |
| Judgement Date | November 04, 2015 |
| Court | High Court of Kerala (India) |
Judgment:
Ashok Bhushan, C.J.
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This group of Writ Petitions raising common issues have been heard together and are being decided by this common judgment. All the Writ Petitions have been filed as Public Interest Litigations. The Writ Petitions can be divided into two groups. First group consists of Writ Petitions raising grievance of common man residing in different Corporations, Municipalities and Panchayats who is affected by the menace caused by stray dogs. Writ Petitions cite various instances where stray dogs have bitten small children, old men and even young persons, some of them subsequently died of rabies. Petitioners pray that the local authorities may remove/destroy stray dogs to save the common man from their furry. W.P(C) No. 12302 of 2014, W.P(C) No. 28255 of 2011, W.P(C) No. 17958 of 2015, W.P(C) No. 14210 of 2014, W.P(C) No. 28720 of 2015, W.P(C) No. 19005 of 2014, W.P(C) No. 18374 of 2015, W.P(C) No. 29543 of 2015 and W.P(C) No. 30792 of 2011 which are included in the second group, belong to this group. The second group of Writ Petitions consists of 3 Writ Petitions, i.e., W.P(C) No. 13430 of 2008, W.P(C) No. 30510 of 2008 and W.P(C) No. 26164 of 2015. These three Writ Petitions have been filed by registered Societies/Trust which have been constituted to prevent cruelty to animals and to assist the administration to take action against those who commit cruelty to animals. Petitioners object to the killing of stray dogs in the State by the Local Authorities. Petitioners have further prayed for direction to the respondents to implement the provisions of Animal Birth Control (Dog) Rules, 2001 (hereinafter referred to as "the 2001 Rules").
FACTS AND PLEADINGS
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To appreciate the issues raised in all these cases it is necessary to note the facts and pleadings raised in some of the Writ Petitions. Writ Petition No. 28255 of 2011 is being treated as the leading case of the first group whereas W.P(C) No. 26164 of 2015 is being treated as the leading case representing the second group.
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W.P(C) No. 28255 of 2011 (M.R. Ajayan v. State of Kerala and others) has been filed by the petitioner, a journalist by profession and human right promoter raising concern of recurring attacks from stray dogs in Vypin Island. Different instances as reported in the newspapers of stray dog bite have been narrated. News item published in Metro Manorama dated 20.10.2011 and 21.10.2011 have been referred to wherein newspaper reported about serious injuries suffered by a small child on his neck on account of stray dog bite. In the Writ Petition reference of various other instances of dog bites and details of various incidents of stray dog menaces have been referred to. Instances of domestic animals bitten by stray dogs have also been mentioned. In this Public Interest Litigation various individual complaints sent to this Court to treat as Public Interest Litigation have also been tagged under orders of the Chief Justice. Several individuals have also filed applications stating that people of the State are now living under the fear of stray dogs. Streets, lanes, passages of houses, bus-stand, railway station, school compound, hotel premises and other public places are crowded with wandering dogs who often become aggressive. They unexpectedly attack the pedestrians and make road accidents to the riders especially two wheelers. Petitioners complain that no measures are being taken by the local authorities to seize and kill the stray dogs. The local authorities are abdicating their statutory duties of removing and destroying the stray dogs. Petitioners allege that Kerala which is known as "God's own country" has now become "Dog's own country". There are more than 12 lakhs wandering dogs in public places. In every 50 metres wandering dogs can be seen on road sides and near heap of garbage which attracts stray dogs. It is further stated that one of the main reasons that hamper elimination of stray dogs is the involvement of group, so called pet lovers or animal rights protection agencies, like animal welfare institutions, etc., who obstruct killing of stray dogs by local authorities. Human life is more valuable than life of a dog. There is no proper implementation of the 2001 Rules. Hence no effective check have been made on the ever increasing population of stray dogs. In the Writ Petition the following prayers have been made:
"(i) To issue a writ of mandamus or any other appropriate writ or order directing respondent Nos. 1 to 6 to take all necessary immediate actions to destroy stray dogs in the State.
(ii) To issue a writ of mandamus or any other appropriate writ or order directing respondent Nos. 1 to 6 to implement the provisions of the Animal Birth Control (Dogs) Rules 2001 for an effective result in long term basis.
