IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWPIL No. 3/2009 Reserved on:.17.12.2009 Decided on:12.3. 2010. Court on its own motion ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner : Mr. Rajiv Jiwan, Amicus Curiae. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Additional Advocate General, for respondents No. 1 to 3. Mr. Shrawan Dogra, Advocate, for respondent No. 2. Mr. Neeraj Gupta, Advocate, for Animal Welfare Board of India. Rajiv Sharma, J. The Court has taken suo motu cognizance to check and arrest the menace of stray dogs within the territorial jurisdiction of Municipal Corporation, Shimla on the basis of news item, which appeared in the daily Edition of “Amar Ujjala” dated 1.7.2009. The association of dog with the man is well known fact. Stray dogs tend to live in groups in a particular locality. They are familiar with their surroundings and they know Whether the reporters of the local papers may be allowed to see the Judgment? 2 how to find out the food in a particular locality. Of late, the behaviour of stray dogs has become very aggressive. There are instances of frequent dogs biting. The young children and women are primarily attacked/bitten by the stray dogs. The price of vaccination after dog bite is time consuming and expensive. The Court can take judicial notice of the fact that some of the persons cannot afford the treatment. The State Legislature has enacted the Act called “Himachal Pradesh Municipal Corporation Act. 1994”. Section 304 of the Act reads thus: “304. (1) The Corporation may, by bye-laws made in this behalf, (a) require the registration by the registering authority appointed by the Commissioner in this behalf of all dogs kept within the municipal areas; (b) required that every registered dog shall wear a collar to which shall be attached a metal token to be issued by the registering authority, and fix the fee payable for the issue thereof; (c) require that any-dog which has not been registered or which is not wearing such token shall, if found in any public place be detained at a place set apart for the purpose ; and (d) fix the fee which shall be charged for such detention and provide that any such dog shall be liable to be destroyed- or -otherwise disposed of unless it is claimed and the fee in respect thereof is paid within one week. (2) The Commissioner may, (a) cause to be destroyed or to be confined for such period as he may direct, any dog or other animal which is, or is reasonably suspected to he, suffering from rabies, or which has been bitten by any dog or other animal suffering or suspected to be suffering from rabies ; (b) by public notice direct that, after such date-as may be specified in the notice, dogs which are without 3 collars or without marks, distinguishing them as private property and are found straying on the streets or beyond the enclosures of the houses of their owners, if any, may be destroyed and cause them to be destroyed accordingly. (3) No damages shall be payable in respect of any dog or other animals destroyed or otherwise disposed of under this section. (4) No one, being the owner or person incharge of any dog, shall allow it to be at large in any public street or public place without being muzzled and without being secured by a chain lead in any case in which (a) he knows that the dog is likely to annoy or intimidate any person ; (b) the Commissioner has, by public notice during the prevalence of rabbies, directed that dogs shall not be at large without muzzled and chain leads. (5) No one shall (a) allow any ferocious dog which belongs to him or is in his charge to be at large without being muzzled; or (b) set on or urge any dog or other animal to attack, worry or intimidate any person ; or (c) knowing or having reason to believe that any dog or animal belonging to him or in his charge has been bitten by any animal suffering or reasonably suspected to be suffering from rabbies, fail or neglect to give immediate information of the fact to the Commissioner or give information which is false.” The Central Government has also framed the Rules called the Animal Birth Control (Dogs) Rules, 2001. Rule 2 (b) defines “Animal Welfare Organization” Rule 2(e) defines “Local Authority” and Rule 3 prescribes that all the dogs shall be classified: (i) Pet dogs. (ii) Street dogs. 4 Rule 4 requires the local authority to constitute a committee. The functions of the committee are defined under Rule 5. Rule 6 provides for the obligation of the local authority. Rule 6 reads thus: 6. Obligations of the local authority : (1) The local authority shall provide for (a) establishment of a sufficient number of dogs pounds including animal kennels/shelters which may be managed by animal welfare organizations; (b) requisite number of dog vans with ramps for the capture and transportation of street dogs; (c) one driver and two trained dog catchers to be provided for each dog van; (d) an ambulance cum clinical van to be provided as mobile center for sterilization and immunization; (e) incinerators to be installed by the local authority for disposal of carcasses. (f) periodic repair of shelter or pound. (2) If the Municipal Corporation or the local authority thinks it expedient to control street dog population, it shall be incumbent upon them to sterilize and immunize street Dogs with the participation of animal welfare organizations, private individuals and the local authority. (3) The animal welfare organizations shall be reimbursed the expenses of sterilization/immunization at a rate to be fixed by the Committee on fortnightly basis based on the number of sterilization/ immunization done.” Rule 7 prescribes the method of capturing/ sterilization/ immunization/ release of dogs. Rule 9 provides euthanasia of street dogs. The Animal Birth Control Programme (For Stray Dogs) has been approved by the Executive Committee of the Animal Welfare Board of India in its meeting held on 13th January, 2001. It deals with organizational aspects