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2003 Supreme(Bom) 5
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Deshpande D.G. Hardas P.V., JJ.
People for Elimination of Stray Troubles (PEST)
by its Convenor Dr. Rosario Menezes another .... Petitioners.
Versus
State of Goa others.... Respondents.
Writ Petition No. 9 of 2001 (P.I.L.) , decided on 7-1-2003.
Advocates appeared :
Aires Rodrigues, for petitioners.
A.N.S. Nadkarni with P.A. Kamat, A.G.P., for respondents Nos. 1 to 4.
Ms. N. Alvares, for respondents Nos. 5 7.
A.J.R. Couto, for respondent No. 8.
S.D. Padiyar, for respondents Nos. 9, 10, 11 12.
Sudesh Usgaonkar, for respondent No. 13.
P.A. Kholkar, for respondent No. 14.
N.K. Sawaikar, for respondent No. 15.
S.D. Lotlikar, Sr.A. with A.D. Bhobe, for respondents Nos. 18 19.
F.A. Tavora, for respondents Nos. 25, 26, 27, 28, 29, 30 31.
Guru Shirodkar, for respondent No. 32.
N. Sardessai, for respondent No. 39.
Headnote:Bombay Municipal Corporation Act, 1888 - - Section 191-A - Killing of Stray dogs - Many opinions - Contradictory opinions - Contentions also too many various organisations coming forward with their pleadings - Some supported painless killing some gave other suggestions - Practice of merciful killing can be adopted - Crucial question will be of deciding to eliminate stray dogs in terms of provisions of Prevention of Cruelty to Animals Act - Once an accepted method is achieved - Court can consider the mercy killing appropriately. - There is considerable force in these submissions. Dogs may have been tamed, but, in fact, they are wild animals and when any attempt to capture them is made, they are likely to become ferocious and attack the capturers as a last weapon in their armoury. The method of capturing stray dogs to which parties agreed in Writ Petition No. 1596 of 1998 cannot, be an effective method in controlling the menace of dogs.
It was also brought to notice that some Municipalities provide that for proof of killing dogs, tail was required to be cut and produced before the authorities and all this being done in the eyes of the public where children and others are the spectators. If this is, in fact, being done at public places, then certainly, this practice requires to be changed. However, the crucial question will be of deciding to eliminate stray dogs in terms of the provisions of Prevention of Cruelty to Animals Act and the Municipalities Act. Once that position becomes clear then the method of elimination can be found out or suggested
Prevention of Cruelty to Animals Act, 1960 - Section 11 (3) - Object of - To prevent cruelty to animals - Destruc- tion of stray dogs not amounts cruelty to animals - Extermination or destruction of stray dogs not prohibited under Act - No legal impediment in that regard. - Firstly destruction of stray dogs does not amount to giving any cruelty to animals as provided by sub-section (3) of Section 11 and, secondly, the object of the Act and also the object of promotion of Animal Welfare Board is to prevent unnecessary pain and suffering. It is clear, therefore, from the wordings that if infliction of pain or suffering is necessary or a necessary will of a particular Act, then the same cannot be prevented or prohibited. Court, therefore, finds that the Prevention of Cruelty to Animals Act, 1960 does not prohibit at all extermination or destruction of stray dogs. Therefore, there is no legal impediment in that regar
Goa Municipalities Act, 1968 - Section 279 - "Provision as to dogs" - Destruction of stray dogs - Permissible - Local bodies under Act empowered to eliminate stray dogs or dogs suffering from rabies - Dogs unclaimed by owner may be sold or destroyed by Chief Officer - Elimination of stray dogs not prohibited. - So far as the provisions of Goa Municipalities Act are concerned, Court s attention was drawn to Section 278, the heading of which is "Provision as to Dogs and sub-section (4) provides that any dog which is not claimed within the period specified in sub-section (3) or any dog the owner of which has failed to comply with the provision of sub-section (2) within the specified period, may be sold or destroyed by the Chief Officer. It also provides that any dog which is found to be rabid may be destroyed at any time. Therefore, counsel for the petitioners contended that looking to the provisions of the Prevention of Cruelty to Animals Act and particularly, to the provisions of Section 278 of the Goa Municipalities Act, destruction of stray dogs was permissible.
