Bombay High Court
Sharmila Sankar And Ors vs The Union Of India And Ors on 16 January, 2023
Bench: G.S. Patel, S. G. Dige
15-ASWP-9513-2021+.DOC
Shubhada S Kadam
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9513 OF 2021
Sharmila Sankar & Ors ...Petitioners
Versus
The Union of India & Ors ...Respondents
WITH
INTERIM APPLICATION NO. 896 OF 2022
IN
WRIT PETITION NO. 9513 OF 2021
Thane Community for Protection and Care of ...Applicant
Animals
In the matter between
Sharmila Sankar & Ors ...Petitioners
Versus
The Union of India & Ors ...Respondents
WITH
INTERIM APPLICATION NO. 699 OF 2022
IN
WRIT PETITION NO. 9513 OF 2021
Nilima Kale & Anr ...Applicants
In the matter between
Sharmila Sankar & Ors ...Petitioners
Versus
The Union of India & Ors ...Respondents
Digitally
signed by
SHUBHADA
SHUBHADA SHANKAR
SHANKAR KADAM
KADAM Date:
Page 1 of 13
2023.01.18
14:23:55 16th January 2023
+0530
15-ASWP-9513-2021+.DOC
WITH
CONTEMPT PETITION NO. 350 OF 2022
Seawoods Estates Ltd through Authorised ...Petitioner
Representative Vineeta Srinandan
Versus
Mona Mohan & Ors ...Respondents
Ms Siddh Vidya, with Ankita Pawar, Sunita Rai & Abhimash i/b
Siddh Vidya & Associates, for the Petitioner in WP/9513/2021.
Mr DP Singh, for the Respondent Nos. 1 and 2.
Mr RP Ojha, with Ankit Ojha, for the Respondent No. 3.
Mrs Pratibha Gavhane, AGP, for the Respondent-State.
Ms Prerna Shukla, i/b Nitin V Gangal, for the Respondent No. 9
(CIDCO).
Mr Aditya Pratap, with Atithi Abhay, i/b Abhay Singh, for the
Respondent No. 14.
Mr Aditya Pratap, with Atithi Abhay, for the Respondent No. 17.
Mr Nausher Kohli, Amicus (appointed by Court).
CORAM G.S. Patel &
S.G. Dige, JJ.
DATED: 16th January 2023
PC:-
1. The six Writ Petitioners have moved this Court inter alia for
orders against the Commissioner, Navi Mumbai Municipal
Corporation (NMMC) and the Managing Director of CIDCO to
command them to identify 'feeding stations' for stray dogs in a
designated area within the precincts of the 17th Respondent.
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2. Broadly speaking, the Petition relates to a geographical area at
Seawoods Estate in Navi Mumbai. Respondent No. 17 is the
Seawoods Estates Ltd which manages that residential-cum-
commercial complex. There are various other Respondents.
3. This matter now stands administratively assigned to this
Bench as per the extant roster. On 10th January 2022, a Division
Bench of this Court (SJ Kathawalla and Milind N Jadhav, JJ) made a
detailed order. They noted that on 29th December 2021, they had
appointed Mr Nausher Kohli Advocate as amicus. He is present
today. Then there was a reference to an order dated 18th November
2015 by the Supreme Court in Animal Welfare Board of India versus.
People for Elimination of Stray Trouble & Ors (SLP (C) No.
691/2009). That order apparently contained a request to all High
Courts not to pass any orders relating to the 1960 Prevention of
Cruelty to Animals Act and the 2001 Rules pertaining to dogs. That
Division Bench was told by Mr Kohli that this order of 18th
November 2015 arose from an order and judgment dated 19th
December 2008 of a Full Bench of this Court in People for
Elimination of Stray Troubles v. State of Goa and Ors.1 By that 2008
judgment, the Full Bench considered whether the Animal Birth
Control (Dogs) Rules 2001 would prevail over the Mumbai
Municipal Corporation Act 1888, Maharashtra Municipalities Act
and the Goa Municipalities Act or vice versa.
4. The Supreme Court order of 18th November 2015 was
followed with several intervention applications. On 10th July 2017,
1 2008 SCC OnLine Bom 1229
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the Supreme Court noted that the principal issue involved was
whether it was the State Law or the 2001 Rules that would prevail.
This question would be decided first.
