Himachal Pradesh High Court
Court On Its Own Motion vs The Deputy Commissioner on 10 January, 2018
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPIL No.152 of 2017 Date of Decision : January 10, 2018 .
Court on its own motion ....Petitioner.
versus
The Deputy Commissioner, Shimla
And another ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. 1 For the Petitioner : Mr. Ankush Dass, Senior Advocate, r as Amicus Curiae, with Mr. Devan Khanna, Advocate.
For the respondents : Mr. Ashok Sharma, Advocate General, with Mr. M.A. Khan, Mr. Varun Chandel, Additional Advocates General, and Mr. J.K. Verma, Deputy Advocate General, for respondent No.1-State.
Mr. Hamdender Chandel, Advocate, for respondent No.2.
Sanjay Karol, Acting Chief Justice As to whether domesticated horses, licenced to be used for the purpose of joy rides to children on the Ridge (Shimla), have a right to shelter during rain and Whether reporters of the local papers are allowed to see the judgment?
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snow, is the core issue, which arises for consideration in the present petition.
2. By way of the instant letter petition, .
addressed by Ms Nidhi Bhalla, Hill View Lodge, Bharari, Shimla (Mobile No.98160 17917), plight of the horses, stationed on the Ridge (Shimla), was brought to the notice of this Court.
3. The Deputy Commissioner, Shimla, vide communication dated 10.11.2017, reproduced hereinbelow, requested the Commissioner, Municipal Corporation, Shimla, to have the mater examined and take appropriate action:
"Please refer to the abovementioned subject and to request you that the above case was listed before the Hon'ble High court on 1.-11- 2017 and the Hon'ble High court has directed to file the reply to the petition with in a period of two weeks' time.
In this context, it is requested that the Hon'ble High Court has taken the cognizance on the representation presented by Nidhi Bhalla, Resident of Hill view Lodge Bharari Shimla. The petitioner has submitted that there is no appropriate shelter for the horses at the Ridge Shimla during the rains as such they needs to be protected and preserved otherwise the way the horses and owners are being treated, Shimla people may see the pride of ridge as vanishing. You are, therefore, requested to look into the matter personally and take the appropriate steps to redress the grievances as mentioned in the above case. Further you are also requestedto send the status report to this office within weeks ::: Downloaded on - 20/05/2018 21:06:10 :::HCHP ...3...
time so that the Hon'ble high court could be apprised accordingly.
Being a High Court matter treat it as most urgent."
.
4. Both Mr. Ankush Dass, learned Senior Advocate and Mr. Devan Khanna, Advocate, on our request, took up the matter with the authorities and appreciably, have found out a solution to the problem.
Initially, learned Amicus were of the view that perhaps a temporary structure, totally gelling with the environment, can be raised on the Ridge for giving shelter to the ponies.
5. On a thoughtful consideration, considering the heritage status of the Ridge, the place where the horses are licenced to give joy rides, prudently, we did not find favour with such suggestion, for one does not know that with the passage of time, the authority may take a decision to build a permanent structure, thus destroying the heritage value and character of the place.
6. Thankfully to the learned Amicus, the Municipal Corporation, Shimla, has identified a place, immediately below the Ridge, towards the northern side, i.e. hill towards the Local Bus Stand, where the ponies can be tethered during rain and snow. Both Mr. Dass, ::: Downloaded on - 20/05/2018 21:06:10 :::HCHP ...4...
Senior Advocate, and Mr. Deven Khanna have visited the site.
7. The Commissioner, Municipal Corporation, .
Shimla, states that necessary action for clearing and cleaning the passage; removing the encroachments, if any; and making the place, so identified, to be fully useable, shall be taken up at the earliest and the place made available for use, definitely on or before 28.2.2018.
8. Well with this, we find the grievance to have been redressed. But, before we close the present proceedings, we intend to say a little more.
9. Shimla is a heritage town. The Ridge is part of its heritage, so also pony rides for children on the Ridge, intrinsically is part of the very same heritage.
10. At present, as we are informed, there are 17 persons to whom licences, termed as "Horse Licence"
stand issued by the Superintendent Estate, Municipal Corporation, Shimla. These horse owners run the ponies on an identified/earmarked route. At present, ponies are tethered in the open, on the Ridge itself. To the credit of ::: Downloaded on - 20/05/2018 21:06:10 :::HCHP ...5...
the Municipal Corporation, one must record that place for drinking water for the horses is provided for.
11. The problem arises when it rains or snows.
.
Whereas the owners run for shelter, they leave their horses, covered with a plastic sheet, tethered to the pole, in the open, unattended, to only suffer the vagaries of the weather.
12. In our considered view, concept of inalienable rights, within the framework of Rule of Law, applies as much to animal life as it would to humans. The vagaries and harshness of the weather, at times, is cruel in nature. Neither the horse owners nor the authorities issuing the licences can adopt an attitude of indifference to this suffering, causing immense cruelty.