The Goa Municipalities Act, the Bombay Municipal Corporation Act and the Maharashtra Municipalities Act do empower the local bodies to eliminate dogs particularly stray dogs and dogs suffering from rabies. When these provisions are taken and read together with the provisions of the Prevention of Cruelty to Animals Act, 1960, it will be clear that the Legislature, i.e., Central as well as the State Legislature in its wisdom thought it necessary to order elimination of stray dogs
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 293 - Killing of stray dogs - Prohibited - Contention that a judgment by consent is not a precedent of binding nature - Prevention of cruelty to animals not at all considered - Various non-government organisation ready to tackle problem not considered - Destruction of stray dogs does not amount to cruelty similar and contradictory contentions - It was ultimately decided that killing of stray dogs does not amount to cruelty to animals - Considering objections it was proper to refer the matter to a larger Bench. - The preamble of the Act reads as "an Act to prevent the infliction of unnecessary pain or suffering on animals". Chapter II of the Act deals with "Animal Welfare Board of India" and Section 4(1) also is worded as "For the promotion of animal welfare generally and for the purpose of protecting animals from being subjected to a unnecessary pain or suffering....." Section 9 of the Act speaks about the "Functions of the Board" and sub-section (b) relates to the giving advice to the Central Government on making of rules under this Act with a view to preventing unnecessary pain or suffering to the animals. It will, therefore, be clear that firstly, destruction of stray dogs does not amount to giving any cruelty to animals as provided by sub-section (3) of Section 11 and, secondly, the object of the Act and also the object of promotion of Animal Welfare Board is to prevent unnecessary pain and suffering. It is clear, therefore, from the wordings that if infliction of pain or suffering is necessary or a necessary will of a particular Act, then the same cannot be prevented or prohibited.
2.This petition is opposed mainly by the intervenors who are the N.G.Os. who applied for intervention but the opposition is not to demand that the menace of the stray dogs should be curbed but the opposition is to the modus operandi to be used.
3.Respondent No. 5 i.e. people for animals, has opposed this petition strongly. According to them, the petitioners have made reckless and sweeping allegations without any material. They have stated that they filed writ petition before this Bench in 1988 in public interest litigation praying that barbaric practice of shooting stray dogs should be stopped forthwith and as a consequence of this petition, certain steps were taken by the authorities, namely, formation of State Advisory Board for Animal Welfare in April 1999 and, secondly, Panaji Municipal Council preparing the scheme for control of stray dog population in Panaji Municipal area. Thereafter, they signed M.O.U. with Panaji Municipal Council to implement the scheme and agreeing to sterilize 1200 dogs per annum under the Animal Birth Control programme. They were allotted land for setting up animal shelter at St. Inez in May 1999 and on an average according to them, 150 to 200 stray dogs are sterilized per month at the shelter and various other steps are taken and they have been informed by Panaji Municipal Council that the stray dog menace has decreased. They have also stated that sterilisation programme is also initiated in other Municipalities. That they sent municipal report about their working to the Director of Animal Husbandry and other Municipal Councils and in this background, they oppose this writ petition. Their grievance is that no genuine efforts are made by the petitioners' organization to visit the animal shelter of the respondent No. 5 and to appreciate the work done by them.
4.From the record it appears that Writ Petition No. 373 of 1998 is the petition to which the respondent No. 5 has referred to above and that the petition was filed to ban the practice of dog shooting in the State of Goa. It came to be finally disposed of by the Division Bench on 20th July, 1999 in view of the steps taken by the Government as stated above. Consequently, the prayer of the petition to impose such ban on dog shooting was not pressed nor was granted. Therefore, the prayers of the petitioners in this petition before us No. 9 of 2001 require serious consideration.
5.A judgment of the Division Bench consisting of M.B. Shah, C.J. (as he then was) was also cited before us by the contesting respondents, because according to them, this judgment clearly lays down that shooting of the dogs was not permissible. The Counsel for the petitioners stated that this judgment of the Division Bench in Writ Petition No. 165 of 1998 is a judgment given by the consent of the parties on the basis of the consent terms and, therefore, it cannot be read as a binding precedent and, secondly, in that judgment the provisions of the Prevention of Cruelty of Animals Act were not at all considered nor discussed. Therefore, according to the petitioners, the said judgment cannot come in their way in seeking the relief asked for. Alternatively, they praye
