Karnataka High Court
The Chief Executive Officer vs Shri Yusub S/O Mohamusab Sanadi on 31 July, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:7978-DB
WA No. 100117 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO. 100117 OF 2023 (GM-RES)
BETWEEN:
1. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYATH,
BELAGAVI 590001.
2. PANCHAYAT DEVELOPMENT OFFICER,
GRAM PANCHAYATH,
BALEKUNDRI B.K. BELAGAVI,
TQ: BELAGAVI DIST: 591103.
...APPELLANTS
(BY SRI. V. SHIVARAJ HIREMATH, ADVOCATE)
AND:
ROHAN
HADIMANI
T 1. SHRI YUSUB S/O. MOHAMUSAB SANADI,
AGE 34 YEARS,
OCC. COOLI/GOUNDI/MASON,
Digitally signed by
ROHAN HADIMANI T
Location:
R/O H.NO.174, CHAVADI GALLI,
HIGHCOURT OF
KARNATAKA- GALEKUNDRI B.K.
DHARWAD BENCH
Date: 2023.08.04
12:57:33 +0530
BELAGAVI TQ AND BELAGAVI 591103.
2. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
VIDHANA SOUDHA, BENGALURU 560001.
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NC: 2023:KHC-D:7978-DB
WA No. 100117 of 2023
3. THE DEPUTY COMMISSIONER,
COURT COMPOUND,
BELAGAVI 590001.
...RESPONDENTS
(BY SRI. SANTOSH PUJARI, ADVOCATE FOR
RESPONDENT NO.1;
SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE
FOR RESPONDENT NOS. 2 AND 3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON BLE
COURT TO, A) CALL FOR THE RECORDS IN
W.P.NO.110352/2019 (GM-RES) ON THE FILE OF LEARNED
SINGLE JUDGE OF THIS HON BLE COURT. B) SET-ASIDE THE
ORDER DATED 10-06-2022 PASSED IN W.P.NO.110352/2019
(GM-RES) BY THE LEARNED SINGLE JUDGE OF HON BLE HIGH
COURT OF KARNATAKA, BENCH AT DHARWAD, DHARWAD, IN
THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR FINAL ORDERS, THIS
DAY, S.R. KRISHNA KUMAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This intra Court appeal arise out of the impugned order dated 10.06.2022 passed in Writ Petition No.110352/2019 by the learned Single Judge.
2. Heard Sri. V. Shivaraj Hiremath, learned counsel for the appellants, Sri. Santosh Pujari, learned counsel for respondent No.1 and Sri. G.K.Hiregoudar, learned Government Advocate for respondent Nos.2 and 3.
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3. The aforesaid writ petition was filed by one Yusub Sanadi claiming compensation on account of the sad and untimely demise of his minor infant son Master Abbasali Yusub Sanadi aged about 22 months on account of the attack by 4 to 5 street dogs which resulted in his demise due to injuries.
4. It was contended in the writ petition that while the respondent No.1 is the State of Karnataka, respondent Nos.2 to 4 were the Zilla Panchayat, the Deputy Commissioner and the Panchayat Development Officer of the Gram Panchayat, who were responsible for ensuring that there were no street dogs at the time when the aforesaid incident occurred which resulted in the demise of the aforesaid infant of the writ petitioner. The said writ petition was contested by the State as well as its authorities and after hearing both the parties, this Court came to the conclusion that the demise of Master Abbasali Yusub Sanadi was due to non performance of the public duty and statutory duty vested in the authorities to safeguard the citizens residing in the area from attack of street dogs and the said authorities were -4- NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 responsible for ensuring that no such attacks happened.
Under these circumstances, the learned Single Judge came to the conclusion that since the respondents including the State of Karnataka and the authorities were responsible for the demise of Master Abbasali Yusub Sanadi due to attack by street dogs, they were liable to pay the compensation in a sum of Rs.10 lakhs to the claimant.