13. Article 51-A of the Constitution of India mandates it to be a duty of every citizen to not only preserve the rich heritage of a composite culture, but also show compassion to all living creatures. To similar effect is the duty cast upon the State. One has to exhibit compassion for all living creatures.
14. The Apex Court in Animal Welfare Board of India v. A. Nagaraja & othes, (2014) 7 SCC 547, ::: Downloaded on - 20/05/2018 21:06:10 :::HCHP ...6...
highlighting the importance and significance of the provisions of the Prevention of Cruelty to Animals Act, 1960, and that the expression "well-being of the .
animals", under Section 3 of the said Act, would mean state of being comfortable, healthy and happy. The Court reiterated the principle laid down in State of Gujarat v. Mirzapur Moti Kureshi Kassa Jamat, (2005) 8 SCC 534, with regard to the duty of citizens to show compassion for living creatures. What is "humanism"
under the Constitution, stands explained in the following terms:
"68. Article 51A(h) says that it shall be the duty of every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform. Particular emphasis has been made to the expression "humanism" which has a number of meanings, but increasingly designates as an inclusive sensibility for our species. Humanism also means, understand benevolence, compassion, mercy etc. Citizens should, therefore, develop a spirit of compassion and humanism which is reflected in the Preamble of PCA Act as well as in Sections 3 and 11 of the Act. To look after the welfare and well- being of the animals and the duty to prevent the infliction of pain or suffering on animals highlights the principles of humanism in Article 51A(h). Both Articles 51A(g) and (h) have to be read into the PCA Act, especially into Section 3 and Section 11 of the PCA Act and be applied and enforced."
In the very same report, meaning of expression "right to life", under Article 21 of the Constitution, was held to be ::: Downloaded on - 20/05/2018 21:06:10 :::HCHP ...7...
applicable to all forms of life, including animal life (Para-
72).
15. We are totally in agreement with the learned .
Amicus that Article 21 covers under its umbrella every species and all forms of life in the environment. "Life", in the context of animals, does not mean mere survival or existence or instrumental value for human beings, but also some intrinsic worth, honour and dignity.
16. In fact, in its earlier decisions, while dealing with the issue of man-animal conflict, the Apex Court in T.N. Godavarman Thirumulpad v. Union of India & othes, (2012) 3 SCC 277, held as under:
"17. Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric. Manyof our principles like sustainable development, polluter- pays principle, inter-generational equity have their roots in anthropocentric principles.
Anthropocentrism is always human interest focussed and non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non- human based benefits to humans. Ecocentrism is nature centred where humans are part of nature and non-human has intrinsic value. In other words, human interest do not take automatic precedence and humans have obligations to nonhumans independently of human interest. Ecocentrism is therefore life-centred, nature- centred where nature include both human and non-humans. National Wildlife Action Plan 2002- 2012 and centrally sponsored scheme (Integrated Development of Wildlife Habitats) is centred on the principle of ecocentrism."
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17. The view stands reiterated in Centre for Environmental Law, World Wide Fund-India v. Union of .
India & others, (2013) 8 SCC 234.
18. In our considered view, during rain and snow, the horses, which are domesticated, cannot be allowed to be kept in the open, for it causes cruelty to them.
Such an act is against public morale and order. Animals do have emotion, though they may not have the language of humans, but animal-lovers do understand their such emotions, expressed in various forms, including sound, body language and behaviour. In our considered view, animals do have a fundamental right under the Indian Constitution.
19. In the instant case, there is no conflict of interest between animals and humans. On the contrary, man needs to attend to the animals. Their sufferings need to be lessened and life ameliorated.
20. As already observed, pony ride being an intrinsic part of heritage of the town, the authorities are duty bound to ensure that the owners and the stakeholders do not cause any cruelty to the horses. The ::: Downloaded on - 20/05/2018 21:06:10 :::HCHP ...9...
issue needs to be addressed and all sensitized about the same.
21. Before parting, we place on record our .
appreciation for the efforts put in by Mr. Ankush Dass, learned Senior Advocate and Mr. Deven Khanna, learned Amicus Curiae, who, on the instructions of this Court, contacted the letter petitioner and obtained necessary feedback.
22. Registry is directed to send a copy of this judgment to the Deputy Commissioner, Shimla, District Shimla, Himachal Pradesh, and the Commissioner, Municipal Corporation, Shimla, for necessary action, as also to the letter petitioner to enable her to take follow up action with the concerned authorities.
In view of the aforesaid, present letter petition is closed, so also pending application(s), if any.
( Sanjay Karol ),
Acting Chief Justice
( Sandeep Sharma ),
January 10, 2018(sd) Judge.
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