-: 1 :- W.P.No.37197/2011 BETWEEN:

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1 -: 1 :- R IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 07 TH DAY OF DECEMBER, 2012 PRESENT THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA W.P.Nos.37197/2011 (LB-RES-PIL) C/W 7641/2007 (LB-RES-PIL), 7642/2007 (LB-RES-PIL), 7644/2007 (LB-RES-PIL), 6229/2007 (GM-RES-PIL), 4920/2007 (LB-BMP-PIL), 427/2007 (LB-BMP-PIL), 4034/2007 (GM-RES-PIL). W.P.No.37197/2011 BETWEEN: 1.MASTER JISHNU.G., AGED ABOUT 5 YEARS, A MINOR REP. HEREIN BY HIS FATHER AND NATURAL GUARDIAN, R.GURURAJA, # 276, S-M14-B, 18 TH BLOCK, 5 TH PHASE, YELAHANKA NEW TOWN, BANGALORE VIDYA.P, W/O R.GURURAJA, AGED ABOUT 35 YEARS, # 276, S-M14-B, 18 TH BLOCK, 5 TH PHASE, YELAHANKA NEW TOWN, BANGALORE PETITIONERS (BY SRI: ARUN SRIKUMAR, ADV. FOR SRI. NAYAK & SRI.SRIKUMAR, ADVS.)

2 -: 2 :- AND: 1.BRUHAT BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BANGALORE REP. BY ITS COMMISSIONER. 2.STATE OF KARNATAKA, REP. BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BANGALORE KARUNA ANIMAL WELFARE ASSOCIATION OF KARNATAKA, KASTURBA ROAD, BANGALORE ANIMAL RELIEF FUND (ARF) COPRORATE OFFICE, COMFORT MANOR, 1 ST FLOOR, NO.10/4-2, KUMARAKRUPA ROAD, BANGALORE KRUPA LOVING ANIMALS, NO.16, 7 TH MAIN ROAD, STAGE I, KENGERI, SATELLITE TOWN, BANGALORE, KARNATAKA. 6. COMPASSION UNLIMITED PLUS ACTION (CUPA), BBMP-CUPA ANIMAL BIRTH CONTROL CENTRE, MUNICIPAL DOG POUND, KORAMANGALA, BANGALORE (SEPARATE AMENDED CAUSE TITLE AS PER ORDER DATED 2/1/2012 FILED ON 2/4/2012)... RESPONDENTS (BY SRI: K.V.NARASIMHAN, ADV. FOR R1, AND SRI.K.N.PUTTEGOWDA, ADV. FOR R1, SRI.KUMAR RAM & SRI.C.K.NANDAKUMAR, ADVS. FOR R6, SMT.SHWETA

3 -: 3 :- KRISHNAPPA, ADV. FOR M/S. SHETTY & HEGDE ASSTS. FOR R4, SRI.G.KRISHNA MURTHY, ADV. FOR R3, SRI.R.DEVDAS, AGA FOR R2, MISS.CHAMPOOKAVYA.S., ADV. FOR M/S. SASTRY & CO., FOR R5) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R1 TO PAY COMPENSATION TO THE PETITIONERS IN A SUM OF RS.5,00,000 WITH LIBERTY TO SEEK ENHANCED COMPENSATION IN THE EVENT OF ANY FUTURE HEALTH RELATED COMPLICATION TO THE P1 ON ACCOUNT OF THIS ATTACK DIRECT THE R1 TO ENSURE THAT THE CITY'S STREETS ARE CLEARED OF GARBAGE AND WASTE IN LOCATIONS WHERE STREET DOGS ARE PRONE TO GATHER. W.P.No.7641/2007 BETWEEN: 1.MS. TEJASWINI.T., D/O. THYAGARAJ, AGED ABOUT 26 YEARS, R/AT NO.401, NORTH BLOCK, SOUTH SPARTA APTS., 15 TH MAIN, 17 TH CROSS, J.P.NAGAR 5 TH PHASE, BANGALORE MR. SANTHOSH KUMAR.P., S/O. PRAKASH, AGED ABOUT 27 YEARS, R/AT 257/A, FIRST FLOOR, 4 TH CROSS, 11 TH MAIN ROAD, KORAMANGALA 4 TH BLOCK, BANGALORE.

4 -: 4 :- 3.SRI. NAVEENDRAN.W., S/O. WILLIAM, AGED ABOUT 26 YEARS, R/AT 257/A, FIRST FLOOR, 4 TH CROSS, 11 TH MAIN ROAD, KORAMANGALA 4 TH BLOCK, BANGALORE. 4.SRI.VENUGOPAL REDDY.G., S/O. GOVINDA REDDY, AGED ABOUT 29 YEARS, R/AT 257/A, FIRST FLOOR, 4 TH CROSS, 11 TH MAIN ROAD, KORAMANGALA 4 TH BLOCK, BANGALORE. 5.MS. AMBIKA.R., D/O. RAJESH, AGED ABOUT 28 YEARS, R/AT 257/A, FIRST FLOOR, 4 TH CROSS, 11 TH MAIN ROAD, KORAMANGALA 4 TH BLOCK, BANGALORE.... PETITIONERS (BY MISS: CHAMPOOKAVYA.S., ADV. FOR M/S. SASTRY & CO., ADV.) AND: 1.STATE OF KARNATAKA, REP. BY ITS PRINCIPAL SECRETARY, VIDHANA SOUDHA, BANGALORE. 2.BANGALORE MAHANAGARA PALIKE, BANGALORE CITY CORPORATION, REP. BY THE COMMISSIONER.... RESPONDENTS