(iii) To issue a writ of mandamus or any other appropriate writ or order directing respondent Nos. 1 to 6 to initiate vaccination and sterilization drive in the State; and'
(iv) Grant such other relief as this Hon'ble Court deems fit and proper in the interest of justice."
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On an application, Sat Jeev Karuna Parivar Trust, has been impleaded as the additional 8th respondent to the Writ Petition. The Trust which got itself impleaded objects to the killing of stray dogs in inhuman way. It is pleaded by the Trust that Prevention of Cruelty to Animal Act, 1960 (hereinafter referred to as "the 1960 Act") and the 2001 Rules framed thereunder regulate the procedure and extend under which stray dogs can be eliminated. It is further pleaded by the Trust that the local authorities in exercise of the powers under the Kerala Municipality Act, 1994 (hereinafter referred to as "the 1994 Act") cannot kill the stray dogs and the Local Authorities are bound to follow the 1960 Act and the 2001 Rules. It is further stated that the issue is engaging the attention of the Apex Court in Special Leave Petition No. 691 of 2009 arising from the judgment and order of the Full Bench of the Bombay High Court dated 19.12.2008 in ASWP No. 6257 of 2006 (Animal Welfare Board of India v. PEST. & Others). The judgment of the Bombay High Court has been stayed by the Apex Court by its order dated 23.07.2009.
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The Animal Welfare Board of India has filed a counter affidavit. In the counter affidavit it is pleaded that various issues arising from the judgment of the Bombay High Court is engaging attention of the Apex Court in SLP No. 691 of 2009. The AWBI has pleaded that had the removal/culling could control dog population, so many stray canines would not still be around. The killing of dogs as a means to control dog population has not worked anywhere in the world. Guidelines framed by the World Health Organization advocates systematic sterilization programme in place of mass killing/removal for reducing dog population. The 2001 Rules reflects this progression in thought. The local authorities cannot indiscriminately kill dogs in exercise of the power under the Kerala Municipality Act or the Kerala Panchayat Act, 1994.
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W.P(C) No. 12302 of 2014 (Basil Attipetty @ Basil A.G. v. Local Self Government Department and Others) has been filed by a practicing Advocate of the High Court raising the issue of attack of stray dogs which according to the petitioner is alarmingly increasing day by day. The school children, women and other persons are repeatedly attacked by the stray dogs spread in the local regions of the Panchayats, Municipalities and Corporations. Incidents of dog bites on small children and adults have been narrated in the Writ Petition. Reference of attack of stray dog on a child having 3 1/2 years as reported in Malayala Manorama daily dated 03.05.2014 has been annexed with photographs. In the Writ Petition details of human beings dying of rabies after dog bite has been brought on the record. It is pleaded that in Ernakulam District alone in the year 2013 there has been instances of 4019 stray dog bites. Petitioner pleads that stray dogs be removed from public street by the local authorities to save valuable life of the human beings. Petitioner refers to a complaint submitted to the Grama Panchayats and Corporations. Petitioner also relies on the Division Bench judgment of this Court in Animal Welfare Board of India and another v. Ombudsman for Local Self Government Institutions and others (2006 KHC 561) where the Division Bench has held that there has to be more concern with the life of human being than that of stray dogs. The right to live as enshrined under Article 21 of the Constitution of India is a fundamental right and it would take precedence over Dog Rules. In the Writ Petition the following prayers have been made by the petitioner:
(i) direct the 1st respondent to take measures to remove the stray dogs from public places and to have a fearless life from the menace of stray dogs in public places throughout Kerala.
(ii) direct the 1st respondent to issue a circular to all the Secretaries of Local Self Government Departments to the effect that the Secretaries of Local Self Government Institutions will be liable for stray dog bites in Kerala in their respective jurisdiction.
(iii) direct the 1st respondent to file a detailed report before this Honourable Court with regard to the steps taken by the department to catch and remove the stray dogs from the street and public places in Kerala.
(iv) direct the 1st respondent to pay adequate compensation to the victims of stray dog bites in Kerala.
(v) grant such other reliefs as are deem just and necessary in the facts and circumstances of the case.
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Counter affidavits have been filed in the Writ Petition by various respondents including Corporations, Grama Panchayats and Director of Kerala Medical Services Corporation.
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The Cochin Corporation in its counter affidavit stated that the Corporation has identified a place at Brahmapuram where a multi speciality Veterinary Hospital was constructed which has become operational since 28.05.2015. The said hospital has...
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