C.W.P. No. 15706 of 2010 1 In the High Court for the States of Punjab and Haryana at Chandigarh … C.W.P. No. 15706 of 2010 Date of decision: 16.11.2011 Naushad son of Sejnaj Petitioner Versus Union of India and others ..Respondents Coram: Hon’ble Mr. Justice M.M.Kumar Hon'ble Mr. Justice Rajiv Narain Raina Present: Mr. D.R.Sharma, Advocate for the petitioner. Mr. A.K.Bansal,Advocate for respondent No.1. Mr. Suvir Sehgal, Addl.A.G.Punjab for respondent No. 2 and 4 Mr. Anil Rathee, Addl.A.G.Haryana for respondent No.3 and 5 .. 1. To be referred to the reporters or not ? 2. Whether the judgment should be reported in the digest ? Rajiv Narain Raina,J. 1. The petitioner claims to be a resident of District Saharanpur in the State of Uttar Pradesh and says he is engaged in the business of transporting cattle including milch cattle, dry cattle and calves, both young and old. He says he buys cattle from Cattle Fairs traditionally held in different districts of the State of Punjab and transports them to different places within and outside the territories of Punjab and Haryana in trucks and goods carriers. He says that he and his agents travel the length and breadth of the State in the pursuit of their business and often face harassment on road at the hands of Government officials ‘some C.W.P. No. 15706 of 2010 2 reasonable’ and some not so; that he and his staff are subjected constantly to the rigours of law pertaining to cruelty to animals. In this harassment that he confronts he alleges that unscrupulous officials take undue advantage of Section 11(d) of the Prevention of Cruelty to Animals Act, 1960 (for short, the “Act”.) read with Transport of Animals Rules, 1978 promulgated under Section 38(2)(h) of the 1960 Act (for short the “Rules”). 2. He is here before this Court in the present petition filed under Article 226 of the Constitution of India praying that this Court should declare Section 11(2) falling under Chapter III of the 1960 Act and Rule 56 (C) of the 1978 rules as unreasonable. He claims that Rule 56(C) should be declared ultra vires Rule 50 and Section 11(d). Before we embark upon the inquiry sought from this Court, it would be apposite to notice the text of Section 11(d) which reads: “Treating animals cruelly: (1) If any person - (d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or he shall be punishable, “in the case of a first offence, with tine which shall not be less than ten rupees but which may extend of fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, which shall not be less than twenty five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.” 3. He complains that the words, “unnecessary pain and suffering” as used in Section 11(d) above have not been defined in the Act or Rules and that its meaning should be made clear by re-phrasing the words. He claims that the expression “unnecessary pain and suffering” in Section 11 C.W.P. No. 15706 of 2010 3 is so broad in the context of transport of animals that it leaves large room for unscrupulous officials to line their pockets by waylaying their transport vehicles plying to and fro in their business pursuits. He says that the real rub lies in Rule 56 (C) which prohibits carriage by road of no more than six cattle in a ‘goods vehicle’. Since the petitioner does not use railways for transportation, he is not concerned with Rule 55(a) and limits his attack, save and limited to Rule 56 (C) read with rule 50 and section 11. 4. To proceed with the examination of the issues raised in this petition, it would be necessary to first notice Rule 56 of the Act in its entirety. Rule 56 is reproduced as under:- “56. When cattle are to be transported by goods vehicle, the following precautions are to be taken namely- (a) Specially fitted goods vehicles with a special type of tail board and padding around the sides should be used. (b) Ordinary goods vehicles shall be provided with anti-slipping material, such as coir matting or wooden board on the floor and the superstructure, if low, should be raised. (c ) no goods vehicle shall carry more than six cattle. (d) each goods vehicle shall be provided with one attendant. (e) while transporting, the cattle, the goods vehicle shall not be loaded with any other merchandise; and (f) to prevent cattle being frightened or injured, they should preferably, face the engine.” (underlined for emphasis) 5. Rule 50 lays down “That the average space provided per cattle in Railway wagon or vehicle shall not be less than two square metres”. The petitioner says that there is mathematical clarity in Rule 50 but that is lacking in Rule 56 as “goods vehicle” has not been defined either in the 1960 Act or in the 1978 Rules. In the petition, he co-relates this C.W.P. No. 15706 of 2010 4 absence of definition of “goods vehicle” with the size and dimensions and chassis of different goods vehicles or trucks and goods carriers plying on roads range from 3600 MM into 4200 MM to 11305 MM into 2440 MM. He has produced the internet down load of Tata Vehicles (P1) to impress upon us the fact that carriage capacity can vary considerably and therefore the restriction of 6 cattle per goods vehicle is an unreasonable restriction and that the average space of 2 square meters per animal provided under Rule 50 should be multiplied with the carriage capacity of different transport vehicles. He further contends that violation of the Act and Rules result in penalties and punishment. 6. The issue raised on the face of it appears to be interesting at first flush. However, a close examination of Rule 56 leaves no manner of doubt that the rule making authority has placed a caveat in the rule that conditions (a) to (f) are not mandates but “precautions” They are not intended to be more than the minimal precautions to be taken while ferrying cattle. 