5 -: 5 :- (BY SRI: R.DEVDAS, AGA FOR R1, SRI.SUBRAMANYA.R., ADV. FOR M/S. ASHOK HARANAHALLI ASSTS. FOR R2) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R1 AND R2 TO PROPERLY IMPLEMENT ANIMAL BIRTH CONTROL (DOGS) RULES, 2001 AND ANIMALS BIRTH CONTROL PROGRAM. W.P.No.7642/2007 BETWEEN: 1.SNEHA.G.S.MAIYA, NO.426/A, 1 ST 'C' CROSS, 7 TH BLOCK, KORAMANGALA, BANGALORE SHASHI KUMAR.M., S/O.J.MARI RANGAPPA, 1534, 6 TH 'C' MAIN, 1 ST CROSS, RPC LAYOUT, VIJAYANAGAR, BANGALORE SMITHA NANAIAH, NO.23[106], NEAR UPPER HOSTEL ROAD, MADIKERI, COORG RAJAMANI.B., D/O. B.MALLESHAPPA, AGED ABOUT 55 YEARS, 1/E, MAGADI CHORD ROAD, VIJAYANAGAR, BANGALORE PADMA MAIYA, AGED ABOUT 52 YEARS, NO.5/2, INNOVA RESIDENCY,

6 -: 6 :- HARIRAM, AILDAS BEYOND, VIJAYANAGAR, BANGALORE G.SADASHIVA MAIYA, S/O. RAMACHANDRA MAIYA, AGED ABOUT 62 YEARS, NO.5/2, INNOVA RESIDENCY, HARIRAM AILDAS LAYOUT, VIJAYANAGAR, BANGALORE PETITIONERS (BY MISS: CHAMPOOKAVYA.S., ADV. FOR M/S. SASTRY & CO., ADV.) AND: 1.STATE OF KARNATAKA, REP. BY ITS PRINCIPAL SECRETARY, VIDHANA SOUDHA, BANGALORE. 2.BANGALORE MAHANAGARA PALIKE, BANGALORE CITY CORPORATION, REP. BY THE COMMISSIONER... RESPONDENTS (BY SRI: SUBRAMANYA.R., ADV. FOR M/S. ASHOK HARANAHALLI ASSTS. FOR R2, SRI.N.DEVDAS, AGA FOR R1) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R1 AND 2 PROPERLY IMPLEMENT ANIMAL BIRTH CONTROL[DOGS] RULES, 2001 AND ANIMALS BIRTH CONTROL PROGRAM.

7 -: 7 :- W.P.No.7644/2007 BETWEEN: 1.SRI.AJIT PAI, S/O PAI, AGED ABOUT 25 YEARS, R/AT NO.601, ACROPOLIS, LIGHTHOUSE HILL ROAD, MANGALORE SRI.KISHORE.N.NAIK, S/O.N.NAIK, AGED ABOUT 27 YEARS, R/AT NO.726, 21 ST CROSS, 8 TH MAIN, SECTOR 7, HSR LAYOUT, BANGALORE SRI. SRIRAM.S.MANI, S/O. S.MANI, AGED ABOUT 23 YEARS, R/AT B 302, GIRI APARTMENTS, J.P.NAGAR II PHASE, BANGALORE SRI.SRIDHAR.B, S/O. BASAVRAJ, AGED ABOUT 28 YEARS, R/AT NO. 729, 21 ST CROSS, 8 TH MAIN SECTOR 7, HSR LAYOUT, BANGALORE SRI. DIPTI NAIR, S/O. NAIR, AGED ABOUT 24 YEARS, R/AT 62, CUNNIGHAM APARTMENTS, 5, EDWARD ROAD, BANGALORE-52.

8 -: 8 :- 6.SRI. HARISH.K.S., S/O. SAINATH, AGED ABOUT 22 YEARS, R/AT NO.302B, KASTURIDHAMA APARTMENTS, 9 TH CROSS, 8 TH MAIN, MALLESWARAM BANGALORE PETITIONERS (BY MISS: CHAMPOOKAVYA.S., ADV. FOR M/S. SHASTRY & CO., ADV.) AND: 1.STATE OF KARNATAKA, REP. BY ITS PRINCIPAL SECRETARY, VIDHANA SOUDHA, BANGALORE. 2.BANGALORE MAHANAGARA PALIKE, BANGALORE CITY CORPORATION, REP. BY THE COMMISSIONER.... RESPONDENTS (BY SRI: SUBRAMANYA.R., ADV. FOR M/S. ASHOK HARANAHALLI ASSTS. FOR R2, SRI.N.DEVDAS, AGA FOR R1) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R1, AND R2, TO PROPERLY IMPLEMENT ANIMAL BIRTH CONTROL (DOGS) RULES, 2001 AND ANIMALS BIRTH CONTROL PROGRAM. W.P.No.6229/2007 BETWEEN: ANANDACHAYA TRUST, ANIMAL WELFARE ORGANIZATION (TRUST REG), NO-TF7, GREENERY APARTMENTS,

9 -: 9 :- 16 TH PLAIN STREET, BANGALORE-01, REP. BY ITS AUTHOR AND FOUNDER SMT. JAYABATTACHARYA.... PETITIONER (BY SRI: M.T.NANAIAH & SRI.VISHNU HEGDE, ADVS.) AND: 1.THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, DR. AMBEDKAR ROAD, BANGALORE THE COMMISSIONER OF BANGALORE MAHANAGARA PALIKE, HUDSON CIRCLE, BANGALORE. 3.THE MONITORIAL COMMITTEE, BANGALORE MAHANAGARA PALIKE, HUDSON CIRCLE, BANGALORE REPRESENTED BY THE COMMISSIONER. 4.THE HEALTH DEPARTMENT, BANGALORE MAHANAGAR PALIKE, HUDSON CIRCLE, BANGALORE.... RESPONDENTS (BY SRI: R.DEVDAS, AGA FOR R1, SRI.SUBRAMANYA.R., ADV. FOR M/S. ASHOK HARANAHALLI ASSTS. FOR R2 TO R4) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATION DT I.E, ANN-C AND DIRECT

