Chief Secretary to Government of A.P., GAD and others vs P.K. Jain and Others

P. Venkatamama Reddi, J.—This Writ Appeal is preferred by the Government and the City Police Commissioner against the judgment of the learned single Judge in Writ Petition No. 12428 of 1996. It was prayed therein that the action of the third respondent (third appellant herein) in seeking to sell stray animals in public auction on 1-7-1996 shall be declared as illegal and arbitrary and that a consequential direction should be issued not to dispose of the stray animals impounded by the Police. The writ petitioners claim to be the Organisations or individuals interested in the protection and well-being of animals. They have come forward to maintain the animals handed over to them. In other words, they do not want the cattle detained by the Police for causing obstruction to be auctioned when no one came forward to claim them. It is the unrebutted case of the respondent-Organisations that they are maintaining Goshalas/cattle pounds for the animals - cows, buffaloes and bulls. It is also their claim which is not seriously denied that very often, some of the representatives of the Organisations go to the official cattle pounds and feed the animals. It was contended that the auction of animals would ultimately lead to their slaughter and if that is allowed to happen, it would affect the sentiments of large section of Society and it would also thwart the objectives of Prevention of Cruelty to Animals Act and A.P. Prohibition of Cow Slaughter and Animal Preservation Act. The plea of the writ petitioners found its acceptance by the learned single Judge who gave the following directions:

"The entire scheme as to the detention and protection of the stray animals, keeping in view, the request made by the petitioner-Organisations, the first respondent, as indicated above, could frame necessary scheme meeting the requirements in tune with the A.P. Prohibition of the Cow Slaughter and Animals Preservation Act and the Prevention of Cruelty to the Animals Act , I960. The Scheme to come, in my view, would take some time. Till such scheme is formulated, it would be appropriate that the second and third respondents entrust these stray animals to the petitioner-Organisations who are interested in the well being of the cows, buffaloes and bullocks. Before entrusting the custody of these stray animals to the petitioner - Organisations, the respondents shall issue necessary publications in local vernacular newspapers besides English newspapers, in the twin cities of Hyderabad and Secunderabad, giving notice to the owners of the stray animals about the cutoff date for securing their release. On or before the cut-off date if any owner comes forward to take the animal, the respondents on being satisfied about the identity of the animal, shall release the animal to such owner on collecting necessary charges including the maintenance charge during the period of detention. It is made clear, the respondents shall pay 50% from out of the said fee so collected from the owners to the petitioner-Organisations who maintain them in their cattle pounds. As indicated, if the owners do not come forward seeking release within the stipulated period, it would be open to the respondents to impound the animals and entrust the animals to the petitioner-Organisations or any other voluntary organisation which comes forward for maintaining the stray animals which have cattle pounds to maintain them. During the course of hearing, this Court is informed that the respondents are lending the services of the Head Constable, two . Assistants besides providing two Sweepers to the cattle pound which is being maintained. Till permanent alternative measures are taken, the respondents shall continue to lend the assistance of these persons as indicated above. The petitioner-Organisations shall maintain the accounts of income and expenditure in respect of maintenance of the stray animals and subject the accounts to inspection before the authorised Officer as nominated by the second respondent. The authorised Officer so nominated by the second respondent is entitled to inspect the accounts once in six months."

In the concluding part of judgment, it was directed:

"....the respondents shall permit the petitioner-Organisations to retain these animals particularly cows, buffaloes and bullocks in their Goshalas. The respondents shall follow the procedure as indicated above whenever any animals are caught which are found stray on the streets or on the main roads of the city and entrust them to the petitioner-Organisations. It is desired that the respondents shall formulate the scheme as indicated above within a period of six months from the date of receipt of a copy of this order."

Earlier, the learned Judge observed:

"After all, the cattle is the wealth of the Society and if the Government is not able to maintain them, if some voluntary organisations are coming forward and protect the cattle wealth, they shall not be denied of such opportunity. However, such entrustment of stray animals to these organisations shall be on verification about their genuineness and credibility and they are to be made accountable for the maintenance of the animals. It is likely that the voluntary organisations may lend the animals for farming work also to needy persons. It is likely that during the course of maintenance, the stray animals may also conceive and their strength may increase. These organisations could be made responsible for maintaining accounts."