5. While arriving at the said conclusion, the learned Single Judge held as under:
"12.3 The High Court of Bombay in MARUTI SHRISHAILYA HALE AND OTHERS VS. THE COMMISSIONER, SANGLI MIRAJ KUPWAD CORPORATION AND OTHERS in W.P.NO.4075/2015 has categorically held that the right guaranteed by Article 21 of the Constitution of India is not merely a right to survive but extends to right to live a dignified and meaningful life and as such, there is a corresponding obligation on the State Government and its agencies to ensure that the said rights are not violated. In that case also a child was attacked by stray dogs as a result of which large number of injuries were caused resulting in the death of the child. The Hon'ble Bombay High Court held that there was a failure on the part of the municipal corporation to perform its duties by not taking all possible steps to curb the menace of stray dogs. The Bombay High Court by referring to the decision of the Hon'ble Apex Court in SMT.NILABATI BEHERA @ LALITA BEHERA VS. STATE OF ORISSA AND OTHERS reported in 1993 (2) SCC 746 has held that the awardal of compensation in a proceeding -5- NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 under Article 226 of the Constitution of India is a remedy available in public law based on strict liability for contravention of fundamental rights as regards which principle of sovereign immunity would not apply and the Bombay High Court granted interim compensation in the matter.
12.4 The High Court of Manipur in a suo moto proceedings in the case of IN RE EFFECTIVE IMPLEMENTATION OF PREVENTION OF CRUELTY TO ANIMAL ACT, 1960 AND RULES VS. STATE [PIL NO.41/2017] vide its order dated 25.07.2018 has held that it was the duty of the State Government to implement the provisions of the Prevention of Cruelty to Animals Act, 1960, the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001, the Animal Birth Control (Dogs) Rules, 2001 as also the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017 as also the orders of the Apex Court in ANIMAL WELFARE BOARD OF INDIA VS.
A.NAGARAJ & ORS., reported in (2014) 7 SCC 547 and INDIAN COUNCIL FOR ENVIRO-
LEGAL ACTION VS. UNION OF INDIA & ORS. reported in (1996) 5 SCC 281.
12.5 The Hon'ble Kerala High Court in the case of THE ANIMAL WELFARE BOARD OF INDIA AND ANOTHER VS. THE OMBUDSMAN FOR LOCAL SELF IN WP NO.30611/2004 came to a conclusion that the right to live as enshrined under Article 21 of the Constitution of India is a fundamental right which would take precedence over the Animal Birth Control (Dogs) Rules, 2001. Though the interest of the animals has to be protected, there cannot be an abdication of the interest of human lives and preservations thereof and as such, dismissed the petition filed by the petitioners therein. The petitioner having sought for directions to preserve stray dogs, the Court came to a conclusion that the stray dogs could cause fatal and dangerous injuries inasmuch as -6- NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 neither were they vaccinated nor taken care of and as such pose a great risk and danger to the human life.
12.6 This Court in MASTER JISHNU AND OTHERS VS.
BBMP AND OTHERS REPORTED IN 2013 ILR KAR 4015 while considering a similar matter issued the following directions:
"(1) The Animal Welfare Organisations and the Monitoring Committee as contemplated under the ABC Rules, 2001 to ensure complete sterilization and vaccination of all healthy stray dogs, particularly, within the territorial jurisdiction of the BBMP as per Rules 7 and 8;
(2) It is advisable to entrust the responsibility of sterilization and vaccination to NGO'S or other agencies in a decentralized manner. A Report of their activities must be submitted to the BBMP on a regular basis for the latter's scrutiny and verification;
(3) Stray dogs which are incurably ill or mortally wounded as diagnosed by a qualified veterinarian to be euthanized in terms of Rule 9 of the said ABC Rules, 2001;
(4) Furious or dumb rabid dogs to be dealt with in terms of the Rule 10 of the said Rules;
(5) Dogs which do not come within the scope of Rule 9 or 10 but which are a menace or cause nuisance irrespective of whether there is evidence of such dogs having mauled or bitten children or adults could be exterminated in the manner specified in Rule 9 of the ABC Rules, 2001 under the orders of the Commissioner of the BBMP as per the provisions of KMC Act, 1976;
(6) The BBMP must take serious note of complaints with regard to unruly stray dogs by setting up a complaint cell in various zonal offices of the B.B.M.P, and act in accordance with law and also having regard to the observations made herein -7- NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 above, particularly having regard to Section 11 of 1960 Act read with Rules 9 and 10 of the ABC Rules 2001 in the matter of culling of stray dogs;
(7) Having regard to the interpretation given by us, to the Central as well as the State Laws, Rule 7 of ABC Rules 2001 does not require to be struck down. But sterilization and vaccination of stray dogs must be carried out on a regular basis and by holding additional camps for such purpose at the initiative of the B.B.M.P.;
(8) The BBMP to ensure that the Rules for clearance of Municipal Solid Waste be enforced, so that garbage found in the city of Bangalore, is not a reason for stray dog menace;
(9) The BBMP to frame guidelines for the grant of compensation to the victims of attacks by the stray dogs;
(10) The owners of dogs to ensure that their pet dogs are not a menace or cause nuisance in public places. It would be mandatory for the owners of the dogs to take out their dogs on public roads or public places along with a leash and not let their dogs loose on the streets, so as to avoid a confrontation with street dogs or other pet dogs;
(11) The citizens must also bear in mind that street dogs also have a right to live and therefore, must refrain from attacking these dogs by stone throwing or by beating etc. They must ensure that children do not go near the stray dogs either to play with them or to feed them."