10 -: 10 :- THE RESPONDENTS TO PROVIDE NECESSARY SUITABLE ACCOMMODATION FOR THE STREET DOGS BY PROVIDING FOOD TILL THEIR LIFE TIME AND NOT TO KILL THE STREET DOGS BRUTALLY CAUSING HARM TO THE MORALITY AND SENTIMENT OF THE PEOPLE AND GRANT SUCH OTHER RELIEF/S. W.P.No.4920/2007 BETWEEN: 1.MR. GEORGE MATHEW, S/O P.G.MATHAI, AGED 62 YEARS, NO.201, SURAJ APARTMENTS, 8 D COSTA SQUARE, 3 RD CROSS, ST. THOMAS TOWN P.O., BANGALORE MS REBITA REBECCA GEORGE, D/O GEORGE MATHEW, AGED 26 YEARS, NO 201, SURAJ APARTMENTS, 8 D COSTA SQUARE, 3 RD CROSS, ST. THOMAS TOWN P.O., BANGALORE MR. G.DEVARAJ, S/O S.GANGADHARAN, AGED 64 YEARS, NO. 201, SURAJ APARTMENTS, 8 D COSTA SQUARE, 3 RD CROSS, ST. THOMAS TOWN P.O., BANGALORE MS. CHITRA IYER, W/O VINOD SIVARAMAN, AGED 40 YEARS, NO.5004, ETERNITY,

11 -: 11 :- PRESTIGE MONTE CARLO, DODDABALLAPURA ROAD, YELAHANKA, BANGALORE MR VINOD SIVARAMAN, S/O P.N.SIVARAMAN, AGED 44 YEARS, NO.5004, ETERNITY, PRESTIGE MONTE CARLO, DODDABALLAPURA ROAD, YELAHANKA, BANGALORE MS. BINDU.K, D/O K.G.VENKATESH MURTHY, AGED 24 YEARS, NO.54, I PHASE, I STAGE, 3 RD A CROSS, KARNATAKA LAYOUT, KURUBARAHALLI, BANGALORE MS. NRUPA.R.NATHVANI, W/O GOPI SHANKAR, AGED 34 YEARS, NO.438, 9 TH A MAIN ROAD, KALYAN NAGAR I BLOCK, BANGALORE MS. NIRUPAMA SHARMA, D/O G.R.SHARMA, AGED 43 YEARS, NO.20, NANJAPPA ROAD, SHANTHINAGAR, BANGALORE MR. K.GAUTHAM, S/O GOVINDABHAT.K, AGED 22 YEARS, NO.32, I B MAIN, MARUTHI ROAD, SARAKKI, J.P.NAGAR I PHASE, BANGALORE

12 -: 12 :- 10.MS. MEERA TIWARI, D/O S.T.SUBRAMANYAM, AGED 38 YEARS, NO.308, 7 TH B MAIN ROAD, 4 TH BLOCK, KORAMANGALA, BANGALORE MS. PRAMILA CHOWDAIAH, D/O. B.C. CHOWDAIAH, AGED 46 YEARS, NO.15, NEW HIGH SCHOOL ROAD, VISHWESHWARAPURAM, BANGALORE PETITIONERS (BY SRI: K.V.NARASIMHAN, & SRI.SATISH, ADVS.) AND: 1.UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF ENVIRONMENT AND FOREST, NEW DELHI. (AMENDED ON 12/4/07) 2.STATE OF KARNATAKA, REP. BY ITS SECRETARY, DEPT. OF ANIMAL WELFARE, M.S.BUILDING, BANGALORE. 3.THE BANGALORE MAHANAGARA PALIKE, HUDSON CIRCLE, BANGALORE, REP. BY ITS COMMISSIONER.... RESPONDENTS (BY SRI: S.KALYAN BASAVARAJ, CGC FOR R1, SRI.N.DEVDAS, AGA FOR R2, SRI.SUBRAMANYA.R., ADV. FOR M/S. ASHOK HARANAHALLI ASSTS. FOR R3) *****

13 -: 13 :- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THEM TO STOP KILLING OF DOGS IN AND AROUND THE BANGALORE CITY AND MANAGE, PRESERVE, PROTECT AND SAGEGUARD THE DOGS CAUGHT AS PER THE RULES LAID DOWN IN ANIMAL BIRTH CONTROL (DOGS) RULES W.P.No.427/2007 BETWEEN: B.KRISHNA BHAT, S/O. LATE B.NARAYANA BHAT, AGED ABOUT 75 YEARS, NO.399, J.P. ROAD, GIRINAGAR, BANGALORE PETITIONER (BY SRI: PUTTIGE.R.RAMESH & SMT.LAKSHMI HOLLA, ADVS.) AND: 1.UNION OF INDIA, BY ITS SECRETARY, MINISTRY OF ENVIRONMENT & FOREST, NEW DELHI STATE OF KARNATAKA, BY ITS SECRETARY, URBAN DEVELOPMENT, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE BANGALORE MAHANAGARA PALIKE, BY ITS COMMISSIONER,

14 -: 14 :- NR SQUARE, BANGALORE ANIMAL WELFARE BOARD OF INDIA, BY ITS DIRECTOR, 11, VENKATARAMANA STREET, SREENIVASA AVENUE, R.A.PURAM, CHENNAI AKHILA KARNATAKA PRANI DAYA SANGHA, NO.27, 9 TH MAIN, V BLOCK, JAYANAGAR, BANGALORE COMPASSION UNLIMITED PLUS ACTION (CUPA), A REGD. PUBLIC CHARITABLE TRUST, REP. BY ITS SECRETARY, SMT. SANOBER Z.BARUCHA, NO.257, 1 ST CROSS, HAL 2 ND STAGE, INDRANAGAR, BANGALORE ANIMAL RIGHTS FUND (TRUST), NO.6, I MAIN, I CROSS, SRIPURAM, SHESHADRIPURAM, BANGALORE, REP. BY ITS MANAGING TRUSTEE SRI.DILIP BAJNA.... RESPONDENTS (BY SRI: SUBRAMANYA.R., ADV. FOR SRI. ASHOK HARANAHALLI ASSTS. FOR R3, SRI.R.DEVDAS, AGA FOR R2, SRI.V.K.NARAYANA SWAMY, CGC AND SRI.S.KALYAN BASAVARAJ, CGC FOR R1, SRI.K.G.RAGHAVAN, SR.COUNSEL FOR M/S. DUA ASSTS. FOR R6, MS.CHAMPOOKAVYA.S., ADV. FOR M/S. SASTRY & CO., FOR R7, SRI.ARUN.K.S., ADV. FOR R5, SRI.S.R.SUNDARAM, ADV. FOR R4) *****