Referring to Section 44 of the Hyderabad City Police Act (hereinafter referred to as "City Police Act"), the learned Judge said:

"... Probably, instead of disposing of the animals by putting them to auction, the respondents particularly second and third respondents, could entrust the stray animals, after the completion of the statutory period of 15 days as provided u/s 44 of the said Act, to the voluntary organisations who come forward to take care of the well- being of the animals."

It is contended by the learned Government Pleader for Home that the directions given by the learned Judge are contrary to the provisions of City Police Act which the Police are bound to comply with and that framing of a Scheme and the implementation thereof on the lines indicated by the learned Judge is fraught with problems and difficulties.

At the time of admission of the Writ Appeal, the Division Bench granted interim order that in view of the provisions of City Police Act, the writ petitioners may be permitted to take custody of the stray cattle on depositing the tentative police fixed by the Commissioner of Police or any other Officer authorised by him and such deposit shall be subject to the final order in the Writ Appeal. We are informed that no such deposit has been made and there was no occasion when the respondents acted in accordance with that direction. It is however, stated by the respondents'' Counsel and it is not denied by the learned Government Pleader that the representatives of the respondent-Organisation regularly visit the cattle pounds at Muslim Jung bridge etc., and feed the animals. It is further submitted by the learned Counsel for the respondents that they have sufficient infrastructure to maintain the stray cattle released to them and an account of such cattle will be maintained. It is also stated that they have no objection to return the cattle to the Police in case the real owner claims the animals. It is then submitted that the payment of cost of animal shall not be insisted upon as it results in unnecessary financial burden on these voluntary Organisations interested in animal welfare.

On principle, we agree with the learned single Judge that the auction of stray cattle should not be resorted to when the voluntary Organisations like the respondents 2 to 4, are willing to come forward to take over such animals, maintain them and account for them. The learned single Judge was actuated by the desire to foster a social purpose and we do not think, for reasons hereinafter mentioned, that law comes in the way of handing over the animals to respondents for their upkeep and maintenance. We are, however, of the view that framing of scheme or regulations by the Government or the Commissioner of Police will not be necessary and workable directions can be given in this writ proceeding itself.

To elaborate what we said earlier, let us have a look into the provisions of the City Police Act which is an archaic enactment going back to 1348-F. Only minimal and peripheral changes have been made in that enactment without bringing it in tune with the needs of changing times and developing city. For a moment, we are not denouncing the provisions contained in the Act wholesale. There are in fact salutary and well thought out provisions which have relevance in the present day context. But the Act does need a change and a new orientation to meet the challenges and aspirations of the day. We are informed that efforts are on in this direction and we may, therefore, close these off-the-cuff remarks with a hopeful note.

Returning from the digression, we would like to refer to Sections 42 to 44 of the City Police Act. Section 42 empowers the Commissioner of City Police to set up cattle pounds at specified places and to appoint pound keeper who will discharge his duties subject to the orders of the Commissioner. Section 43 provides for impounding of cattle. It casts a duty on every Police Officer and even authorises a private person "to seize and impound" in any Government pound, any cattle found straying in any street or trespassing upon any private or Government property within the Hyderabad City Police limits. Section 44 bears the heading "Delivery of cattle". The 1st sub-section says that if the owner of the impounded cattle or his agent appears and claims delivery of such cattle, the pound keeper shall deliver such cattle to him on payment of pound fee and the actual expenses in respect of such cattle fixed under sub-section (4). Sub-section (2) provides for sale of unclaimed animals which lays down as follows:

"44 (2) If, within ten days from the date of impounding any animal, no person who is the owner of such animal appears and pays the fees and expenses specified in subsection (4), such cattle shall be forthwith sold by auction, and the surplus remaining after deducting the fees and expenses aforesaid from the proceeds of the sale, shall be paid to any person, who, within fifteen days from the date of sale, appears before the Officer appointed by the Commissioner of City Police, Hyderabad for this purposes and proves to his satisfaction that he is the owner of the said animal. In other cases such proceeds of sale shall be appropriated by the Government."

Sub-section (4) is in two limbs. Clause (a) thereof provides for levy of fine at the rates specified in the table thereto. Clause (b) says that "pound fee and expenses chargeable shall be at such rates for each day including any part of a day as may be fixed by the Commissioner of City Police."

