Kerala High Court
Raveendran Nair. B vs The District Magistrate on 27 September, 2016
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938
WP(C).No. 34144 of 2016 (P)
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PETITIONER(S):
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RAVEENDRAN NAIR. B.,
AGED 42 YEARS, S/O BALAKRISHNAN NAIR,
THRIKKRUKUDY VEETIL, THRIKKARIYOOR P.O.,
KOTHAMANGALAM, ERNAKULAM-686 692.
BY ADVS.SRI.S.SUNIL MAURYAN,
SRI.P.PREMAN.
RESPONDENT(S):
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1. THE DISTRICT MAGISTRATE,
CIVIL STATION, KAKKANAD,
ERNAKULAM-682 030.
2. THE SECRETARY,
PINDIMANA GRAMA PANCHAYAT,
KOTHAMANGALAM, ERNAKULAM-686 692.
R1 BY SR. GOVT. PLEADER SMT.K.R. DEEPA.
R2 BY ADV. SRI.P.V.BABY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 34144 of 2016 (P)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE PETITION FILED UNDER S.133 CR.PC
DATED 27.09.2016.
EXHIBIT P2 TRUE COPY OF THE EXHIBIT P1 VIDE NO.M1/77421/2016
DATED 27.09.2016 ISSUED FROM THE OFFICE OF THE
RESPONDENT NO.1.
EXHIBIT P3 TRUE COPY OF THE PUBLIC NOTICE ISSUED BY HON'BLE
JUSTICE SIRI JAGAN COMMITTEE.
RESPONDENT'S EXHIBITS:-
EXT.R2A COPY OF THE NOTICE DATED 04/10/2016 ISSUED BY THE
JUSTICE SIRIJAGAN COMMITTEE TO THE PANCHAYAT,
EXT.R2B COPY OF THE RESOLUTION NO.21 DATED 17/10/2016 AND
THE REPORT SUBMITTED BY THE SECRETARY TO THE
COMMITTEE ALONG WITH COVERING LETTER.
//TRUE COPY//
P.S.TO JUDGE
rs.
SHAJI P. CHALY, J.
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W.P.(C) No.34144 of 2016
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Dated this the 16th day of November, 2016
JUDGMENT
Petitioner has approached this Court seeking direction to the 1st respondent to take immediate action on Ext.P1 within a time frame. Ext.P1 is a complaint filed by the petitioner before the District Magistrate, Ernakulam under Sec.133(1)(f) of the Code of Criminal Procedure read with Sec.11(3)(c) of Prevention of Cruelty to Animals Act, 1960, seeking to eradicate the dog menace, by issuing appropriate direction to the 2nd respondent. Facts encapsulated for disposal of the writ petition are as follows:
2. Petitioner is a resident of Thrikkariyoor, Kothamangalam and is working as a salesman and residing within the jurisdiction of the 2nd respondent Panchayat. On 06.09.2015, when petitioner's son was playing on the verandah of petitioner's house, a pack of stray dogs attacked the child and the child sustained severe injuries and grievous hurt. The child had to undergo a critical eye surgery at a hospital in Angamaly and is under treatment since then.W.P.(C) No.34144 of 2016 2
Thereafter, on 12.09.2016, while petitioner's wife and son were walking on the road, a pack of stray dogs attacked them. However, the situation was saved by quickly moving away from the spot. It is stated, petitioner's son has sustained severe mental stress consequent to the two incidents of attack, and is even expressing fear to step out of the living room. It is also contended, petitioner himself has been a victim of stray dog attacks and is apprehensive of attack from dangerous stray dogs which will affect the life and livelihood of the petitioner and his family. It is also stated, not only the petitioner and his family is affected due to the stray dog menace, but the public at large is put to innumerable difficulties within the Panchayat area to have their normal life. It is in this background, petitioner has approached the 1st respondent with Ext.P1 dated 27.09.2016, submission of which is evident from Ext.P2 receipt received from the office of the 1st respondent. It is the contention of the petitioner, in spite of due diligence and efforts from the part of the petitioner, no action is taken by the 1st respondent. It is in this backdrop, seeking appropriate direction, this writ petition is filed. W.P.(C) No.34144 of 2016 3
3. Second respondent has filed a counter affidavit refuting the allegations made by the petitioner with respect to the inaction on the part of the Panchayat. It is also stated that the petitioner has already availed the remedy of Justice Siri Jagan Committee appointed by the Supreme Court to deal with the matter of stray dog menace. Consequent to which, the claim raised by the petitioner is numbered as Claim No.46/2016 and the Panchayat has received Ext.R2(a) notice for the same. It is also stated, Panchayat Committee met on 17.10.2016, adopted a resolution as per resolution No.21 and the same is also forwarded to Justice Siri Jagan Committee on 19.07.2016, evident from Ext.R2(b). According to the 2nd respondent, the subject matter is under the active consideration of the said Committee and the reliefs sought for in this writ petition is similar to the one filed by the petitioner before the Committee. Therefore, 2nd respondent seeks dismissal of the writ petition.
