Delhi District Court
Smt. Maya Devi vs The Veterinary Officer on 27 February, 2009
-1-
IN THE COURT OF SH. ANIL KUMAR, ACJ/ARC (NE),
COURT NO. 53,KARKARDOOMA COURTS, DELHI.
Suit no. 25/09
In the matter of :
Smt. Maya Devi
W/o Sh. Swami Nath
R/o E-3/20, Gali No. 5,
Sadatpur Extension,
Delhi - 110094. ........Plaintiff
Versus
1.The Veterinary Officer, Veterinary Department, MCD Shahdara Zone, Keshav Chowk, Delhi.
2. The Incharge, Krishna Goshala, Bawana, Delhi ........Defendants Date of Institution of Suit : 17.01.2009 Judgment reserved on : 25.02.09 Date of Decision : 27.02.09 Judgment :
SUIT FOR MANDATORY INJUNCTION By way of present suit plaintiff has sought a decree of mandatory injunction against the defendants thereby direction to defendants to release her cow.
Plaintiff's case in brief is that on 24.09.08 her cow was impounded by officials of MCD Shahdara Zone when this cow came out on the road/Gali at -2- Sadatpur Extension, Karawal Nagar, Delhi-94 and sent to defendant no. 2. Plaintiff approached to Dr. V. K. Singh within seven days from the date of impounding for release of cow but no action was taken then she sent a legal notice dt. 03.12.08 to Veterinary Officer for release of cow and deposit of all expenses and also for taking legal action for redration. Plaintiff further moved an application/request letter dt. 11.12.08 to defendant no. 1 but in his reply dt. 23.12.08 Zonal Veterinary Officer, the defendant no. 1 refused to release the cow. Hence, present suit filed by plaintiff.
Defendant no. 2 failed to appear despite service of summons. Defendant no. 1 filed a written statement and therein taken preliminary objection this suit is barred by the provisions of section 477/478 of the DMC Act. On merit defendant no. 1 has not denied the fact of impounding of cow of plaintiff. Defendant no. 1 has submitted that there is no provision to release rounded up cows and there progeny as such cattle are deported by MCD straight way to various Gosadans/Goshalas in Delhi against proper receipts and identification for their proper upkeep and maintenance.
This matter involves only legal issue and parties opted not to lead any evidence, hence, with the consent of both the parties this matter taken up for final hearing/argument in the absence of defendant no. 2. Ld. counsel of the parties of the suit have addressed argument on the legal issues (i) Whether suit is barred under section 477/478 of DMC Act and (ii) Whether there is no any provision for release seized street cattle.
Plaintiff and defendant no. 1 both have filed a written argument. I have gone through the written argument submitted by both the parties. It is admitted fact that cow of plaintiff was seized by defendant no. 1 on 24.09.08 and he received notice of plaintiff on 04.12.08 and received another notice on 11.12.08. Defendant no. 1 vide his letter dt. 23.12.08 refused to release -3- the cow of plaintiff.
Section 478(3) DMC Act provides exemption of notice if suit is for injunction of which the object would be defeated by the giving of notice or postponement of the institution of suit. In the case in hand notice as required u/s 478(1) has been given to defendant no. 1 but plaintiff has not awaited for two months after service of notice for institution of present suit and hence filed this suit on 17.01.09. In my opinion period of two months has been prescribed in section 478 DMC Act for the purpose of giving sufficient time to MCD and its officials for taking appropriate action on the claim on notice of any person. Since, in the present case defendant no. 1 has entertained the notice/application of plaintiff and sent refusal letter dt. 23.12.08, hence, there was no necessity for the plaintiff to await the expiry of two months and otherwise object for filing this suit would be defeated.
Present case clearly covered under section 478 (3) DMC Act. As such I find that this suit is not barred u/s 478 DMC Act.
It has been stated on behalf of defendant no. 1 that there is no provision of release of street cattle. Despite availing numerous opportunity defendant no. 1 has failed to place any judgment or any provision which prohibits the release of street cattle/cow in Delhi. Defendant has placed on record copy of letter dt. 08.05.08 issued by Addt Commissioner (Health & Edu.), copy of resolution dt. 06.11.06 of MCD, copy of letter dt. 23.12.08 returned to plaintiff, copy of letter dt. 19.09.08 written by Veterinary Officer to DCP (NE), copy of order dt. 08.03.06 in WP(C) no. 3791/2000 passed by Hon'ble High Court, Delhi. I have gone through the judgments cited by defendant no. 1 and other document placed on file. I find nothing therein which prohibits the release of seized cow.
