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2018 Supreme(Bom) 2681
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. Oka, Sandeep K Shinde, JJ.
Maruti Shrishailya Hale & Ors. - Appellants
Versus
Commissioner, Sangli Miraj Kupwad Corporation & Ors. - Respondents
Writ Petition No. 4075 of 2015
Decided On : 11-12-2018
Manoj Shirsat, Adv., Padmanath D Pise, Adv., Sudhir Prabhu, Adv., P.P. More, Adv.
Headnote:
Animal Birth Control - Negligence of Municipal Corporation and State Government - Maharashtra Municipal Corporations Act,1949, Animal Birth Control (Dogs) Rules 2001, Maharashtra Police Act, 1950 - The court discussed the negligence of the Municipal Corporation and the State Government in preventing the menace of street dogs, and the violation of the fundamental right of the child under Article 21 of the Constitution of India. The court highlighted the duty of the Municipal Corporation and the State Government to take effective steps to curb the menace of street dogs and the corresponding obligation to ensure the rights of citizens under Article 21 are not violated. The court also emphasized the power of the Writ Court to direct respondents to pay compensation if violation of fundamental rights is established, citing the case of Smt. Nilabati Behera vs State Of Orissa And Others (1993) 2 SCC 746, and the power to grant compensation under Article 226 of the Constitution, based on strict liability for contravention of fundamental rights to which the principles of sovereign immunity do not apply.
Fact of the Case:
The petitioners, young parents of a 5-year-old boy, sought compensation for the death of their son due to a dog attack within the limits of Sangli-Miraj-Kupwad Municipal Corporation. The petitioners alleged negligence on the part of the Municipal Corporation and the State Government in preventing the menace of street dogs, leading to the death of their son.
Finding of the Court:
The court found that there was a failure on the part of the Municipal Corporation to take care of the citizens and that the State Government also had abundant powers to issue directions to the Municipal Corporation. The court held that the petitioners had lost their only son due to the attack by street dogs and that the Writ Court had the power to grant compensation if violation of fundamental rights is established.
Issues: The issues raised in the petition included the negligence of the Municipal Corporation and the State Government in preventing the menace of street dogs, the infringement of the fundamental right of the child under Article 21 of the Constitution of India, and the prayer for compensation of Rs.20,00,000/-.
Ratio Decidendi: The court emphasized the duty of the Municipal Corporation and the State Government to take effective steps to curb the menace of street dogs and the corresponding obligation to ensure the rights of citizens under Article 21 are not violated. The court also highlighted the power of the Writ Court to direct respondents to pay compensation if violation of fundamental rights is established, based on strict liability for contravention of fundamental rights to which the principles of sovereign immunity do not apply.
Final Decision: The court directed the State Government and the Municipal Corporation to jointly and severally pay the petitioners interim compensation of Rs.50,000/- with simple interest accrued thereon at the rate of 8% per annum from 28th July 2015 till the date of deposit of the amount in the Court. The court also directed the State Government to place the case of the petitioners before the Committee constituted under the GR dated 11th August 2016 for a final decision on the quantification of the amount of compensation, if any, payable to the petitioner.
JUDGMENT
A.S.Oka, J. - Heard the learned counsel for the petitioners, the learned counsel for the respondent Nos.1 and 2 and the learned AGP for respondent Nos.3 and 4. The facts of this case disclose sad and shocking state of affairs. The petitioners are young parents of a boy who was 5 years old. On 22nd December 2016, the petitioner No.1 along with his son Tejas went to see a cricket tournament within the limits of Sangli-Miraj-Kupwad Municipal Corporation (for short "the said Municipal Corporation") which is duly constituted under the Maharashtra Municipal Corporations Act,1949. While returning home, the child was attacked by 5 to 6 stray dogs. The petitioner No.1 tried to help him but it was too late. As a result of large number of serious injuries sustained by the child due to dog bite, he succumbed to the injuries on the very day in Civil Hospital, Sangli. The copies of the inquest Panchnama and the P.M.Notes are annexed to the petition. As per Column No.17 of the P.M.Notes, the poor and unlucky child received as many as 19 injuries. Many of the injuries were caused due to the dog bite. The cause of Death certificate was issued by the Government Hospital on next day recording that the death was due to haemorrhagic shock in a case of animal bite.
2. The sum and substance of the grievance made in the petition is that there was a complete failure on the part of the said Municipal Corporation and the State Government to discharge their obligations towards the citizens. The contention is that there are sufficient powers vesting in all the concerned Authorities under the provisions of the Animal Birth Control (Dogs) Rules 2001 (for short "the said Rules of 2001") and section 44 of the Maharashtra Police Act, 1950. It is the contention of the petitioners that the death of the child is due to the negligence on the part of the Municipal Authorities and the State Government in preventing menace of street dogs. The contention is that the Municipal Corporation and the State Government have infringed the fundamental right of the said boy under Article 21 of the Constitution of India thereby causing enormous mental trauma to the petitioners who are the parents. The death of their only son has created emptiness in the life of the petitioners.
3. We may note that several issues were raised in this petition. However, by order dated 20th January 2017, the scope of this petition (which was originally filed as a Public Interest Litigation) has been restricted to the prayer for compensation of Rs.20,00,000/-.
4. There are affidavits filed on record. Shri Sunil Mohanrao Pawar, Deputy Commissioner, Sangli Miraj Kupwad City Corporation has filed an affidavit on behalf of the State Government denying the allegations regarding failure to abide by the said Rules of 2001. In the affidavit, it is stated that the Municipal Corporation has provided two dog vans. Copies of number of newspaper cuttings are also annexed to the petition. It is brought on record that the said Municipal Corporation does not have its own ambulance but the said Municipal Corporation is using the services of an ambulance owned by a private organization.
5. There is an affidavit filed by Shri Ravindra Khebudkar, the Commissioner of the said Corporation which relies upon the Government Resolution (for short "GR") dated 11th August 2016 by which a Committee headed by the Secretary of the Urban Development Department was constituted for dealing with several issues including the human-dog conflict. There is an affidavit filed by Shri Sunil Ambole, the Health Officer of the said Municipal Corporation. Before dealing with the grievance regarding the failure of the State Government to abide by the said Rules of 2001, in paragraph 10 and 12, Shri Sunil Ambole has stated thus:
"10. With reference to paragraphs No.10A to 10H, I say that these paragraphs are the ground on which the petitioners challenging the validity of Rule 13 of the Animal Birth Control (Dogs) Rule 2001 and needs no co