15 -: 15 :- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE PROVISIONS OF RULE 7 OF THE ANIMAL BIRTH COTROL (DOGS) RULES, 2001 AS AT ANN- B AS UNCONSTITUTIONA. W.P.No.4034/2007 BETWEEN: KARNATAKA STATE LEGAL SERVICES AUTHORITY, TECHNICAL EDUCATION BUILDING, PALACE ROAD, BANGALORE REP. BY ITS MEMBER SECRETARY. (BY SRI: J.PRASHANTH, ADV.)... PETITIONER AND: 1.STATE OF KARNATAKA, BY ITS SECRETARY, URBAN DEVELOPMENT, VIKAS SOUDHA, DR.AMBEDKAR VEEDHI, BANGALORE BRUHAT BANGALORE MAHANAGAR PALIKE, BY ITS COMMISSIONER, N.R.SQUARE, BANGALORE ANIMAL WELFARE BOARD OF INDIA, BY ITS DIRECTOR, 11,VENKATRAMA STREET, SRINIVASA AVENUE, R.A.PURAM, CHENNAI

16 -: 16 :- 4.AKHILLA KARNATAKA PRANI DAYA SANGHA, NO.27, 9 TH MAIN, V BLOCK, JAYANAGAR, BANGALORE COMPASSIONATE UNLIMITED PLUS ACTION (CUPA), REGD. PUBLIC CHARITABLE TRUST, REP. BY ITS SECRETARY, NO.257, IST CROSS, HAL II STAGE, INDIRANAGAR, BANGALORE RESPONDENTS (BY SRI: N.DEVDAS, AGA FOR R1, SRI.SUBRAMANYA.R, ADV. FOR M/S. ASHOK HARANAHALLI ASSTS. FOR R2, SRI.S.R.SUNDARAM, ADV. FOR R3, SRI.K.S.ARUN, ADV. FOR R4, SRI.K.G.RAGHAVAN, SR.COUNSEL FOR M/S. DUA ASSTS. FOR R5) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF MANDAMUS TO DIRECT THE RESPONDENTS TO PERFORM THEIR OBLIGATORY FUNCTIONS AND PAY ADEQUATE COMPENSATION TO THE VICTIMS AND THEIR FAMILIES. THESE PETITIONS BEING RESERVED AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, NAGARATHNA J., MADE THE FOLLOWING:

17 -: 17 :- O R D E R NAGARATHNA J.: It is said that a Dog is a man s best friend. But in these writ petitions we are confronted with the menace of stray dogs in the metropolis of Bangalore. 2. W.P.No.37197/2011 is filed by a minor boy, Jishnu, seeking compensation, being a victim of a dog bite. There are other reliefs sought against the Bruhat Bangalore Mahanagara Palike ( B.B.M.P., for short) with regard to the stray dogs. 3. W.P.Nos.7641/2007, 7642/2007, 7644/2007 are public interest litigations, seeking implementation of the Animal Birth Control (Dogs) Rules, 2001 and Animal Birth Control Programme ( ABC Rules, 2001 and ABC Programme, for short). 4. W.P.No.6229/2007 is filed by an Animal Welfare Trust, seeking consideration of their representation dated 28/03/2007 by the respondents and

18 -: 18 :- also seeking directions for providing suitable accommodation to street dogs and to prevent their killing as they are being killed brutally. 5. W.P.No.4920/2007 is filed by a group of citizens, seeking prevention of the killing of dogs and to safeguard dogs, as per the ABC Rules, A concomitant prayer is also sought with regard to efficient disposal of garbage in and around Bangalore City, so that the management of solid waste would to some extent ameliorate the problem of street dogs. 6. W.P.No.427/2007 has assailed the validity of the Rule 7 of ABC Rules, A direction is also sought to the State Government as well as to B.B.M.P., to implement the provision of the Municipal Solid Waste (Management and Handling) Rules, 2000 (hereinafter, referred to as the MSW Rules, 2000). 7. W.P.No.4034/2007 is a suo motu proceeding initiated at the behest of the Karnataka Legal Services

19 -: 19 :- Authority, bringing to the notice of this Court the fact that a minor boy aged about four years was mauled to death by stray dogs on 01/03/2007. A request is made for directing the B.B.M.P. to perform their obligatory functions having regard to Section 58 of the Karnataka Municipal Corporations Act, 1976 ( KMC Act, 1976, for the sake of brevity) and to provide security to the citizens by curbing the menace of stray dogs in public places. 8. Thus, in all these writ petitions, except in W.P.No.6229/2007, the contentions are directed towards the dog menace. In W.P.No.6229/2007 the prayer is for the protection of stray dogs. 9. We have heard the learned counsel for the petitioners and learned senior counsel along with the other counsel for the respondents on several dates. 10. While, the learned counsel for the petitioners have highlighted various problems arising out of the increase in street or stray dogs in Bangalore Metropolis

20 -: 20 :- and one of the counsel has also gone to the extent of seeking culling of all street dogs, the others have sought for the eradication of the menace of stray dogs within the frame work of law. 11. Counsel for the respondents representing the Animal Welfare Board and the other Non-Governmental Organizations (NGOs) have stated that the provisions of law if enforced effectively would curb the menace of stray dogs in the city of Bangalore by referring to the relevant provisions of the Prevention of Cruelty to Animals Act, 1960 (hereinafter, referred to as the 1960 Act, for short) as well as the ABC Rules, At this stage itself, it would be necessary to note that Rule 7 of the ABC Rules, 2001 has also been assailed in certain writ petitions. The ABC Rules, 2001 have been framed by the Central Government pursuant to Section 38 of the 1960 Act. The object of the said Act is to prevent infliction of unnecessary pain on or suffering of animals and in that regard, to prevent cruelty to animals. Infact,