7. We have heard Mr. D.R. Sharma, learned counsel for the petitioner, Mr. A.K.Bansal, Advocate for respondent no.1-Union of India, Mr. Suvir Sehgal, Addl. A.G. Punjab, for respondent Nos. 2 and 4 and Mr. Anil Rathee, Addl. A.G. Haryana for respondent Nos.3 and 5 at length. 8. Mr. Sehgal, learned Addl. A.G. Punjab has argued that Rule 56(C) has to be read harmoniously with certain other rules such as Rule 62 (e) and Rule 75(1) of the 1978 Rules. Chapter V of the 1978 Rule deals with equines (horses, mules and donkeys). Rule 62 in its heading employs similar opening words as Rule 56 (C) inasmuch as it lays down “For the transport of equines by goods-vehicles, the following precautions shall be taken, namely:”. The relevant precaution is in (e), namely-“each vehicle shall not carry more than four to six equines”. Mr. Sehgal also C.W.P. No. 15706 of 2010 5 refers to Rule 75 (1) which falls in Chapter VI which deals with transport of sheep and goats to further his argument. Rule 75(1) reads as follows:- “75(1) Goods vehicles of capacity of 5 or 4-1/2 tons, which are generally used for transporting animals, shall carry not more than forty sheep or goats. 9. Learned counsel for the State contends that “goods vehicle” has not been defined either in the 1960 Act or 1978 Rules and nor in the Motor Vehicles Act, 1988. In the Motor Vehicles Act, only ‘heavy goods vehicles’ have been defined in Section 2(16). In the ultimate analysis, Rule 56(C) he submits has to be read harmoniously with Rule 62 (e), Rule 75(1) and Rule 50 of the Rules and still further in harmony with Section 11(d) of the 1960 Act. The master key to the primary issue appears to us to be to prevent cruelty to animals and to alleviate 'unnecessary pain or suffering' to them during transport. The average space of two meters per animal broadly would be determinative of the issue. We would not interpret the 1978 Rules with mathematical exactitude and break down rule 56 (C). When the rules are read harmoniously, the mischief sought to be projected would stand removed. Merely because the rules are capable of being violated or abused on the road by unscrupulous elements is not sufficient reason to declare them unconstitutional or bad. We agree with Mr. Sehgal that harmonious construction when applied to the case in hand would achieve the purpose of preventing cruelty to animals and we would, therefore, read down Rule 56 (C) and bring it in harmony with Rule 62(e), Rule 75(1) and Rule 50 of the 1978 Rules read with Section 11 of the 1960 Act. The words ‘goods vehicle’ we think have to be broadly construed so as not to cause 'unnecessary pain or suffering' in animals/cattle in relation to ‘average space’ required to ferry them. In our view Rule 56 (C) ought to be given a somewhat flexible interpretation depending on the size of the C.W.P. No. 15706 of 2010 6 goods vehicle used for transportation given the broad but constant ‘not less than two sq mtrs’ average space required per average size of cattle. This would be broadly determinative of the issue. We add that no one can be permitted to transport cattle packed like the proverbial sardines. 10. We asked Mr. Sharma, learned counsel for the petitioner to support his allegation of harassment at the hands of the enforcers of the law while carrying on business of transport of cattle within the territorial jurisdiction of this Court. He was unable to furnish any proof of any action taken against him as a transporter or his agents or assigns for violation of Rule 56(C). We asked him this question to examine whether he was personally aggrieved by any instance of wrongdoing at the hands of any functionary of the State charged with the duty to police the 1960 Act and the 1978 Rules. He was unable to enlighten us. No document to show needless harassment was placed before us or on the record of this case. 11. In response to the notice on this petition, written statements have been filed by Ms. Amrit Brar, Assistant Inspector General of Police (Crime), Punjab on behalf of the Home Secretary to Government, Punjab and Director General of Police, Punjab in which allegations of harassment have been denied on the short ground that in the petition, there is no specific allegation or instance of harassment caused to the petitioner by the police or any public authority. We have also perused the written statement filed by Shri Pushp Raj Singh, Special Secretary to Government, Haryana, Home Department on behalf of the State of Haryana, who has stated that bald and vague allegations have been made against the government officials without any substantive or supportive material and that if the petitioner is aggrieved, he may redress his grievance against any erring official by approaching the competent court of law. If the petitioner feels aggrieved by any particular act he is at liberty to question it in C.W.P. No. 15706 of 2010 7 appropriate proceedings. We cannot strike down a rule on a hypothesis or an imaginary wrongdoing or its possibility of misuse. We cannot pass any blanket order as suggested. 12. We are unable to find any substance in the petition in its attempt to challenge the vires of Rule 56(C) of the 1978 rules and therefore, dismiss the petition. 13. But before parting with the order, we think it appropriate that this order may be placed before the Chief Secretaries of both Punjab and Haryana and the Home Secretary, UT Administration with a request to sensitize the keepers and enforcers of the 1960 Act and the 1978 Rules in their respective territories as to the interpretation placed inter alia on Rule 56(C) so as to counter balance protection of animals/cattle and business in the bovine trade; that neither suffers. (M.M.KUMAR) (RAJIV NARAIN RAINA) JUDGE JUDGE November 16,2011 nk