5. The Division Bench order of 10th January 2022 extracts the
prayers in the Petition from (A) to (I). For ease of the reference we
reproduce these prayers below:
"A. This Hon'ble court may be pleased to issue the writ
of mandamus and/or any appropriate Writs/Directions to
the Commissioner, Navi Mumbai Municipal Corporation
and Managing Director- CIDCO, jointly and severally,
being the Respondents No. 8 & 9 respectively, to identify
and confirm seven feeding stations for seven groups of dogs
in their movement territory, situated under the boundary of
total 50 ACRES area of respondent No.17-SEL.
B. This Hon'ble court may be pleased to issue
the writ of mandamus and/ or any appropriate writs/
directions to the Registrar of Companies / Respondent
No.2 to adjudicate and decide the letters /representations
dated 30/06/2021, 16/08/2021, 09/09/2021, 16/009/2021
etc. of the Petitioners filed against the circular
no.SEL/CLR/31/4458/2021 dated 2/06/2021, thereby
deciding the legality and validity of the aforesaid circular
viz. calling upon the exorbitant and illegal amount of
Rupees 5000 as a fine from the Petitioners
/feeders/caregivers of the Stray Dogs.
C. This Hon'ble court may be pleased to issue
the writ of mandamus and/ or appropriate writs/ directions
to the Commissioner of Police, Navi Mumbai being
Respondent No.18 herein, to monitor and maintain the law-
and-order situation for the better compliance of the orders
passed by this Hon'ble court and / or while and after
demarcation of seven feeding stations for the dogs in the
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said area of Respondent No. 7-SEL, thereby peaceful and
continuous feedings of dogs may be acted upon by the dog
feeders/interested residents of Respondent no.17-SEL.
D. This Hon'ble court be pleased to issue the
writ of mandamus and / or any appropriate writs
/directions to the Principal Secretary , Ministry of Urban
Development Department/Ministry of Animal Husbandry
the Respondent no. 5 herein to comply with the directions
dated 04/10/2016 issued by Hon'ble Supreme court in the
matter of Animal Welfare Board of India Vs. People for
elimination of Stray Trouble and the Notification no 2016/
-/ 275/- (Placed as Exhibit A-37) dated 11/11/2016 issued
by respondent no. thereby Constituting the Dog Monitoring
Committee to take care of health, wellbeing including
vaccination, sterilization and counting of the stray dogs in
the premises of Respondent No.17-SEL.
E. This Hon'ble court may be pleased to issue
the writ of mandamus and/ or any appropriate
Writs/Directions to Municipal Commissioner / the
Respondent No.8 to take appropriate, urgent and effective
steps for spreading awareness such as issuing notice and
directions to housing societies, housing complex for
implementation of ABC programs and animal laws.
F. This Hon'ble court may be pleased to issue
the writ of mandamus and/ or any appropriate
Writs/Directions to the Respondent No.11 / Director
general of Police to issues appropriate Circular/ Directions
in its department, to adopt proactive approach towards the
implementation of animal protection laws etc. for taking
appropriate actions as per the complaints/ advisory of
AWBI, Dog Monitoring Committee and individuals etc.
G. Be pleased to issue appropriate Writs
/Directions to Respondent No.3- Animal Welfare Board of
India to issue appropriate advisory /circular to all the
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Government departments as per the Office Memorandum
dated 26th May, 2006 of Ministry of Personal, Public
Grievances and Pensions, Department of Personal and
Training of Govt. Of India (Placed as Exhibit A- 76).
H. Pending the hearing and final disposal of this
petition and pending the hearing against the circular no.
SEL/CLR/31/4458/2021. dated 02/06/2021 issued by the
Respondent No.17-SEL (Placed as Exhibit A-29), before the
Respondent No.2 -Registrar of Companies, the
implementation and effect of the aforesaid circular dated
02/06/2021 be stayed forthwith.
I. Pending the hearing and final disposal of the
petition and or till the final implementation of
writs/directions /orders passed by this court the Petitioners
may be allowed to feed the Stray Dogs, habitants of
Respondent No.17- SEL premises in their feeding zone,
identified by the petitioners in their movement territory
between 9 :00 p.m. to 11 p.m. in the evening and 6 a.m. to 8
a.m. in the morning."