21 -: 21 :- the Central Government had constituted a Committee to rectify and remedy various provisions of the Cruelty to Animals Act, 1880 and replace it by a more comprehensive Act. Thereafter, the 1960 Act was enacted and has received the assent of the President on 28/06/1990. Certain amendments have been made in the year 1982 to the said Act. The relevant definitions read as under:- 2. Definitions: In this Act, unless the context otherwise requires,- * * * * Section 2(c) "captive animal" means any animal (not being a domestic animal) which is in captivity or confinement, whether permanent or temporary, or which is subjected to any appliance of contrivance for the purpose of hindering or preventing its escape from captivity or confinement or which is pinioned or which is or appears to be maimed; (d) "domestic animal" means any animal which is tamed or which has been or is being sufficiently tamed to serve some purpose for the

22 -: 22 :- use of man or which, although it neither has been nor is intended to be so tamed, is or has become in fact wholly or partly tamed-, (e) "local authority" means a municipal committee, district board or other authority for the time being invested by law with the control and administration of any matters within a specified local area; (f) "owner", used with reference to an animal, includes not only the owner but also any other person for the time being in possession or custody of the animal, whether with or without the consent of the owner; * * * * (i) "street" includes any way, road, lane, square, court, alley, passage or open space, whether a thoroughfare or not, to which the public have access. 13. Section 4 reads thus:- 4. Establishment of [Animal Welfare Board of India]: (1) For the promotion of animal

23 -: 23 :- welfare generally and for the purpose of protecting animals from being subjected to unnecessary pain or suffering, in particular, there shall be established by the Central Government, as soon as may be after the commencement of this Act, a Board to be called the [Animal Welfare Board of India]. (2) The Board, shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and may by its name sue and be sued. Section 4 provides for the establishment of the Animal Welfare Board in India, for the promotion of animal welfare and for the purpose of protecting animals from being subjected to unnecessary pain or suffering. The functions of the Board inter alia includes the constant study of the law or the law in force in India for the prevention of cruelty to animals and advise the Government on the amendments to be undertaken and to take all steps to ensure that unwanted animals are

24 -: 24 :- destroyed by local authorities, whenever it is necessary to do so. To encourage the establishment of pinjrapoles, rescue homes, animal shelters, sanctuaries etc., for animals and birds when they have become old and useless or when they need protection. To assist the Animal Welfare Organizations and to impart education in relation to the humane treatment of animals and to encourage the formation of public opinion against the infliction of unnecessary pain or suffering to animals and for the promotion of animal welfare by means of lectures, books, posters, cinematographic exhibitions and the like. 14. Section 11 reads thus:- Section 11:- Treating animals cruelly : (1) If any person - (a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes, or being the owner permits, any animal to be so treated; or

25 -: 25 :- (b) [employs in any work or labour or for any purpose any animal which, by reason of its age or any disease] infirmity; wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be so employed; or (c) wilfully and unreasonably administers any injurious drug or injurious substance to [any animal] or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by [any animal]; or (d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or (e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or

26 -: 26 :- (f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or (g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or (h) being the owner of [any animal], fails to provide such animal with sufficient food, drink or shelter; or (i) without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst; or (j) wilfully permits any animal, of which he is the owner, to go at large in any street, while the animal is affected with contagious or infectious disease or, without reasonable excuse permits any diseased or disabled animal, of which he is the owner, to die in any street; or (k) offers for sale or, without reasonable cause, has in his possession any animal which is

27 -: 27 :- suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment; or [(l) mutilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections, in the heart or in any other unnecessarily cruel manner; or;] [(m) solely with a view to providing entertainment- (i) confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object or prey for any other animal; or (ii) incites any animal to fight or bait any other animal; or] (n) [xxxx] organises, keeps uses or acts in the management of, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such purposes; or

28 -: 28 :- (o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting; he shall be punishable [in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.] (2) For the purposes of sub-section (1), an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence: Provided that where an owner is convicted permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine.

29 -: 29 :- (3) Nothing in this section shall apply to - (a) the dehorning of cattle, or the castration or branding or nose-roping of any animal, in the prescribed manner; or (b) the destruction of stray dogs in lethal chambers or [by such other methods as may be prescribed]; or (c) the extermination or destruction of any animal under the authority of any law for the time being in force; or (d) any matter dealt with in Chapter IV; or (e) the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering. Section 11 prescribes punishment for the cruel treatment of animals. Under sub-clause (l) of Section 11, a specific reference has been made to mutilation or killing of any animal including a stray dog by using the method of

30 -: 30 :- strychnine injections in the heart or in any other unnecessarily cruel manner. However, sub-section (3) states that nothing in this section would apply to the destruction of stray dogs in lethal chambers or by such other methods as may be prescribed. 15. Section 38 permits the framing of Rules, which reads as under:- 38. Power to make rules : (1) The Central Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the forgoing power, the Central Government may make rules providing for all or any of the following matters, namely:- (a) the [***] conditions of service of members of the Board, the allowances payable

31 -: 31 :- to them and the manner in which they may exercise their powers and discharge their functions; [(aa) the manner in which the persons to represent municipal corporation are to be elected under clause (e) of sub-section (1) of section 5;] (b) the maximum load (including any load occasioned by the weight of passengers) to be carried or drawn by any animal; (c) the conditions to be observed for preventing the over-crowding of animals; (d) the period during which, and the hours between which, any class of animals shall not be used for draught purposes; (e) prohibiting the use of any bit or harness involving cruelty to animals; [(ea)the other methods of destruction of stray dogs referred to in clause (b) of subsection (3) of section 11;

32 -: 32 :- (eb) the methods by which any animal which cannot be removed without cruelty may be destroyed under sub-section (3) of section 13,] (f) requiring persons carrying on the business of a farrier to be licensed and registered by such authority as may be prescribed and levying a fee for the purposes; (g) the precautions to be taken in the capture of animals for purposes of sale, export or for any other purpose, and the different appliances or devices that may alone be used for the purpose; and the licensing of such capture and the levying of fees for such licences; (h) the precautions to be taken in the transport of animals whether by rail, road, inland waterway, sea or air and the manner in which and the cages or other receptacles in which they may be so transported;

33 -: 33 :- (i) requiring person owning or in charge of premises in which animals are kept or milked to register such premises, to comply with such conditions as may be laid down in relation to the boundary walls or surroundings of such premises, to permit their inspection for the purpose of ascertaining whether any offence under this Act is being, or has been, committed therein, and to expose in such premises copies of section 12 in a language or languages commonly understood in the locality; (j) the form in which applications for registration under Chapter V may be made, the particulars to be contained therein, the fees payable for such registration and the authorities to whom such applications may be made; [(ja) the fees which may be charged by the Committee constituted under section 15 for

