Vande Matram friends! Welcome to the series on Animal Welfare in India. I am feeling proud of myself for presenting this series in front of you and I pray to Thy Almighty that I can share a maximum of information in this regard with you!
Those who want justice must knock on the doors of Courts!
Introduction:
In this article, you will know about a judgment of the Gujarat High Court in regards to Cattle Trespass. The judgment was written by Mr. Bhaskar Bhattacharya and J. B. Pardiwala. The case was decided on 12.03.2012.
Petitioner is a trust named Mahisagar Mataji Samaj Seva Trust through its President.
While there are three respondents: 1) State of Gujarat through Secretary Home Department, 2) Vadodara Municipal Corporation and 3) other.
Facts of the case:
The petitioner, a public charitable trust registered under the Bombay Trusts Act, at Vadodara has redressed a very serious grievance on behalf of the Maldharis (cattle owners) as regards a very highhanded and arbitrary action on the part of the respondents-authorities in not releasing a cattle impounded under the provisions of the Cattle Trespass Act, 1871 (for short, 'the Act').
The only source of livelihood for the Maldhari community is the income derived from the sale of milk and milk products. For this purpose, each and every Maldhari family has cattle. Each of the family is holding a valid permit issued by the Health Department of Vadodara Municipal Corporation for keeping cattle. As per the data provided, there are approximately 2000 families within the revenue limits of Vadodara settled at different places and the total number of cattle reared is more than 10000.
By provisions of the Act as and when the authority concerned seizes any cattle found straying on public roads, such cattle are sent to the nearest cattle pounds which are being managed by the Corporation. When the cattle owner approaches the authority for release of their cattle on payment of fine, the cattle are not being released on the ground that an important festival is on the way and they would be released only after the festival is over, justifying that during the period of an important festival such cattle would cause a lot of inconvenience and nuisance to the general public at large.
The present case is concerned, the fine which is being imposed is as per the notification issued by the Home Department of the State Government dated 15th October 2003. The said notification amends the rates of fine fixed for stray animals on the streets and roads of Municipal Corporations areas of the State under Government.
Dt. 22nd July 2011: hundreds of cattle were seized by the concerned department of the Vadodara Municipal Corporation and were sent to cattle pounds. Various applications were preferred by the respective cattle owners requesting for the release of their cattle on accepting the requisite amount of fine.
5th July 2010: a legal notice issued by an advocate to the Municipal Corporation in this regard to release the cattle. Representations were also made to the Collector, Vadodara Municipal Corporation. In spite of these, the respondents-authorities refused to release the cattle and kept them at cattle pounds in an unauthorised manner.
Hardly any fodder or water is being provided to them, as a result of which most of the cattle die and this again is nothing short of cruelty to the animals, which is otherwise also an offence under the provisions of Cruelty to Animals Act. If there is a procedure prescribed for the seizure of cattle and also for the release of such cattle, then the authorities are duty-bound to strictly comply with such procedure of law as prescribed under the Act.
Points raised by respondents:
A number of cattle are found straying on public roads and many cases of accidents have been reported. Due to such accidents occurring as a result of such cattle straying on public roads, the Corporation had to take steps for seizure of such cattle on daily basis. A separate independent department is monitoring the seizure of cattle which are found straying on the roads. The respondent Corporation has provided at least three cattle sheds; one is recognised as 'Khaswadi' cattle-shed having a capacity to accommodate around 190 cattle, the other two are recognised as 'Panigate' cattle-shed having a capacity to accommodate around 83 cattle, and 'Lalbaug' shed having a capacity to accommodate around 60 animals. For maintaining such cattle pounds, there is a provision for pure drinking water and fodder.
On seizure of the cattle by the Corporation, such cattle are handed over to local public charitable trusts after 15 days and such public charitable trusts would take care of such cattle. Such public charitable trusts are running 'Panjrapole' where cattle are being taken care of.
The Corporation received a number of representations from the citizens complaining about the nuisance being caused by straying cattle. Due to the festival of 'Janmashtmi' many cattle were seized and they were not released in spite of the fact that the owners of the cattle were ready and willing to deposit the fine.