6. Having regard to this situation, the Division Bench directed
the parties to approach the Supreme Court for a clarification.
7. The matter was then periodically adjourned. We have been
shown a copy of the Supreme Court order dated 12th October 2022.
In regard to the present Writ Petition No. 9513 of 2021, the
direction is that this Court can hear and decide the Writ Petition in
accordance with law. Pending Contempt Petitions would also be
taken up. All contentions have been kept open.
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8. Interim Application No. 896 of 2022 is filed by the Thane
Community for Protection and Care of Animals. We are told that
this group is represented by one Gurumurthy Iyer, appearing in
person. Then there is Interim Application No. 699 of 2022 by two
individuals, Nilima Kale and another, represented by Ms Abha
Singh. There is a Contempt Petition 350 of 2022 filed by the 17th
Respondent through Mr Aditya Pratap.
9. The Contempt Petition will be taken up along with the main
Writ Petition.
10. We cannot dispose of either of the intervention Interim
Applications at this stage because neither Mr Gurumurthy nor Ms
Singh for the applicants in Interim Application No.699 of 2022 are
present before us today. Those Interim Applications will therefore
be taken up with the Petition itself.
11. A few directions are necessary. We find that among the papers
that seem to have been tendered and taken on record are some sets
of photographs, maps and so on. These are not formally part of any
record and seem to have been tendered by Mr Pratap on 3rd January
2022 or thereabouts. As a matter of orderliness, we will require this
material to be set on Affidavit by the 17th Respondent if it proposes
to rely on this. Otherwise, it is impossible to make a proper
reference to such loose papers. Particularly, if these records are now
shortly to go through the process of scanning and digitization, they
must be properly organized. Mr Pratap states that these documents
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tendered by him will be placed on a further Affidavit in both the
Writ Petition and in the Contempt Petition by 3rd February 2023.
12. On a bare reading of the prayers in the Petition it seems to us
that the reliefs that the Petitioners seek raise wider questions.
Whether the Petitioners can demand the segregation of such areas
in a privately owned and managed enclave is one question. There
are also issues relating to the care, feeding, sterilization and control
of stray dogs along with questions of protection of residents. Mr
Pratap submits out that there are far too many cases of attacks by
stray dogs. The rights of residents and citizens are affected by
allowing an uncontrolled growth and proliferation in the population
of stray dogs. The obligations of the local authorities will also need
to be examined.
13. It is pointed out on behalf of the Petitioners and by learned
amicus that the question also must relate to the constitutional duties
of every citizen especially the fundamental duty to be compassionate
to all living creatures. Mr Kohli points out that there is a well
established scientific and rational basis for population of stray dogs.
These are not vermin. A hard approach is only likely to have a
negative impact. Mr Kohli accepts that stray dogs require to be
handled, that is that provisions must be made so that they are
properly vaccinated, sterilized or neutered, always ensuring that this
is done in a humane manner and does not violate the Act itself. An
ongoing concern will be about feeding the dogs even if they are
vaccinated and put through a prescribed process of neutering to
prevent further proliferation and more aggressive behaviour. There
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is a significant amount of scientific and technical material
specifically in regard to feeding, sterilization and dog behaviour that
will need to be considered. Who, if anyone, should be required to
feed stray dogs; who should be permitted to feed them; and, most
importantly, where this ought to be done if at all are all questions we
will need to address.
14. Above all, a balance must be struck between the rights of the
residents and their concerns for safety, and the rights invoked by the
Petitioners.
15. We mean no disrespect to Mr Kohli, but we do believe that we
would benefit greatly from the assistance of a voluntary group that
has worked with stray dogs over some appreciable length of time
and has experience in such matters. Welfare of Stray Dogs or WSD
is a Mumbai-based organization that provides a range of services
including vaccination, care, rescue, shelter and is, we believe, well
aware of various factors that the Court is bound to consider. We do
not of course need the consent of any of the parties for ordering the
joinder of WSD. We direct that Welfare for Stray Dogs is to be
joined as the 19th Respondent to this Petition. It is to be joined
through:
Abodh Aras, CEO,
Welfare of Stray Dogs
Admin Address : Yeshwant Chambers, 2nd Floor,
C/o Mr Broacha
Bharucha Marg, Kala Ghoda
Mumbai 400023
Email: [email protected]; [email protected]
Mobile: +9198191 00808
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15-ASWP-9513-2021+.DOC
16. Mr Kohli informs us that he has the necessary papers in soft
copy. They will be forwarded to WSD at this address and email ids.