34 -: 34 :- the registration of persons or institutions carrying on experiments on animals or for any other purpose;] (k) the purposes to which fines realised under the Act may be applied, including such purposes as the maintenance of infirmaries, pinjrapole and veterinary hospitals; (l) any other matter which has to be, or may be prescribed. (3) If any person contravenes, or abets the contravention of, any rules made under this section, he shall be punishable with fine which may extend to one hundred rupees, or with imprisonment for a term which may extend to three months, or with both. 30[XXXX] [38A. Rules and regulations to be laid before Parliament : Every rule made by the Central Government or by the Committee constituted under section 15 and every

35 -: 35 :- regulation made by the Board shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, as the case may be, or both Houses agree that the rule or regulation, as the case may be, should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.]

36 -: 36 :- 16. Sub-section (ea) of sub-section (2) of Section 38 states that the Rules may be made with regard to the other methods of destruction of stray dogs referred to in clause (b) of sub-section (3) of section 11. Therefore, these provisions permit the destruction of stray dogs in a manner which would not be cruel, in other words, destruction of stray dogs in a humane manner is permitted under the Act read with the Rules made there under. 17. ABC Rules, 2001, which have been framed under Section 38 of the 1960 Act, defines Animal Welfare Organisation, Local Authority and Owner in clause (b), (e) and (f) and they read thus:- 2. Definition: In these rules, unless the context otherwise requires,- (a) * * * * (b) Animal Welfare Organisation means and includes the Society for Prevention of Cruelty to Animals and any other welfare organization for animals which is registered under the Societies

37 -: 37 :- Registration Act of 1860 (21 of 1860) or any other corresponding law for the time being in force and which is recognized by the Animal Welfare Board of India; (c) * * * * (d) * * * * (e) Local Authority means a municipal committee, district board or other authority for the time being invested by law with the control and administration of any matters within a specified local area; (f) owner means the owner of an animal and includes any other person in possession or custody of such animal whether with or without the consent of the owner; (g) * * * * 18. Under Rule 3, dogs have been classified into two categories namely, (1) Pet Dogs and (2) Stray Dogs. While, it is the duty of the owner of the pet dogs to ensure controlled breeding, immunization, sterilization and licensing in accordance with the Rules and the law for the

38 -: 38 :- time being in force within a specified local area, the street dogs have to be sterilized and immunized by participation of Animal Welfare Organisations, private individuals and the local authority and the said Rules read thus:- 3. Classification of dogs and their sterilisation: (1) All dogs shall be classified in one of the following two categories (i) pet dogs, (ii) street dogs. (2) The owner of pet dogs shall be responsible for the controlled breeding, immunisation, sterilization and licensing in accordance with these rules and the law for the time being in force within a specified local area. (3) The street dogs shall be sterilized and immunized by participation of Animal Welfare Organisations, private individuals and the local authority. 19. Rules 4 and 5 speak about the formation of a Monitoring Committee for the planning and management of Dog Control Programme in the realm of sterilization,

39 -: 39 :- vaccination and to deal with critically ill or fatally injured or rabid dogs in a painless method by using sodium pentathol and to monitor dog bite cases. The said Rules reads as under:- 4. Formation of Committee: A monitoring committee consisting of the following persons shall be constituted by the local authority, namely- (a) Commissioner/Chief of the local authority, who shall be the ex-officio Chairman of the Committee; (b)a representative of the Public Health Department of the local authority; (c) a representative of the Animal Welfare Department if any of the local authority; (d) a veterinary doctor; (e) a representative of the district Society for Prevention of Cruelty to Animals (SPCA); (f) at least two representatives from the Animal Welfare Organisations operating within the said local authority.

40 -: 40 :- Committee. Rule 5 speaks about the functions of the 5. Functions of the Committee: The Committee constituted under rule 4 shall be responsible for planning and management of dog control programme in accordance with these rules. The Committee may.- (a) issue instructions for catching, transportation, sheltering, sterilization, vaccination, treatment and release of sterilized vaccinated or treated dogs; (b) authorize veterinary doctor to decide on case to case basis the need to put to sleep critically ill or fatally injured or rabid dogs in a painless method by using sodium pentathol. Any other method is strictly prohibited; (c) create public awareness, solicit cooperation and funding; (d) provide guidelines to pet dog owners and commercial breeders from time to time;

41 -: 41 :- (e) get a survey done of the number of street dogs by an independent agency; (f) take such steps for monitoring the dog bite cases to ascertain the reasons of dog bite, the area where it took place and whether it was from a stray or a pet dog; (g) keep a watch on the national and international developments in the field of research pertaining to street dogs control and management, development of vaccines and cost effective methods of sterilisation, vaccination, etc. 20. Rule 6 speaks that the Local Authority is also under an obligation for the establishment of specified number of dog pounds including animal kennels/shelters which may be managed by animal welfare organizations and incinerators to be installed by the local authority for disposal of carcasses and to sterlize and immunize street dogs with the participation of Animal Welfare Organistions, private individuals and the local authority, so as to control the street dogs population. The said Rule reads thus:-

42 -: 42 :- 6. Obligations of the local authority: (1) The local authority shall provide for- (a) establishment of a sufficient number of dog pounds including animal kennels/shelters which may be managed by animal welfare organizations; (b) requisite number of dog vans with ramps for the capture and transportation of street dogs; (c) one driver and two trained dog catchers to be provided for each dog van; (d) an ambulance-cum-clinical van to be provided as mobile center for sterilization and immunisation; (e) incinerators to be installed by the local authority for disposal of carcasses. (f) periodic repair of shelter or pound. (2) If the Municipal Corporation or the local authority thinks it expedient to control street dog population, it shall be incumbent upon them to sterilise and immunize street dogs with the participation of animal welfare organizations, private individuals and the local authority.