Section 417 & 418 and Schedule 12 of DMC Act deals with animals -4- on in the street in the Municipal Act. Section 417 & 418 provides as under :-
"417. Premises not to be used for certain purposes without licence :-
(1)No person shall use or permit to be used premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely:-
(a) any of the purposes specified in Part I of the Eleventh Schedule;
(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or
(d) storing any of the article specified in Part II of the Eleventh Schedule except for domestic use of any of those articles:
Provided that the Corporation may declare that premises in which the aggregate quantity of articles stored for sale does not exceed such quantity as may be prescribed by bye-laws in respect of any such articles shall be exempted from the operation of clause (d).
(1)In prescribing terms of a licence granted under this section for the use of premises as mills or iron yards or for similar purpose the Commissioner may, when he thinks fit, require the licence to provide a space or passage within the premises for carts for loading and unloading purpose.-5-
(2)The Corporation shall fix a scale of fees to be paid in respect of premises licensed under sub-section (1):
Provided that no such fee shall exceed five hundred rupees.
418. Seizure of certain animals :- (1) If any horses, cattle or other quadruped animals or birds are kept on any premises in contravention of the provision of Section 417, or are found abandoned and roaming or tethered on any street or public place or on any land belonging to the Corporation, the Commissioner or any officer empowered by him may seize them and may cause them to be impounded or removed to such place as may be appointed by the Government or the Corporation, for this purpose and the cost of seizure of these animals or birds and f impounding or removing them and of feeding and watering them shall be recoverable by sale by auction of these animals or birds:
Provided that anyone claiming such animal or bird may, within seven days of the seizure get them released on his paying all expenses incurred by the Commissioner in seizing, impounding and in feeding and watering such animal or bird, and on his producing a licence for keeping these animals and birds issued under the provisions of Section 417.
(2)Whenever the Commissioner is of opinion that the user of any premises for any of the purposes referred to in sub-section(1) of Section 417 is causing a nuisance and such nuisance should be immediately stopped, the Commissioner may order the owner or the occupier of the premises to stop such nuisance within such time as may be specified in the order and in the event of the failure of the owner or occupier to comply with such order, the Commissioner may himself or by an officer subordinate to him cause such user to be stopped.-6-
(3)Without prejudice to the foregoing provisions of this section any person by whom or at whose instance any horses, cattle or other quadruped animals or birds are so kept, abandoned or tethered, shall also be punishable under this Act."
It has been prescribed in the 12th Schedule of DMC Act that act of keeping, abondanment on tethering of animals on any street or public place or any land belonging to corporation, make liable the owner of animal for fine of Rs. 100/-.
Ld. Counsel for defendant no. 1 has submitted that there is no difference between seizure, impounding and auctioning which has been mentioned in section 417 & 418 of DMC Act. It has been further submitted by Ld. Counsel for defendant that cow seized by defendant no. 1 can not be released because plaintiff has not made any claim within 7 days. During the course of argument defendant no. 1 has submitted that after seizure of cow, same was directly sent to Gosadans/Goshala and no any specific order of impounding has been passed and neither plaintiff has been prosecuted.
In view of provision of 417 & 418 DMC Act it is clear that any horse, cattle or any other quadruped animals or birds found abondaned and roaming or tethered on any street or public place or any land belonging to the corporation may be seized by commissioner or any officer empowered by him and they may cause the animals and birds to be impounded or removed to such place as a pointed by Govt. or corporation. Seized animal may be released to concerned person on his paying all expenses within 7 days.
There should be no doubt that act of seizure, impounding and auction are totally different to each other. In my opinion any animal seized by MCD may be impounded if owner of animal fails to make claim within 7 days or -7- fails to pay necessary expenses as decided by commissioner or authorised officer and only after impounding of animal same can be auctioned. In view of judgment cited by defendant no. 1 I find that auction of animal has been prohibited.
In the present case plaintiff has stated in the para no. 4 in the plaint that she approached to Dr. V. K. Singh for release of her cow in 7 days from the date of impounding but no needful action was taken. This fact has not been specifically denied in the WS. Further I find that after seizure of cow same has neither been duly impounded nor prosecution has been launched against plaintiff. Hence, I find that refusal of defendant to release the cow of plaintiff is unlawful. Plaintiff is entitled to get release her cow. Hence, this suit is decreed in favour of plaintiff and against the defendants and thereby defendants are directed to release the cow of plaintiff to plaintiff which was seized on 24.09.08.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT Dt. 27.02.09 (ANIL KUMAR) ACJ/ARC (NE), COURT NO. 53, KKD COURTS, DELHI.