Going by the plain terms of subsection (2) of Section 44, the Government Pleader is right in saying that it casts an obligation to sell away the impounded cattle by auction, if no one turns up within ten days to claim them. The sheet anchor of appellants'' case thus rests on Section 44(2). It is submitted by the Government Pleader that the auction notice issued by the concerned Police Officer on 1-7-1996 is in perfect conformity with the above provision which has not been challenged by the writ petitioners. As already stated, it is the contention of the learned Government Pleader that the directions given by the learned single Judge are in the teeth of this provision and virtually nullifies the operation thereof. The argument, no doubt, has the merit of plausibility, but on a deeper scrutiny, in the light of other enactments in force, we cannot uphold the contention of the learned Government Pleader. The Court cannot be oblivious of other enactments aimed at promotion of animal welfare and prevention of cruel and obnoxious practices in relation to animals. One such enactment which needs to be noticed and applied is A.P. Prohibition of Cow Slaughter and Animal Preservation Act, 1977. ''Animal'' in the said Act is defined as bull, bullock, buffaloe, male or female or calf. As per Section 3(iii), ''cow'' includes a heifer of a calf, whether male or female of a cow; As the preamble says, this is an Act to provide for prohibition of slaughter of cows, calves of cows and calves of she-buffalo s and for preservation of certain animals suitable for milch, breeding, draught or agricultural purposes in the State. Section 5 lays down:

"Prohibition of slaughter or cow or calf of she-buffaloe :--Notwithstanding anything in any other law for the time being in force or any custom, or usage to the contrary, no person shall slaughterer cause to be slaughtered, or offer or cause to be offered for slaughter or otherwise intentionally kill or offer or cause to be offered for killing any cow or calf, whether male or female, of a she buffaloe."

Thus, Section 5 which starts with a non-obstante clause prohibits the slaughter of cows including a calf of a cow and also prohibits the slaughter of calf of she-buffaloe. As regards other animals, Section 6 prohibits the slaughter without a Certificate in writing from competent authority that the animal is fit for slaughter. Such certificate shall not be granted if animal is or is likely to be useful for the purpose of breeding, draught or any other agricultural operations or giving milk or bearing off-spring. Section 8 prohibits slaughter of animals in respect of which Certificate has been granted u/s 6 except in specified places. Section 17 is another important provision. It empowers the Government to establish or direct any local authority or registered Society or any association or body of persons to establish Institutions at such places as may be deemed necessary for taking care of cows or animals sent thereto.

Establishment of Goshalas and cattle pounds by the respondent Organisations may not be in terms of the direction issued or permission granted by the Government u/s 17 of the Cow Slaughter (P) Act. But they are serving the same purposes, as are contemplated by Section 17 and they are not alien to the provisions of the Cow Slaughter (P) Act. It is nobody''s case that these Organisations are bogus or non-functional. We are informed that they are being run by Trusts which got themselves registered under A.P. (T.A.) Societies Registration Act.

It is interesting to note that as early as in 1950. The Hyderabad (Slaughter of Animals Act), 1950 was enacted by the Hyderabad State. That Act contains a provision more or less similar to Section 8 of 1977 A.P. Act. The Act regulates and restricts the slaughter of animals for human consumption. After advent of Andhra Pradesh State, the said Act continued to be in operation in Telangana Area until it was repealed by the 1977 Act which we have now referred. Jo.

It is to be noticed that sub-section (2) of Section 44 of City Police Act is not intended to serve as a revenue raising measure. The obvious idea is that it is not possible and practicable to keep the stray cattle in cattle pounds forever and therefore, if within a reasonable time, no one comes forward to claim the cattle together with an offer to pay the fine and other charges under sub-section (4), disposal of cattle would be the only expedient course. At the time when that provision was made, the framers of the Act would not have visualised that voluntary and charitable Organisations will come forward to take delivery of such cattle and maintain them. The degree of awareness and consciousness that arose in post-independence days for the protection of animal life and preservation of wild life was not felt so much in the by-gone days. The laws which we have now for preventing cow slaughter and promotion of animal preservation were not then in existence. That was the background in which subsection (2) of Section 44 was enacted. But, we have now several laws dealing with animal welfare. However, the stark reality is that implementation of laws intended for preservation and protection of animals, is by no means effective. The provisions just remain on the statute book creating a yawning gap in their implementation. Whereas that is the state of affairs as far as post-independence laws dealing with animal welfare are concerned, it is a blessing in disguise that sub-section (2) of Section 44 of the City Police Act has not been known for its implementation within the living memory of City Police. The learned Government Pleader has informed us, after getting instructions from the Police authorities that except in the year 1996, when there was a move to auction, no auctions of stray animals were conducted in the recent past and the cattle was being handed over at times to the voluntary Organisations without collecting any amount, or the cattle was being let off. This State of affairs went on till 1996 when the idea dawned in the mind of a Police Officer to implement the provision of law in its letter and spirit. That is why the auction was notified and the same was promptly challenged by the respondents herein.