including catching of dogs, handling of critically ill/rabid dogs, pre- operative observation and maintenance of records. Paragraph 5 thereof 5 deals with collaboration and role of different agencies. It will be apt at this stage to highlight the role of Municipal Corporation and State Government provided under the Animal Birth Control Programme (For Stray Dogs) provided under para V (b). Para V (b) reads thus: “(b) Role of Municipal Corporations: The Role of Municipal Corporation has the most important and leading role to play and a statutory duty to perform in the ABC programme. Therefore, the Municipal Corporation should be requested to provide the land buildings for ABC Centers, Dog catching Vans, free water and electricity at the buildings, an Ambulance cum clinical Van and incinerators. The NGOs may also be reimbursed the expenses of sterilization/immunization by the Municipal Corporations at a rate fixed by the Monitoring Committee. (c ) Role of State Governments: The State Government can help the AWOs by providing the services of the Veterinary Surgeons/Hospital and medical facilities to the AWOs in the project.” Mr. Rajiv Jiwan has vehemently argued that the respondents are remiss in discharge of their statutory duties, which is leading to increasing population of stray dogs. He then contended that it is duty cast upon the respondents to ensure that there are no stray dogs in the territorial jurisdiction of Municipal Corporation. He lastly contended that boy, namely, Master Arnav Mazta bitten by stay dogs should be compensated by respondent No.2-corporation. Mr. R.K. Bawa, learned Advocate General and Mr. Shrawan Dogra have argued that all out efforts are being made to control the menace and nuisance caused by the stray dogs. Mr. Dogra has also argued that Municipal Corporation, Shimla has taken up the matter with the State Government for the release of necessary funds for the construction of Shelters/Ponds etc. However, the funds have not been released. 6 We have also permitted Animal Welfare Board of India to intervene in the matter. Mr. Neeraj Gupta has adopted the arguments of Mr. Shrawan Dogra and has also relied upon the Animal Birth Control (Dogs) Rules, 2001 and Animal Birth Control Programme (For Stray Dogs). We have heard the learned counsel for the parties and have gone through the pleadings carefully. It is the statutory duty cast upon the Municipal Corporation, Shimla to ensure that there are no stray dogs in Shimla town. Section 304 of the Municipal Corporation Act, 1994 provides that the Corporation may frame bye laws for the registration of the dogs and fix the fee etc. Mr. Shrawan Dogra has argued that the thrust of the Municipal Corporation is to sterilize the dogs to control their population and steps have been taken to provide temporary Shelters to the dogs. The steps being taken by the Municipal Corporation, Shimla are laudable. However, the fact of the matter is that the Municipal Corporation, Shimla has to play very important role as per the provisions of the Animal Birth Control (Dogs) Rules, 2001. It is the primary duty of the Municipal Corporation, Shimla to constitute a Committee as per Rule 4 and the functions of the committee are stipulated, as noticed above, in Rule 5. It is an obligation of the Municipal Corporation to establish sufficient number of Dogs’ Pounds, including Kennels/ Shelters to be managed by Animal Welfare Organizations and also to provide requisite number of dogs’ Vans with ramps for the capture and transportation of street dogs, one driver and two trained dog captures are to be provided for each dog Van and an Ambulance-Cum-Clinical Van is to be provided as Mobile Center for sterilization and immunization. It is also the duty cast upon the Municipal Corporation as per Sub-rule (2) of Rule 6 to sterilize and immunize street dogs with the participation of Animal Welfare Originations/Private individuals and the local authority. The method of capturing/sterilization 7 has been provided under Rule 7. Till date, the Municipal Corporation, Shimla has not established sufficient number of Dogs’ Pounds, including Kennels/Shelters. The Corporation cannot take plea that it does not have the funds. The funds are to be raised by the Municipal Corporation, Shimla as per the Municipal Corporation Act, 1994. Even as per the Animal Birth Control Programme (For Stray Dogs), the Municipal Corporation is required to provide land buildings for ABC centre, dog catching vans, free water and electricity at the buildings, an ambulance- cum-clinical van and incinerators. The NGOs are also required to reimburse the expenses of sterilization/immunization by the Municipal Corporation at a rate fixed by the Monitoring Committee. In view of the rule position discussed hereinabove, it is the duty cast upon the Municipal Corporation, Shimla to ensure that Shimla town is kept free from stray dogs. We do not approve half-heartedly attempts made by the Municipal Corporation, Shimla to control the menace of stray dogs. The stray dogs roam in streets of Shimla town in packs. There is consistent threat to large section of society. They tend to destroy the ambience of town. The tourists come to Shimla not to be harassed by the stray dogs. The menace of the dogs has also not been controlled by the Municipal Corporation, Shimla even on prestigious roads like, Mall Road, Ridge etc. The dogs besides being nuisance are also eye sore since some of them are afflicted with skin disease. The State Government has also to pay an important role to assist the Municipal Corporation in controlling population and menace caused by the stray dogs. The Court had directed the State Government vide order dated 17.9.2009 to look into the demand raised by the Municipal Corporation, Shimla to defray the expenses to be incurred for the establishment of dogs’ pounds etc. The learned Advocate General has apprised the Court on 28.10.2009 that the matter was under consideration 8 with the Finance