12.7.xxxxxxxx 12.8 A perusal of all the aforesaid decisions leaves no doubt in my mind that there is a statutory obligation which has been imposed upon the local municipal authorities in this case being respondents No.2 and 4 to safeguard the human beings cohabitating the particular local area from the danger of any stray dogs and/or any attack by such stray dogs.
-8-NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 12.9 xxxxxxxxx 12.10 xxxxxxx 12.11 In the present case, despite repeated enquiry as regards the action taken by respondents No.2 and 4 for discharge of the statutory obligations, Sri.Shivaraj Hiremath, learned counsel for respondents No.2 and 4 is unable to point out any such action except to submit that the State has not provided adequate funds. Such a submission cannot be accepted in light of the aforesaid decision. There is nothing placed on record to indicate whether respondents No.2 and 4 had sought for any funds from the State or not nor has the State placed any records to indicate the sanction of funds to respondents No.2 and 4 or any other municipal authorities. In this background, it is but required for the State and the municipal authorities to follow the directions which have been issued by the Hon'ble Apex Court in SLP (C) No.691/2009 and other connected matters as also by this Court in Master Jishnu's case referred to above. The same are paraphrased once again as under:-
12.11.1. The Municipal authorities are directed to provide sufficient number of dog pounds within its jurisdiction;
12.11.2. The Municipal authorities are directed to provide sufficient number of animal kennels/shelters which can be managed by the animal welfare organisations operating within its jurisdiction. If no such animal welfare organisations is operating, it is the duty of the municipal authority to appoint a suitable person to manage such dog pounds/kennels/shelters.
12.11.3. The Municipal authorities are directed to conduct a study to arrive at and determine the number of dog vans required for capture and transportation of street dogs and procure such vans.
12.11.4. The Municipal authorities are directed to appoint trained dog catchers as may be required.-9-
NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 12.11.5. The Municipal authorities are directed to provide ambulance cum clinical van as mobile centre/s for sterilisation and immunisation;
12.11.6. The Municipal authorities are directed to make available incinerators for disposal of carcasses and periodic repair of animal/dog shelter or pound.
12.11.7. The Municipal authorities are directed to provide for infrastructure both physical and human as required under the Prevention of Cruelty to Animals Act, 1960, the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001, the Animal Birth Control (Dogs) Rules, 2001 as also the Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017;
12.11.8. The Municipal authorities are directed to create a web page on its web site where all the aforesaid data as also the following are uploaded/web hosted on a daily basis;
12.11.9. A census of street dogs in its jurisdiction to be prepared and web hosted;
12.11.10. The number of street dogs transported to the dog pounds/kennels to be uploaded/webhosted;
12.11.11. The number of dogs which are sterilized are to be web hosted.
12.11.12. The number of dogs which are immunized to be webhosted;
12.11.13. The number of carcasses which are incinerated to be webhosted;
12.11.14. The number of incidents of dog attacks/bites to be web hosted;
12.11.15. The number of deaths caused on account of dog attacks to be web hosted;
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NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 12.11.16. The amount of compensation disbursed to persons who are victims of such dog attacks to be webhosted.