4. Petitioner has filed a reply, basically contending, the power conferred by the Apex Court on the Committee is only with respect to the nature of injury sustained consequent to attack of dogs and the said Committee is not vested with any W.P.(C) No.34144 of 2016 4 power to eradicate the dog menace prevailing within the jurisdiction of the 2nd respondent Panchayat. Ext.P3 is a notice published by Justice Siri Jagan Committee which shows the jurisdiction conferred on the said Committee and according to the petitioner, the Committee is not vested with any power to sit over the grievances put forth by the petitioner before the 1st respondent. Therefore, according to the petitioner, the 1st respondent is duty bound to consider Ext.P1 complaint submitted by the petitioner.
5. Heard learned counsel for the petitioner, learned Senior Government Pleader and the learned Standing Counsel appearing for the 2nd respondent, and perused the documents on record and the pleadings put forth by the respective parties.
6. The primary question to be considered is, whether Justice Siri Jagan Committee (a former Judge of this Court) constituted by the Apex Court as per its order dated 05.04.2016 is vested with any powers to consider the grievances put forth by the petitioner in Ext.P1 complaint. In my considered opinion, the power conferred on the 1st respondent under the provisions of the Code of Criminal Procedure may depend upon the power conferred on the said W.P.(C) No.34144 of 2016 5 Committee by the Apex Court. In that view of the matter, I have gone through the order dated 05.04.2016 passed by the Apex Court, which shows, the Committee is vested with powers to entertain complaints with regard to the injury sustained by persons in the dog bites, the nature and gravity of the injury, availability of medicines and treatment administered to them, the failure of treatment and its cure and in the case of unfortunate death, the particulars of the deceased and the reasons behind the same. The Committee is also directed to identify the centres/hospitals where the anti- rabies vaccines are available free of charge. On a further reading of the said order, it shows that the Committee is constituted for the purpose of enabling the Apex Court to think of granting of compensation or making certain arrangements. On a reading of the order dated 05.04.2016, it is clear, the powers vested with Justice Siri Jagan Committee is confined to the aspects mentioned above.
7. The question is whether the 1st respondent is vested with powers to adjudicate the issue invoking the power under Sec.133(1)(f) of the Cr.P.C., which reads as follows: W.P.(C) No.34144 of 2016 6
"133. Conditional order for removal of nuisance.--(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers--
(a) x x x x x x x x
(b) x x x x x x x x
(c) x x x x x x x x
(d) x x x x x x x x
(f) that any dangerous animal should be
destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order--
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees;
or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
of, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at W.P.(C) No.34144 of 2016 7 a time place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute."
8. On a reading of clause (f) of sub-section (1) of Sec.133, it is evident that the District Magistrate is vested with powers to destroy, confine or otherwise dispose of any dangerous animal. The contention advanced by learned counsel for the petitioner banking upon the said provision is that, irrespective of any law in force, the District Magistrate is vested with powers to destroy the animal or pass any orders as is contemplated under clause (f). According to the learned counsel, this is an independent power provided to the District Magistrate with the purpose and intention of saving the life of human beings and in that process, the District Magistrate need not be bothered about other existing laws in respect of the protection of animals.
9. Now the question is, what is the nature of power enjoyed by the District Magistrate under Sec.133(1)(f)? No doubt, power is vested on the District Magistrate to comprehend and contain danger from an animal. In my considered opinion, Sec.133(1)(f) is a procedure contemplated under the provisions of Code of Criminal Procedure. The same W.P.(C) No.34144 of 2016 8 can never be said to be a substantive law enabling the District Magistrate to exercise the power conferred under Sec.133 unmindful of the law passed by the State Legislature and the Parliament in respect of protection of animals. The Act, 1960 also enables the statutory authorities to take note of any dangerous situation and take appropriate action to avert any possibility of danger. That does not mean, unbridled power is vested with the District Magistrate, enabling to rely upon Sec.133 alone and do away with any dangerous animal. The power of the District Magistrate is circumscribed by appropriate statutory provisions. In a democratic State, where rule of law is prevailing, the law enforcing agency is duty bound to function subject to the laws, and also bearing in mind, he is a creature of law. It is the cardinal principle in law that "nobody is above law" and "law is above all". Moreover, I understand that the Apex Court has subsequently passed interim orders issuing directions to Justice Siri Jagan Committee. However, the said orders are not produced before me. Therefore, if any such orders are passed by the Apex Court, same are also be taken note of by the 1st respondent. W.P.(C) No.34144 of 2016 9
10. Therefore, there will be a direction to the 1st respondent to consider Ext.P1 application submitted by the petitioner, taking note of the directions and observations made above, and take a decision within four months from the date of receipt of a copy of this judgment, after issuing notice to the petitioner, 2nd respondent and any other interested or affected persons, even by issuing a public notice.
The writ petition is disposed of accordingly.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
19.11.2016