Provisions of Cattle Trespass Act, 1871:
The Cattle Trespass Act, 1871 came to be enacted with the primary object to consolidate the law relating to cattle trespass. The said Act is a colonial law and is still enacted in independent India.
Section 11 of the Act empowers the authority concerned to seize cattle found straying on public roads, etc. Section 11 reads as under:
11. Cattle damaging public roads,
canals and embankments. - Persons in charge
of public roads, pleasure-grounds, plantations, canals, drainage-works,
embankments and the like and officers of police, may seize or cause to be
seized any cattle doing damage to such roads, grounds, plantations, canals,
drainage-works, embankments and the like, or the sides or slopes of such roads,
canals, drainage-works or embankments or found straying thereon, and shall send
them or cause them to be sent within twenty-four hours to the nearest pound.
Section 4 of the Act provides for the establishment of pounds.
4. Establishment of pounds.- Pounds shall be established at such places as the Magistrate
of the District, subject to the general control of the State Government, from
time to time directs.
The village by which every pound is
to be used shall be determined by the Magistrate of the District."
Section 5 provides for control of pounds.
5. Control of pounds. Rate of
charge for feeding impounded cattle.- The
pounds shall be under the control of the Magistrate of the District; and he
shall fix, and may from time to time alter the rates of charge for feeding and
watering impounded cattle.
Section 6 provides for appointment of pound-keepers.
6. Appointment of pound-keepers.- The State Government shall appoint a pound-keeper for every
pound.
The duties of pound-keepers have been prescribed under Sections 7, 8 and 9 of the Act, which read as under:
7. To keep registers and furnish
returns. - Every pound-keeper shall keep
such registers and furnish such returns as the State Government from time to
time directs.
8. To register seizures.- When cattle are brought to a pound, the pound-keeper shall
enter in his registers,-
(a) the number and description of
the animals,
(b) the day and hour on and at which
they were so bought,
(c) the name and residence of the
seizer, and
(d) the name and residence of the
owner, if known, and shall give the seizer or his agent a copy of the entry.
9. To take charge of and feed
cattle.- The pound-keeper shall take charge
of, feed and water the cattle until they are disposed of as hereinafter
directed.
Section 12 of the Act provides for the recovery of fines for cattle impounded.
12. Fines for cattle impounded.- For every head of cattle impounded as aforesaid, the
pound-keepers shall levy a fine in accordance with the scale for the time being
prescribed by the State Government in this behalf by notification in the
Official Gazette. Different scales may be prescribed for different local areas.
All fines so levied shall be sent to the Magistrate of the District through
such officer as the State Government may direct.
List of fines and charges for
feeding.- A list of the fines and of the
rates of charge for feeding and watering cattle shall be posted in a
conspicuous place on or near to every pound.
Section 13 provides for the procedure when the owner claims the cattle and pays fines and charges.
13. Procedure when owner claims
the cattle and pays fines and charges. - If
the owner of the impounded cattle or his agent appear and claim the cattle, the
pound-keeper shall deliver them to him on payment of the fines and charges
incurred in respect of such cattle.
The owner or his agent, on taking
back the cattle, shall sign a receipt for them in the register kept by the
pound-keeper.
Section 14 provides for the procedure if cattle be not claimed within a week.
14. Procedure if cattle be not
claimed within a week.- If the cattle be not
claimed within seven days from the date of their being impounded, the
pound-keeper shall report the fact to the officer in charge of the nearest
police-station, or to such other officer as the Magistrate of the District
appoints in this behalf.
Such officer shall thereupon stick
upon in a conspicuous part of his office a notice stating -
(a) the number and description of
the cattle,
(b) the place where they were
seized,
(c) the place where they are
impounded, and shall cause proclamation of the same to be made by beat of drum
in the village and at the market-place nearest to the place of seizure.