12.12 The decision of this Court in Master Jishnu's case though was relating to attack of dogs within the jurisdiction of BBMP and various directions were issued to the BBMP, I am of the considered view that the attack by dogs whether within BBMP jurisdiction and/or within the jurisdiction of respondents No.2 and 4 would not make any difference. The contention of Sri.Shivaraj Hiremath, learned counsel for respondent Nos.2 and 4 that the decision in Master Jishnu's case supra would not be applicable to the present case is therefore liable to be rejected, more so since the attack by street dogs in BBMP area cannot be different from an attack by street dogs in an area governed by the Zilla Panchayath, Taluk Panchayat or Village Panchayat. The obligations which have been imposed on the BBMP is also imposed on the Zilla Panchayath, Taluk Panchayat or Village Panchayat. It is only the nomenclature of the entity which is different. Hence, the directions issued by this Court in Master Jishnu's case supra are paraphrased to apply to Respondent No. 2 to 4 who are Zilla Panchayath, Taluk Panchayat or Village Panchayat as under:-
12.12.1. The Animal Welfare Organisations and the Monitoring Committee as contemplated under the ABC Rules, 2001 to ensure complete sterilization and vaccination of all healthy stray dogs, particularly, within the territorial jurisdiction of the Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be, as per Rules 7 and 8;
12.12.2. It is advisable to entrust the responsibility of sterilization and vaccination to NGO'S or other agencies in a decentralized manner. A Report of their activities must be submitted to the Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be, on a regular basis for the latter's scrutiny and verification;
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NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 12.12.3. Stray dogs which are incurably ill or mortally wounded as diagnosed by a qualified veterinarian to be euthanized in terms of Rule 9 of the said ABC Rules, 2001;
12.12.4. Furious or dumb rabid dogs to be dealt with in terms of the Rule 10 of the said Rules;
12.12.5. Dogs which do not come within the scope of Rule 9 or 10 but which are a menace or cause nuisance irrespective of whether there is evidence of such dogs having mauled or bitten children or adults could be exterminated in the manner specified in Rule 9 of the ABC Rules, 2001 under the orders of the Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be;
12.12.6. Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be, must take serious note of complaints with regard to unruly stray dogs by setting up a complaint cell and act in accordance with law and also having regard to the observations made herein above, particularly having regard to Section 11 of 1960 Act read with Rules 9 and 10 of the ABC Rules 2001 in the matter of culling of stray dogs;
12.12.7. Sterilization and vaccination of stray dogs must be carried out on a regular basis and by holding additional camps for such purpose at the initiative of the Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be;
12.12.8. The Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be, to ensure that the Rules for clearance of Solid Waste be enforced, so that garbage found in the surroundings of people inhabited area, is not a reason for stray dog menace;
12.12.9. The Zilla Panchayath, Taluk Panchayat or Village Panchayat as the case may be, to frame guidelines for the grant of compensation to the victims of attacks by the stray dogs;
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NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 12.12.10. The owners of dogs to ensure that their pet dogs are not a menance or cause nuisance in public places. It would be mandatory for the owners of the dogs to take out their dogs on public roads or public places along with a leash and not let their dogs loose on the streets, so as to avoid a confrontation with street dogs or other pet dogs;
12.12.11. The citizens must also bear in mind that street dogs also have a right to live and therefore, must refrain from attacking these dogs by stone throwing or by beating etc. They must ensure that children do not go near the stray dogs either to play with them or to feed them.
12.13. In view of the above, I answer Point No.1 that there is a public duty and/or statutory duty vested with the municipal authorities to safeguard the citizens residing in the area from attack of street dogs and that the municipal authorities are responsible and as such are required to follow the above directions. A compliance report to be filed within a period of three months from the date on which this Order is webhosted."
6. In so far as the quantum of compensation is concerned, the learned Single Judge referred to certain judgments of the Apex Court and came to the conclusion that the writ petitioner/claimant was entitled to a sum of Rs.10 lakhs by way of compensation with interest at 6% per annum from the date of the death of the infant of the petitioner till the date of payment. While doing so, this court held as under:
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NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 13.3 There can be no value which can be attributed to a human life. Money cannot make good the loss of minor child as caused to the petitioner.
