V.K. Bali, C.J.

The Animal Welfare Board of India and a registered society by name 'DAYA' (Society for the Prevention of Cruelty to Animals), the petitioners herein, it appears, are more interested in welfare and preservation of stay dogs, even though suffering from fatal diseases or even rabies and appear to have no concern for human being who fall victims of bite of stray dogs in the entire length and breadth of Kerala state. Through the present petition filed, the petitioners thus crave indulgence of this Court to issue appropriate direction to preserve stray dogs even though they have become unwanted because of fatal and dangerous diseases with which they are afflicted. Inasmuch as, in the context of the relief as asked for it is essential to seek to set aside Exhibit P2 dated 25th August, 2004 passed by the Ombudsman, they seek this court to do so.

2. The only question while seeking the relies as enumerated above that has been posed for answer of this court is as to whether the Ombudsman could pass order directing the Corporations, the Municipalities and the Panchayats at all levels to take steps for the destruction of the stray dogs with a minimum of suffering on a war footing and save the inhabitants of their respective areas from the fatal health hazards caused by the stray dogs when a Division Bench of this court in W.P.(C).Nos.23543, 38843 and 40549 of 2003 directed otherwise by its order dated 10th March, 2004. Before we may answer the question posed for adjudication it will be relevant to give brief facts of the case.

3. The Ombudsman based on an editorial in the Malayala Manorama dated 7.8.2004 under the caption "Under law who is more important, Man or Dog" and the letter of Dr. Vincent Panikulangara dated 12.8.2004 being to focus the predicament of the citizens who are inhabitants of either the Municipal Corporation, the Municipalities or the Panchayats initiated suo motu proceedings in O.P.No.676 of 2004. It was mentioned by Dr. Vincent Panikulangara in his letter that west Cochin has been become a heaven of stray dogs. On 3.3.2004 stray dogs bit Nashik, a 9 years old boy and Amal Deo, a 8 years old boy in Government Hospital, Mattancherry. In that area 56 person were bitten by stray dogs during the period from 1st to 11th August 2004. In the editorial dated 7.8.2004 as also various items of news on the 2nd, 4th, 10th and 11th of August, 2004 with photographs of children were published showing the menace caused by the stray dogs and how the citizens are suffering. Some stray dogs, it was stated by Dr. Vicent Panikulangara, were freely moving about in the State. The pitiable situation caused by stray dogs which is dangerous and a menance to the citizens assumed alarming proportions for the reason that the local bodies were disabled by the state Government dated 2.8.2002 cancelling the notification dated 3.7.2002 empowering the local bodies to take action for destruction of stray dogs in terms of section 11(3)(b) of the Prevention of Cruelty to Animals Act, hereinafter referred to as Animals Act". In the wake of the situation as mentioned above, one N. Bhaskaran moved W.P.(C).23543 of 2003 seeking a direction to the state Government to restore the notification dated 3.7.2002 empowering the local bodies to take immediate action for the destruction of stray dogs. The Court was shown The Animal Birth Control (Dogs) Rules and based on the provisions contained therein the Division Bench of this Court observed that the Rules be strictly observed in its letter and spirit. The Bench also observed that Rules have been framed for implementing the Animal Birth Control & Immmunisation of stray dogs scheme and they are satisfied that adequate provisions have been made therein to deal with the stray dogs, particularly those which are sick and dangerous to human being. They also observed that provisions have been made for their elimination as well.

4. The legislature enacted Prevention of Cruelty to Animals Act, 1960. Se