If the cattle be not claimed within
seven days from the date of the notice, they shall be sold by public auction by
the said officer, or an officer of his establishment deputed for that purpose,
at such place and time and subject to such conditions as the Magistrate of the
District by general or special order from time to time direct:
Provided that, if any such cattle are, in the opinion of the Magistrate of the District, not likely to fetch a fair price if sold as aforesaid, they may be disposed of in such manner as he thinks fit.
Section 15 is with regard to the delivery of cattle to the owner disputing the legality of the seizure.
15. Delivery to owner disputing legality of seizure but making deposit.- If the owner or his agent appear and refuse to pay the said fines and expenses, on the ground that the seizure was illegal and that the owner is about to make a complaint under section 20, then, upon deposit of the fines and charges incurred in respect of the cattle, the cattle shall be delivered to him.
Section 16 provides for the procedure when the owner refuses or omits to pay the fines and expenses.
16. Procedure when owner refuses or
omits to pay the fines and expenses.- If the
owner or his agent appears and refuses or omits to pay or (in the case
mentioned in section 15) to deposit the said fines and expenses, the cattle, or
as many of them as may be necessary, shall be sold by public auction by such
officer at such place and time, and subject to such conditions, as are referred
to in section 14.
Deduction of fines and expenses.- The fines leviable and the expenses of feeding and watering,
together with the expenses of sale, if any, shall be deducted from the proceeds
of the sale.
Delivery of unsold cattle and
balance of proceeds.- The remaining cattle
and the balance of the purchase-money, if any, shall be delivered to the owner
or his agent, together with an account showing-
(a) the number of cattle seized,
(b) the time during which they have
been impounded,
(c) the amount of fines and charges
incurred,
(d) the number of cattle sold,
(e) the proceeds of sale, and
(f) the manner in which those
proceeds have been disposed of.
Receipts.- The owner or his agent shall give a receipt for the cattle
delivered to him and for the balance of the purchase-money (if any) paid to him
according to such account.
Section 20 of the Act provides for power to make complaints.
20. Power to make complaints.- Any person whose cattle have been seized under this Act, or, having been so seized, have been detained in contravention of this Act, may, at any time within ten days from the date of the seizure, make a complaint to the Magistrate of the District or any Magistrate authorized to receive and try charges without reference by the Magistrate of the District.
Section 22 of the Act provides for compensation for illegal seizure or detention.
22.Compensation for illegal seizure or detention.- If the seizure or detention be adjudged illegal, the Magistrate shall award to the complainant, for the loss caused by the seizure or detention, reasonable compensation, not exceeding one hundred rupees, to be paid by the person who made the seizure or detained the cattle together with all fines paid and expenses incurred by the complainant in procuring the release of the cattle, Release of cattle.- And, if the cattle have not been released, the Magistrate shall, besides awarding such compensation, order their release and direct that the fines and expenses leviable under this Act shall be paid by the person who made the seizure or detained the cattle.
Section 27 is with regard to the penalty which can be imposed on the pound-keeper who failed to perform his duty under the Act.
27. Penalty on pounds-keeper
failing to perform duties.- Any pound-keeper
releasing or purchasing or delivering cattle contrary to the provisions of
section 19, or omitting to provide any impounded cattle with sufficient food
and water, or failing to perform any of the other duties imposed upon him by
this Act, shall, over and above any other penalty to which he may be liable, be
punished, on conviction before a Magistrate, with fine not exceeding fifty
rupees. Such fines may be recovered by deductions from the pound-keeper's
salary.
Section 29
29. Saving of right to sue for
compensation.- Nothing herein contained
prohibits any person whose crops or other produce of land have been damaged by
trespass of cattle from suing for compensation in any competent court.
Provisions of PACC:
Section 2(a)
Section 2(a) of the Prevention of Cruelty to Animals Act, 1960 reads thus, 'animal' means any living creature other than a human being.
Section 3
3. Duties of persons having
charge of any animals: It shall be the duty
of every person having the care or charge of any animal to take all responsible
measures to ensure the well-being of such animal and to prevent the infliction
upon such animal of unnecessary pain or suffering.