The compensation which is required to be awarded in such cases would have to be determined on a case-to-case basis. There being no guidelines as such which are in place for application in the present matter.
13.4 The petitioner has sought for a sum of Rs.25 lakhs on account of death and further reimbursement of medical expenses incurred. As regards the reimbursement of medical expenses incurred, there are no documents produced by the petitioner to establish any such expenses having been incurred. However, it also cannot be denied that the petitioner might have incurred certain expenses more so when the incident is established, child having taken to the hospital, autopsy having been conducted in relation thereto is also established and admitted. The medical report as also photographs which have been produced along with the petition leave no doubt in my mind that certain amounts of expenses would have been incurred.
13.5 As regards payment of the compensation caused due to the death of a child, considering that a minor child has died who would have been a support for the petitioner during his old age as also considering the loss of love and affection the mental agony caused to the petitioner and his family due to the untimely death of the minor child in such a bizarre and cruel manner I deem it fit to award a sum of Rs.10 lakhs as compensation payable by respondent No.2 to the petitioner. The said amount shall also bear interest @ 6% p.a. calculating from the date of death of the minor child till the disbursement of the amount. While doing so, deduction for the already deducted amount of Rs.1,50,000/- shall be given. The
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NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 amount in deposit of Rs.1,00,000/- is directed to be released to the petitioner."
7. After having come to the aforesaid conclusion, the learned Senior Judge issued the following directions:
"Municipal authorities like Respondent No.2 to 4 are held to be liable under public law for any injury and/or death caused to any citizen on account of attack by street dogs within the jurisdiction of the said municipal authority;
Respondent No.2 is directed to comply with the directions issued at in the present order within a period of 4 months from today and file an affidavit of compliance, Respondent No.1 shall make necessary arrangements and provide the requisite funds for the Respondent No.2 to comply with the above directions;
Respondent No.2 is directed to make payment of Rs.10 lakhs as compensation to the petitioner along with interest @ 6% p.a. calculated from 29.11.2018 being the date of death of the minor son within a period of four weeks from the date of receipt of a copy of this order. While making payment of the said amount, due deduction for the already paid amount of Rs.1,50,000/- shall be given. The Counsel for the Petitioner is permitted to serve a copy of this order on the respondents.
The petitioner is at liberty to produce the medical bills with proof of payment to respondent No.2 which shall be considered and payment made within a period of four weeks from the date of receipt of such bills and proof of payment;
Respondent No.2 is also directed to make payment of Rs.20,000/- being the cost of the present proceedings within a period of four weeks from the date of receipt of copy of this order."
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8. As stated supra, the State of Karnataka and the Deputy Commissioner who were arrayed as respondent Nos.1 and 3 in the writ petition have not preferred any appeal and it is only the Zilla Panchayath and Gram Panchayath, who are arrayed as respondent Nos.2 and 4 in the writ petition who are aggrieved by the impugned order of the learned Single Judge fastening the liability to pay the compensation by them and as well as the quantum of compensation. In the present appeal, the appellant has deposited Rs.11,75,033/- which has been recorded by this Court in the order dated 24.05.2023.
9. After having heard the learned counsel for the parties and on perusal of the material on record, we are of the considered opinion that the impugned order passed by the learned Single Judge cannot be said to be suffering from any illegality or infirmity nor the same can be said to be capricious, perverse or contrary to the material on record warranting interference by this Court in the present appeal.
Accordingly, we do not find any merit in the appeal, hence we pass the following:
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NC: 2023:KHC-D:7978-DB WA No. 100117 of 2023 ORDER The appeal is dismissed.
It is made clear that the impugned order dated
10.06.2022 passed in Writ Petition No.110352/2019 by the learned Single Judge fastening the liability on the appellant/punchayath authorities shall not be construed as a precedent or having any precedential value for the purpose of fastening liability to pay the compensation upon the Panchayath authorities in any other case.
Registry is directed to release the aforesaid amount of Rs.11,75,033/- in favour of the claimant/respondent No.1 forthwith without any further delay.
Sd/-
JUDGE Sd/-
JUDGE RH LIST NO.: 1 SL NO.: 53