43 -: 43 :- (3) The animal welfare organizations shall be reimbursed the expenses of sterilization/immunization at a rate to be fixed by the Committee on fortnightly basis based on the number of sterilization/immunization done. 21. Rule 7, which has been assailed by some of the petitioners herein, reads as follows:- 7.Capturing/sterilization/immunization/ release: (1) Capturing of dogs shall be based on:- (a) Specific complaints (for which the local authority in consultation with the Monitoring Committee shall set up a dog control cell to receive complaints about dog nuisance, dog bites and information about rabid dogs); and (b) General:- (i) On receipt of specific complaint about nuisance or dog bite the same shall be attended on priority basis, irrespective of the area from which the complaint comes. On receipt of such complaint the details such as name of the complainant, his

44 -: 44 :- complete address, date and time of complaint, nature of complaint etc. shall be recorded in a register to be maintained for permanent record; (ii) Capturing for general purpose will be on such dates and time to be specified by the Committee. (2) The dog capturing squad shall consist of (i) The driver of the dog van; (ii) Two or more trained employees of the local authority who are trained in capturing of dogs; (iii) One representative of any of the animal welfare organization. Each member of the dog squad shall carry, a valid identity card issued by the local authority. The dog capturing squad will be accompanied by a representative of an Animal Welfare Organisation nominated for the purpose. (3) On receipt of specific complaint or for capturing dogs in normal course the dog squad will visit the concerned area, capture the dogs

45 -: 45 :- identified by the complainant in case of complaintoriented capturing and other dogs in case of general capturing. All the dogs caught will be tagged for identification purposes and to ensure that the dogs are released in the same area after sterilization and vaccination. Only stipulated number of dogs, according to the Animal Birth Control Program target, shall be caught by the van. A record of dogs captured shall be maintained in a register, mentioning therein the name of the area/locality, date and time of capture, names of persons in the dogs squad on that particular day and details about dogs captured such as number of male dogs, number of female dogs, number of puppies etc. (4) The dogs shall be captured by using humane methods such as lassoing or soft-loop animal catchers such as those prescribed under the provisions of Prevention of Cruelty (Capture of Animals) Rules, (5) While the dogs are being captured in any locality the representative of the local authority or

46 -: 46 :- of the Animal Welfare Organisation accompanying the dog squad will make announcements on a public address system that dogs are being captured from the area for the purpose of sterilization and immunization and will be released in the same area after sterilization and immunization. The announcement may also briefly educate the residents of the area about the dog control programme and solicit the support of all the residents reassuring them that the local authority is taking adequate steps for their safety. (6) The captured dogs shall be brought to the dog kennels/dog pounds managed by the Animal Welfare Organisations (AWOs). On reaching the dog pounds all the dogs shall be examined by the veterinarians and healthy and sick dogs should be segregated. Sick dogs should be given proper treatment in the hospitals run by Society for Prevention of Cruelty to Animals (SPCA)/other institutions and only after they are treated they should be sterilized and vaccinated. The dogs will be sterilized/vaccinated under the

47 -: 47 :- supervision of the veterinarians of the hospital run by the Society for Prevention of Cruelty to Animals (SPCA), Animal Welfare Organisation or other dog shelters. After necessary period of follow up, the dogs shall be released at the same place or locality from where they were captured and the date, time and place of their release shall be recorded. The representative of Animal Welfare Organisations (AWOs) shall accompany the dog squad at the time of release also. (7) At a time only one lot of dogs shall be brought for sterilization, immunization at one dog kennel or dog pound and these dogs shall be from one locality. Two lots from different areas or localities shall not be mixed at the same dog pound or dog kennel. (8) The dog kennel must have sufficient space for proper housing and free movement of dogs. The place should have proper ventilation and natural lighting and must be kept clean. Adults and puppies must be housed separately and amongst the adults the males and females also

48 -: 48 :- should be housed separately. Adequate arrangement for drinking water and food shall be made for dogs while in captivity. (9) Female dogs found to be pregnant shall not undergo abortion (irrespective of stage of pregnancy) and sterilization and should be released till they have the litter. 22. Rules 9 and 10 pertaining to euthanasia of street dogs and furious or dumb rabid dogs are extracted as under:- 9. Euthanasia of Street Dogs:- Incurably ill and mortally wounded dogs as diagnosed by a qualified veterinarian appointed by the committee shall be euthanized during specified hours in a humane manner by administering sodium pentathol for adult dogs and Thiopental Introperitoneal for puppies by a qualified veterinarian or euthanized in any other humane manner approved by Animal Welfare Board of India. No dog shall be euthanized in the presence of another dog. The person responsible for

49 -: 49 :- euthanizing shall make sure that the animal is dead, before disposal. 10. Furious or dumb rabid dogs: (1) On the receipt of complaints from the public to the Dog Control Cell of the Local Authority or on its own, the dog squad of the Local Authority would catch such dogs, suspected to be rabid. (2) The caught dog would then be taken to the pound where it would be isolated in an isolation ward. (3) The suspected rabid dog would then be subjected to inspection by a panel of two persons i.e.,- (i) a veterinarian surgeon appointed by the Local Authority; and (ii) a representative from an Animal Welfare Organisation. (4) If the dog is found to have a high probability of having rabies it would be isolated till it dies a natural death. Death normally occurs within 10 days of contracting rabies. Premature killings of suspected rabid dogs therefore prevents

50 -: 50 :- the true incidence of rabies from being known and appropriate action being taken. (5) If the dog is found not to have rabies but some other disease it would be handed over to the AWOs who will take the necessary action to cure and rehabilitate the dog. Rule 13 pertaining to the applicability of state or local laws reads as follows:- 13. Application of rules where local bye-laws etc., exist:- If there is in force in any area to which these rules extend, any Act, rule, regulation or bye-law made under any law for the time being in force by the State or the Local Authority in respect of any of the matters for which provision is made in these rules, such rule, regulation or bye-law shall to the extent to which- (a) (b) it contains provisions less irksome to the animal than those contained in these rules, shall prevail; it contains provisions more irksome to the animal than those contained in these rules, be of no effect.