Thus, PCAA imposes an obligation upon all persons/authorities for caring for the animals providing all necessary facilities for their care and life. In the above referred provision the words "charge of any animal" are significant. It is the duty of the custodian of animals to take care of animals including saving its life.
Constitutional provisions:
Article 51A
Article 51-A of the Constitution of India also provides that it shall be the duty of every citizen to have compassion for living creatures. The Constitution has imposed fundamental duties to all citizens to have compassion towards living creatures. The words used here are "living creatures". Hence, all the citizens are required to have compassion towards all living creatures including animals, birds, reptiles, and even small insects also.
The Hon'ble Supreme Court has expressed a new dimension to the words "to have compassion for living creatures" of Article 51-A(g). A Constitution Bench of 7 Judges held in paragraph 58 as under:
“In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC
428, a three-Judge Bench of this Court made it clear that fundamental duties,
though not enforceable by writ of the court, yet provide valuable guidance and
aid to interpretation and resolution of constitutional and legal issues. In
case of doubt, peoples' wish as expressed through Article 51-A can serve as a
guide not only for resolving the issue but also for constructing or moulding
the relief to be given by the courts. The fundamental duties must be given
their full meaning as expected by the enactment of the Forty-second Amendment.
The Court further held that the State is, in a sense, 'all the citizens placed
together' and, therefore, though Article 51A does not expressly cast any
fundamental duty on the State, the fact remains that the duty of every citizen
of India is, collectively speaking, the duty of the State.”
Now as per the ruling, fundamental duty under Article 51A(g) to have compassion towards living creatures is extended to State Government and Government authority. State is equally responsible for due care and protection of animals.
The universal declaration of animal rights
International League for Animal Rights has finally approved the declaration at London on 21st-23rd September 1977. Declaration proclaimed on 15th October 1978 United Nations and UNESCO has ratified the declaration Preamble "Considering that all living being possess natural rights and that any animal with a nervous system has specific rights."
Article 1: All animals are born
equal and they have the same rights to existence.
Article 2: (a) Every animal has the
right to be respected; (b) Man, like the animal species, cannot assume the
right to exterminate other animals or to exploit them, thereby violating this
right. He should use his conscience for the service of the animals; (c) Every
animal has the right to consideration, good treatment and the protection of
man.
Article 3: (a) No animal should be
submitted to bad treatment or cruel actions; (b) If the death of an animal is
necessary, this should be sudden and without fear or pain.
Article 4: (a) All animals belonging
to a wild species have the right to live free in their natural environment, and
have the right to reproduce; (b) Each deprivation of freedom, even for
educational purposes, is in opposition to this right.
Article 5: (a) Every animal that
usually lives in a domestic environment must live and grow to a rhythm natural
to his species; (b) Any change to this rhythm and conditions dictated by man
for mercantile purpose, is a contradiction of this law.
Article 6: (a) All animals selected
by man, as companions must have a life corresponding to their natural
longevity; (b) To abandon an animal is a cruel and degrading action.
Article 7: Working animals must only
work for a limited period and must not be worked to exhaustion. They must have
adequate food and rest.
Article 8: (a) Experiments on
animals that cause physical and mental pain, are incompatible with animal
rights, even if it is for medical, scientific, commercial or any other kind of
experiment; (b) A substitute technique must be investigated and developed.
Article 9: In the eventuality of an
animal bred for food, it must be fed, managed, transported and killed without
it being in fear or pain.
Article 10: (a) No animal should be
used for entertainment; (b) Animal exhibitions and shows that use animals are
incompatible with an animal's dignity.
Article 11: Every action that causes
the unnecessary death of an animal, is cruel which is a crime against life.
Article 12: (a) Every action that
causes the death of a lot of wild animals is genocide, that is a crime against
the species; (b) Pollution and destruction leads to the extinction of the
species.
Article 13: (a) Dead animals must be
treated with respect; (b) Violent scenes, where animals are the victims, must
be forbidden at the cinema and on TV, unless they are for the demonstration of
animal rights.