We are of the view that subsection (2) of Section 44 of the City Police Act should be read in such a way as to harmonise with the provisions of A.P. Cow Slaughter (Prohibition) Act and to make it complementary to the working of the latter Act. Section 44(2) of the City Police Act cannot be so construed as to frustrate the underlying policy and objective of another Act made by the Legislature. The Court should not allow a situation in which the allied provisions of different statutes should work and operate at a tangent. Section 44(2) should be interpreted in a manner that promotes, but not to frustrate the objectives of the later enactment viz., A.P. Cow Slaughter Prohibition and Animal Preservation Act. Viewed in that perspective the sale, of impounded cattle in auction need not be construed as a mandatory or compulsive requirement of law. The word ''shall'' occurring in Section 44(2) ought to be understood, in our view, as permissive or enabling provision. It should be read and understood as equivalent to the expression ''may''.

An argument was advanced by the learned Government Pleader some what faintly that the auction of cattle does not necessarily result in slaughter of animals and one cannot predicate as to how the buyer would deal with them. This argument which rests on doctrinaire approach need not be countenanced. It is common knowledge and experience that stray animals impounded in the cattle pounds are capable of fetching only nominal price if they are sold in auction and most of the buyers would be those interested in slaughtering. This phenomenon is more common in cities. At any rate, there is a strong possibility of the animal sold in auction being killed by the buyers for the purposes of making and marketing beef. In this state of things, if the Court allows the provision contained in Section 44(2) to have its full sway and operation, there is every likelihood of the provisions of A.P. Cow Slaughter Prohibition and Animal Preservation Act being defeated. Such a situation, in our view, should not occur. Therefore, it is proper and reasonable to take the view that sale by auction should be a last resort and if the survival, maintenance and preservation of the impounded cattle could be better ensured by handing them over to benefactors of cattle, that should be ensured. In case of failure to do so, this Court can give appropriate directions under Article 226 of the Constitution.

In the light of above discussion and having regard to the fact that some of the directions given by the learned single Judge may involve unnecessary expenditure and exercise, we are inclined to issue a writ with the following directions which, in our view, would substantially accomplish the objective which the learned Judge had in view:

The Commissioner of Police or the Officer nominated by him shall allow respondents 2 to 4 or any other registered Societies to take custody of the cattle detained in the cattle pounds etc., if any of them comes forward to take delivery, provided he is satisfied that respondents 2 to 4 or any other voluntary Organisation has not necessary infrastructure for the upkeep and maintenance of the cattle. This should be done if any one of these voluntary organisations/societies approach the Police Officer incharge of the cattle pound within 15 days from its detention, but not before the expiry of 10 days. The handing over of animals to voluntary organisations will be subject to the claims if any of real owner thereof who, before release, is expected to pay the amounts stipulated in Section 44(4) of the City Police Act. If the Police or other Department incharge of the maintenance of cattle pounds had incurred any expenditure for fodder etc., the voluntary Organisations can be called upon to reimburse the amounts. As it may not be practicable to arrive at the exact amount spent on each animal, it is open to the Commissioner to fix a reasonable amount to be charged per day for the maintenance of animals in the cattle pound which should be more or less related to the actuals. If there are requests from more than one Organisation, it is open to the Commissioner to evolve rules preference. The Organisation/Society which takes" delivery of the animal should preserve its identity by making necessary entries in the records and report to the Police Officer from whom delivery is taken about the death of animal. The State Government shall, on a proposal sent up by the Commissioner of Police, sanction additional funds to meet the expenses for the proper maintenance and upkeep of the cattle pounds without avoidable delay. The Commissioner of Police shall take consequential steps that are required to be taken on administrative side pursuant to this judgment within three months from the date of receipt of a copy of this judgment. It is also desirable that the State Government frames comprehensive Rules under the 1977 Act as the present set of Rules are in a truncated form.

The Writ Appeal is, accordingly, disposed of. No costs.