HIGH COURT ORDER - PET DOGS - उच्च न्यायलय का पालतू कुत्तों पर आदेश।

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 7731/2014

ANUPAM TRIPATHI ..... Petitioner

Through: Petitioner-in-person.


Versus


UNION OF INDIA and ORS ..... Respondents

Through: Mr. Vikas Mahajan, CGSC with Mr. S.S. Rai, Adv. for UOI.

Ms. Ruchi Sindhwani and Ms. Bandana Shukla, Advs. for R-3/GNCTD.

Ms. Anjali Sharma, Adv. for R-4.

CORAM:

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

12.11.2014

1. This petition under Article 226 of the Constitution of India, filed as a Public Interest Litigation (PIL), seeks a direction to the respondents Union of India (UOI) and the Govt. of NCT of Delhi (GNCTD) to allow pet dogs to walk in the parks under their respective jurisdiction and to convert some percentage of the existing public parks within their jurisdiction into designated? dog parks?.

2. We have heard the petitioner appearing in person, an Advocate of this Court, on the aspect of entertaining this petition.

3. It is the plea of the petitioner, (i) that the Department of Horticulture under the Ministry of Urban Development is in-charge of and having jurisdiction over more than 35,000 parks in New Delhi and NCR and the responses from the relevant Departments and the Ministries with respect to 6,297 of these parks confirm that the said parks do not allow access to pet dogs and that there is no dedicated? dog park?; (ii) that this writ petition is filed in the interest of citizens of Delhi who own a pet; (iii) that in fact the rules and regulations of most of the Residents Welfare Associations (RWAs) of colonies and multi-storeyed residential apartments prevent and control the use of common areas therein like parks, pathways, elevators by pets; (iv) that though the respondent No.4 The Animal Welfare Board of India (AWBI) has brought out a Circular dated 20th February, 2014 setting the do?s and don?ts with respect to pets and street dogs and which castigates such restrictions by the RWAs but the same continue to be in force by the respective RWAs; and, (v) that the pet owners are thereby being discriminated and their fundamental rights are being infringed.

4. The petitioner, along with the writ petition has filed copies of the responses aforesaid to his Right to Information (RTI) queries and which responses are from East Delhi Municipal Corporation and South Delhi Municipal Corporation, who have not been impleaded as parties to the petition. We, in another petition being W.P.(C) No.2345/2014 titled Court On Its Own Motion Vs. UOI pending before this Court are also concerned with the issue of public parks, particularly from the aspect of provision therein for children. It is on record in that petition that the management, upkeep and control of such parks in Delhi is either with the municipalities within whose territorial jurisdiction they fall or in the GNCTD. The municipalities in Delhi are governed either by the Delhi Municipal Corporation Act, 1957 or by the New Delhi Municipal Council Act, 1994 and whereunder also the management, upkeep and the control of such public parks vests in the municipalities. We are of the view that the petition, without impleading the said municipalities as parties, is misconceived.

5. We otherwise also do not find the petition as disclosing any basis for the same to be entertained in public interest. The petition, though long-winded, is nothing but a reproduction of the Circular aforesaid of the AWBI or of the views of the pet owners, as may be appearing in the media / press. Else, the petitioner merely alleges violation of rights of the pet owners under Articles 14 and 21 of the Constitution of India. The petitioner during the hearing also instead of making out a right or duty in law, merely gives a discourse on the plight of pet owners. Suggestion is made for reserving parks for two hours in the morning and two hours in the evening for use of pet owners only. When we brought it to the notice of the petitioner that most of the other residents of the city also use the parks in the morning and evening only and enquired, whether not reserving the parks during the said hours for pet owners, would affect the rights of others who are uncomfortable in the presence of pets and further that why such reservation be not made during off peak hours, say of afternoon, no reply was forthcoming. Similarly, when we enquired, as to why the pet owners living in multi-storeyed residential apartments could not walk their pets on the terrace of the said apartments and which terraces are generally huge, again no response was forthcoming. The petitioner himself claims to be keeping several dogs at his residence in an apartment and it cannot be lost sight of that any flat owner keeping a large number of pets can disturb the peace of mind of the neighbours.