Article 14: (a) Protection and
safeguarding associations must be represented at government level; (b) Animal
rights must be defended by law as are human rights.
"The human species must consider itself an element of the terrestrial habitat and must respect co-existence and symbiosis. Any failure to respect these is an attack on nature, prejudicial to the whole ensemble of inanimate and animate beings." - Hon'ble Mr. Justice V. R. Krishna Iyer in an article named "The Rights of our Animal Brethren"
"The unity that runs thro' Creation is thus a basic truth. Nature has thus an integral relation with animalia and homo sapiens is an inseverable part of the evolutionary spirit the highest peak of ecological ascent. These great values are reflected in our constitution, a rare good fortune and a binding recognition. The State and the citizen are duty bound to promote and preserve ecology and environment as mandated by Articles 48A and 51A." ." - Hon'ble Mr. Justice V. R. Krishna Iyer in an article named "The Rights of our Animal Brethren"
Ancient beliefs:
The universality of divinity is a fundamental faith of Indian humanity rooted in the Rig Veda and manifest in the spiritual core of all religions.
The ancients have stated that God sleeps in the mineral, awakens in the vegetable, walks in the animals, and thinks in man.
The philosophical perspective of Animal Welfare is thus part parcel of our cultural heritage. Every time cruelty is practiced on man or beast or bird or insect, we do violence to the Buddha and Mahavira. Every torture on an animal and every export of animals is a sin to the memory of the founders of Bhartiya Sanskar.
Interpretation of provisions and analysis of facts by
Court:
The Act undoubtedly empowers the authority concerned to seize or cause to be seized any cattle doing damage to such public roads, pleasure-grounds, plantations, canals, drainage-works, embankments, and the like, but at the same time, Section 13 of the Act also provides that if the owner of the impounded cattle or his agent appears and claims the cattle, the pound-keeper shall deliver such cattle to him on payment of fines and charges incurred in respect of such cattle. The mandate of the law is very clear. Once the owner of the cattle is ready and willing to pay the fine for getting his cattle released then the authority is duty-bound to release such cattle. If such cattle are once again found straying on public roads then it is always open for the authority to seize the same.
The court does not want to convey that public nuisance should be overlooked at the expense of animal rights. Public nuisance must be taken care of but the same must be taken care of only in accordance with law and not otherwise. It is always open for the authorities concerned to curb the menace of cattle straying on public roads and causing a nuisance, but when it decides to take steps under the law, then at that stage the authorities are expected and are duty-bound to treat such cattle with compassion even while keeping them at cattle-pound or at 'Panjrapole'.
We are constrained to observe this because over a period of time many cases have come to our notice that once cattle go to a cattle-pound or a 'Panjrapole', it is made to suffer and ultimately dies. Many cases have been reported where out of hundreds of seized cattle, hardly one cattle remains alive. The only reply to this so far has been that the cattle died due to some disease.
Directions given by the Court:
The authorities concerned shall strictly abide by the provisions of the Cattle Trespass Act, 1871;
The authorities concerned shall release the cattle seized under Section 11 of the Act, no sooner the owners of the cattle or their agent appear and claim the cattle, on payment of fines and charges incurred in respect of such cattle. At that stage, the authority shall not refuse release of the cattle on the ground of festival etc.;
The authorities concerned shall ensure that the pound-keepers appointed under Section 6 of the Act strictly comply with and abide by the provisions of the Act and perform their duty as prescribed under the Act;
The authorities concerned shall take care to see that if the cattle are not claimed by anyone within 7 days from the date of their being impounded, the authorities concerned shall comply with the provisions of Section 14 of the Act and take care to see that the cattle are kept in a good condition by providing water and fodder;
All District Magistrates of the State of Gujarat are hereby directed to ensure that the provisions of the Cattle Trespass Act, 1871 are scrupulously complied with and any violation of the same shall be dealt with strictly in accordance with the law.
Note: Part in Red is reproduced as it is from the Bare Act.
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