We also request that Mr Shiraz Rustomjee or Mr Zal Andhyarujina,
Senior Counsel, whoever is available, accept the brief to appear on
behalf of WSD. As to an advocate on record, we must offer WSD,
we must leave that to WSD and its counsel. We request Mr Kohli to
coordinate with Mr Rustomjee, Mr Andhyarujina and WSD to
ensure that they have the papers. The amendment is to be carried
out without need of any verification by Friday, 20th January 2023.
17. We clarify that WSD is also to serve a neutral role to assist the
Court regarding the technical and legal aspects stated in general
terms. WSD is not in particular concerned with any issue in or
around Seawoods Estates or which pertains to the 17th Respondent.
18. We permit all concerned to file by 24th February 2023 in hard
and soft copy--
(a) Advance concise notes of arguments not exceeding 20
pages in a font size not less than 12 pt Times New
Roman. There are to be no extracts from judgments or
documents in the submissions. References may be
included in footnotes.
(b) Chronology of dates and events.
(c) A properly indexed and paginated compilation of
authorities proposed to be relied on. The soft copy
must in particular not only be bookmarked but the
index or table of contents page must be hyper-linked to
the starting page of each of the compiled judgments.
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The relevant paragraphs must be shown in the index
itself.
19. These are to be filed in the Registry by 24th February 2023.
Soft copies may be made available to the Court Associate on a pen
drive.
20. Separately, by 24th February 2023 we request the Registry to
have the present records scanned and digitized. A copy of the final
scanned and digitized PDF file will be made available to all
advocates for convenience and free of charge.
21. By 10th February 2023, we permit the Petitioners to file an
Affidavit in Reply to any further Affidavit by 17th Respondent as also
to file a further Affidavit with subsequent developments. If the 17th
Respondent wishes or any of the other contesting Respondents wish
to reply to the Petition they must do so by 17th February 2023.
22. Ms Vidya, learned Advocate for the Petitioners, states that by
a communication dated 26th August 2022 from the Advocate for the
17th Respondent, and addressed to the present 4th Petitioner and
her husband, the 17th Respondent demanded payment of amounts
said to be due towards maintenance and repairs and something
called BR charges. We do not know what these are. We cannot and
will not assist the Petitioners in this matter in regard to any
maintenance or repair charges that are legitimately due. That is a
matter between the member and the Society. It is now argued that in
fact all regular maintenance and repairs charges etc have been paid,
but the 17th Respondent has levied charges for 'littering' because
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the 4th Petitioner also feeds stray dogs and that these charges are
being unlawfully shown as maintenance and repairs. It is impossible
to accept such submissions orally across the Bar. A copy of this
notice is not even made available to Mr Pratap who appears for the
17th Respondent. We note also that the notice is of 26th August
2022 and 4th Petitioner has done absolutely nothing from then to
apply for ad-interim relief. In fact, the notice of 26th August 2022 is
not even yet placed on Affidavit, leave alone being the subject a
formal Interim Application to which Mr Pratap's client can reply. A
copy of the notice is simply handed up and we are supposed to act
on it. We decline to do anything of that kind. A copy of the 26th
August 2022 communication is taken on record and marked "X" for
identification with today's date. Prima facie it seems that this has
nothing whatever to do with the issue involved in the Petition. It
seems to be sine personal dispute between the 4th Petitioner and
SEL. We leave it to the Petitioners to file an Interim Application for
appropriate reliefs and to have it served on the 17th Respondent. Ms
Vidya states that the Interim Application will be filed by Monday,
23rd January 2023. An Affidavit in Reply to the fresh Interim
Application is to be filed by 30th January 2023 by the 17th
Respondent. No rejoinder.
23. We will list the fresh Interim Application on 3rd February
2023.
24. In view of the Supreme Court order, we do not believe that
we can delay the hearing of the Petition. Accordingly, we list this
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Petition itself (with the intervention IAs and the Contempt Petition)
for final disposal on 2nd and 3rd March 2023 at 2.30 pm.
(S. G. Dige, J) (G. S. Patel, J)
16th January 2023