6. We are of the view that the issue is not such which can be entertained as a PIL. The rights if any of pet owners, are to be weighed vis.-a-vis. rights of those who oppose allowing of such use of parks by pets even if accompanied with their owners and which cannot be conveniently done before the Court. The AWBI to which reference as aforesaid has been made has been established vide Section 4 of the Prevention of Cruelty to Animals Act, 1960 for the purpose of promotion of animal welfare generally and for the purpose of protecting animals from being subjected to unnecessary pain or suffering. Section 9 of the said Act while prescribing the functions of AWBI prescribes inter alia encouraging the formation of public opinion against the infliction of unnecessary pain or suffering to animals and promotion of animal welfare by means of lectures, books, posters, cinematographic exhibitions and the like and advising the Government on any matter connected with animal welfare as the functions of AWBI. We have thus enquired from the petitioner, whether the petitioner has approached AWBI on the aspect / issue sought to be raised in this PIL and whether not the said Board is the appropriate fora for addressing the issue raised in this petition.

7. The petitioner though not denying the aforesaid, states that the role of AWBI is only advisory and thus no purpose will be served in approaching the Board.

8. Even if that be so, as aforesaid, the issue has to be addressed in a holistic manner and which, in our opinion can be done by AWBI which has been constituted for the said purpose only and not by this Court. The AWBI, as aforesaid, is responsible for working out a solution to the problem flagged by the petitioner, in consultation with and acceptable to all. Any direction as claimed in the petition, if issued by us, would be one sided and may lead to day to day altercations at public places, affecting the peace and harmony of the city. We cannot be unmindful of the skirmishes as inconsequential as on aspect as of car parking, owing to the high stress lives which the citizens are leading, are resulting in scuffles which at times are even fatal. We are therefore of the view that unless a consensus is evolved by the respondent No.4 AWBI by holding consultations with all stakeholders i.e. dog lovers as well as those who are uncomfortable in the presence of dogs at public places and who oppose such a move as well as all municipal agencies and GNCTD which are managing the said public parks, it is not in public interest to issue any such direction.

9. The opposition to allowing pets in public parks is also on the ground of the same dirtying the parks and the walkways therein. When we pointed out the same to the petitioner, he stated that if a pet owner allows the same, it is an offence and action can be taken against him and that should not be a reason for preventing the pets into the parks. We can however take judicial notice of the fact that commission of such act is rarely reported and rarely punished. A site, common in some western countries, of pet owners, while taking a pet for a walk also carrying bag with scoop instrument to collect the dog?s poop, is rare in our country.

10. As far as the contention of the petitioner, of the role of therespondent No.4 AWBI being merely advisory, we are of the view that once the Board has considered the matter in the aforesaid perspective and advised the Government on the same and yet further if the Government then does not accept the said advise, may be a right will accrue to seek a direction to the Government in that respect. However what the petitioner wants us to do, is to perform the function of the Board and which not only we are not willing to do but consider ourselves not equipped to do.

11. The counsel for the respondent No.4 AWBI appearing on advance notice of course wants the petition to be entertained. When we put to her, as to why the Board instead of performing its own functions and duties wants this Court to do the same, she suggests that we direct the Board to do the same.

12. Though in our opinion, there is no need for us to issue any such direction, particularly when the Board also is supporting the petition and is thus seized of the issue and capable to itself act thereon but if at all any push is needed, we are willing to give the same.

13. The counsel for the respondent No.4 AWBI after close of hearing has also handed over a copy of the recent judgment of the Supreme Court in Animal Welfare Board of India Vs. A. Nagaraja JT 2014 (7) SC 1 highlighting paras 53, 54 and 77 thereof in support of the contention that pet dogs should be able to express innate behaviour i.e. be walked and exercised, subject of course to lawful and reasonable restrictions on pet owners for ensuring that the rights of non-pet owners using public parks are not compromised.

14. Though we do not find the judgment aforesaid to be concerned with the issue as arising before us but do not feel the need to enter into the said controversy.

15. We therefore do not agree to entertain this petition and dispose of the same with liberty to the petitioner to approach the respondent No.4 AWBI and on request of the counsel for the said Board also express confidence that the Board when approached, if finds the issue to be worthy of consideration, shall consider the same and make necessary recommendations to the Government after holding consultations with all the stakeholders, as aforesaid and / or encourage the formation of a public consensus on the issue.

CHIEF JUSTICE


RAJIV SAHAI ENDLAW, J.

NOVEMBER 12, 2014

बलात्कार एक घृणित अपराध
विनम्र ' अनुरोध: भविष्य में जारी होने वाली नोटिफिकेशन को अपने ईमेल पर पाने के लिए अपने ईमेल को सब्सक्राइब करें।

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