Department. The Court had directed the State Government to take decision within a period of three weeks on 28.10.2009. The learned Advocate General apprised the Court on 30.11.2009 that application for modification of previous orders has been filed. The respondent-State filed CMP No. 25/2009 for modification of earlier orders dated 16.7.2009, 17.9.2009 and 28.10.2009. The CMP was dismissed by this Court on 10.12.2009. It has come on record that the matter was discussed in the meeting held under the Chairmanship of Additional Chief Secretary (Urban Development) to the Government of Himachal Pradesh on 3.11.2009. The following actions were agreed by the Committee on 3.11.2009: (1) “It was decided in view of the lack of information a letter from Government be written to the Animal Welfare Board of India to intimate about the animal behaviour of dogs when in pounds & to share precedent/ permanent solutions of this nature as well as prescribed space norms for dog pounds for healthy stray dogs. A team from MC Shimla could visit the places, intimated by the Animal Welfare Board of India to study the practice and to submit the official report for a general/administrative opinion of the Government. (2) It was further decided that the Commissioner, MC Shimla will explore the possibility for locating the site/land for establishment of dog pounds/shelter and also write to the same NGOs/Animal Welfare Organization to find out how they are implementing the provisions of the Animal Birth Control (Dogs) Rules, 2001, and whether they would take over this job. (3) It was observed that in view the huge recurring/non- recurring expenditure it may not be practically feasible to implement the orders of the Hon’ble High Court. In fact it was indicated that the Rs. 2.00 crores was only a start, but that the total demand would be 9 Rs. 6.00 crores (recurring and non recurring). It was also informed by the Commissioner MC Shimla that the annual grant of the MC Shimla is much less than the recurring expenditure involved in the establishment and maintenance of dog pounds/shelters”. We have gone through the actions suggested by the Committee. The Committee has scuttled the main issue by adopting hyper technical approach. The Committee was required to deliberate on this important issue and to suggest the ways and means to control the population and menace of stray dogs. The fact of the matter is that the State Government has not taken any positive steps to help the Municipal Corporation Shimla to get rid of this problem. We are conscious of the fact that the Municipal Corporation, Shimla has asked for huge amount of Rs. 2 crore for the purpose of setting up of dogs’ Pounds. The Municipal Corporation, Shimla should have taken a pragmatic approach while raising the demand with the State Government. We are of the view that a sum of Rs. 50 lacs is sufficient for the establishment of dogs’ Pounds/Shelters/Kennels. A school going boy was bitten by stray dogs. He was bitten at 12.30 noon. The boy received injuries on head, stomach, back and legs. He was saved by local people from the clutches of dogs as per news item. Thereafter he was taken to Indira Gandhi Medical College and Hospital, Shimla. He had to be admitted in a hospital and was provided necessary medical aid. He also remained under trauma and agony after bitten by stray dogs. In case the respondent-corporation had taken necessary precautions, this incident could be avoided. Mr. Rajeev Jiwan has also brought to the notice of the Court a similar incident whereby another student was bitten by a stray dog. It is in these circumstances, we hold the Municipal Corporation, Shimla responsible for not taking preventive measure to check the menace 10 caused by stray dogs. The functions enshrined under the Law are required to be discharged by all the statutory authorities. We had directed the Municipal Corporation, Shimla to deposit a sum of Rs. 1 lac after a boy was beaten by stray dogs. Mr. Shrawan Dogra has argued that the boy has not approached this Court and consequently, no compensation can be awarded to him. This question is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Chairman, Railway Board and others versus Chandrima Das (Mrs) and others, (2000) 2 SCC 564. Their Lordships have held as under: “11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law.” Consequently, we held that the boy is entitled to compensation of Rs. 1 lac on account of negligence on the part of Municipal Corporation, Shimla to control menace of stray dogs. The boy required prolonged treatment and was traumatized and agonized after being bitten by stray dogs. Accordingly, in view of the observations made hereinabove, the present petition is disposed of by issuing the following mandatory directions: 1. We direct respondent No.2- Municipal Corporation, Shimla to ensure that the Shimla 11 town is made free from stray dogs within a further period of six months. 2. The Commissioner, Municipal Corporation, Shimla shall be personally liable to implement direction No. 1. Appropriate proceedings will be initiated against him, if he fails to implement direction No. 1 in letter and spirit. 3. Respondent No. 2 is directed to provide dogs’ Pounds/Shelters/Kennels within a period of six months from today. Respondent No.2 is further directed to ensure that all the stray dogs in Shimla town are sterilized as per the procedure. 4. Respondent No. 1 is directed to provide necessary funds as indicated hereinabove, for the purpose of establishment of dogs’ Pounds/Shelters/Kennels within a period of one month from today. 5. A sum of Rs. 1 lac deposited in the Registry of this Court is directed to be released in favour of Master Arnav Mazta son of sh. Yashwant Mazta resident of Padam Niwas, Dhingu Bawdi, Sanjauli, Shimla within a period of three weeks from today. This amount shall be kept in fix deposit till the boy attains the age of majority. (R.B. Misra) Judge. (Rajiv Sharma), Judge. 12.3.2010 *awasthi*