51 -: 51 :- These Rules are framed by the Central Government under the 1960 Act, which is a Central Act. 23. On the other hand, Section 58 (12) r/w Section 345 of the Karnataka Municipal Corporations Act, 1976, read thus:- Section 58:- Obligatory functions of the Corporation: It shall be incumbent on the Corporation to make reasonable and adequate provision by any means or measures which it is lawfully competent to use or to take, for each of the following matters, namely.- (12) the destruction of birds or animals causing nuisance, or of vermin and confinement or destruction of stray or ownerless dogs. Section 345:- Destruction of stray pigs and dogs:- If any dogs [x x x x x] or pigs are found straying, the same may be summarily destroyed by any person authorized in that behalf in writing by a Commissioner.

52 -: 52 :- 24. While assailing Rule 7 of the ABC Rules, 2001, some of the petitioners have contended that having regard to Section 58(12) r/w Section 345 of KMC Act, 1976, the Commissioner of a Municipal Corporation and in the instant case, the Commissioner of B.B.M.P., has the power to summarily destroy the stray dogs. It is their grievance that this power is not being exercised in view of Rule 7 and as a result, the menace of stray dogs is writ large in the metropolis of Bangalore. 25. Countering the said contentions, learned senior counsel and the counsel appearing for the Animal Welfare Board and other N.G.Os working for the protection of stray dogs have supported the validity of the ABC Rules, 2001 and infact, contended that the 1960 Act as well as the Rules in view of Rule 13 would have an over-riding effect on Section 58(12) r/w Section 345 of the KMC Act, 1976, since the former are enacted by the Parliament. 26. Infact, it was also brought to our notice that in a matter pending before the Hon ble Supreme Court in

53 -: 53 :- SLP(Civil) 691/2009 between Animal Welfare Board of India v. People for Elimination of Stray Troubles (PESP) & Ors., the B.B.M.P. has filed an application seeking impleadment. Taking note of this submission, learned counsel for the petitioners have stated that the B.B.M.P. has pleaded before the Hon ble Supreme Court that the ABC Rules of 2001, are unconstitutional as they seek to over-ride the provisions of the 1960 Act, the Parent Act and therefore, the said Rules must be declared ultra vires; that a sum of Rs.11 Crore have been paid to Animal Welfare NGOs in Bangalore, during the last ten years; that Section 345 of the KMC Act, 1976 could be harmoniously read with the 1960 Act. It is therefore the contention of the petitioners, that the B.B.M.P. is estopped from contending before this Court that the injuries caused to children and adults as a result of being mauled by stray dogs has reduced on account of effective implementation of ABC Rules, 2001 and Anti Rabies Vaccination Programme within the jurisdiction of B.B.M.P. has reduced.

54 -: 54 :- 27. The petitioners have also brought to our notice, the averments made in paragraph 8 of the Affidavit filed by the Joint Director, Animal Husbandry, B.B.M.P., dated 18/10/2012 before this Court, to the effect that dogs in the habit of snapping at children/people, habitual biters, ferocious and with unpredictable temperament and behaviour will be isolated and observed for a period of ten days, during which they will be handled by Animal Welfare Organization, animal activists and behavioural therapists. If there is no change in the behaviour or habit, it will be evaluated by a veterinarian of the Government and that of Animal Welfare Organization and will be put down in a humane way by use of Sodium Pentathol injection or any other method as prescribed by Animal Welfare Board of India, in the interest of public safety and health. Therefore, it is the contention of some of the petitioners, that even the BBMP is in favour of culling of stray dogs. 28. This has been seriously objected to by the learned senior counsel and counsel appearing on behalf of

55 -: 55 :- the respondent Organizations. Thus, the conundrum to be unraveled in these cases, is with regard to the applicability of the ABC Rules, 2001 particularly, Rule 7 in the backdrop of sub-section 12 of Section 58 r/w Section 345 of the KMC Act, The provisions of the KMC Act, 1976 provide for the destruction of stray dogs, on the authorization of the Commissioner of the Corporation, as part of its mandatory functions as stated in clause 12 of Section 58 of the Act. Along side, another issue to be addressed in these cases is the vires of Section 7 of the ABC Rules, 2001 which are enacted under 1960 Act made by the Parliament. 29. A submission was also made on behalf of the learned senior counsel appearing, for the Animal Welfare Board of India, that the provisions of the Municipal Corporation Act, which deal with stray dogs are inconsistent with the 1960 Act, made by the Parliament as well as the Rules thereof and therefore, the latter must prevail.

56 -: 56 :- 30. It is noticed that the 1960 Act and Rules made there under are enacted under Entry-17, List III (Concurrent List) which deal with Prevention of cruelty to animals (Central Law). On the other hand KMC Act, 1976 is enacted pursuant to Entry-5 and Entry-6 of List-II (State List) which deal with the powers of Municipal Corporations; public health and sanitation, amongst other things (State Law). In order to ascertain as to whether there is any inconsistency between the Central Law or the State Law and as to whether the central law must then prevail. Article 246 of the Constitution of India is extracted for facility of immediate reference: 246. Subject-matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in Schedule VII (in this Constitution referred to as the Union List ).

57 -: 57 :- (2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State [***] also, have power to make laws with respect to any of the matters enumerated in List III in Schedule VII (in this Constitution referred to as the Concurrent List ). (3) Subject to clauses (1) and (2), the Legislature of any State [***] has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in Schedule VII (in this Constitution referred to as the State List ). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.

58 -: 58 :- 31. Clause (2) of Article 246 of the Constitution, states that notwithstanding anything in clause (3), the Parliament and the Legislature of any State also have the power to make laws with respect to any matters enumerated in List-III to the VII Schedule (Concurrent List). Clause (3) thereof, states that the Legislature of any State has exclusive power to make laws for the State with respect to any matters enumerated in List-II of the VII Schedule (State List). However, clause (3) of Article 246, is subject to clauses (1) and (2) which begin with a non obstante clause. Also clause (1) of Article 246 states that notwithstanding anything in clauses (2) and (3) parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of the VII Schedule (Union List). 32. The power to legislate which is stated in Article 246 have to be read with the various Entries in the three lists of the VII Schedule, which are the fields of legislation which define the respective areas of legislative competence