NATIONAL PIGEON ASSOCIATION OF INDIA (NPA INDIA) v Union of India and Others

W.P.(C):8997/2020 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942 WP(C) NO. 8997 OF 2020 ## PETITIONER/S: NATIONAL PIGEON ASSOCIATINO OF INDIA (NPA INDIA) REPRESENTED BY ITS PRESIDENT,MUHAMMED NEJEEB.K.A, 1. ag 5/427 E,E.V.G.ROAD,PUNNAKKA BAZAR, MATHILAKAM POST, THRISSUR-680 685. BY ADVS K.R.SRIPATHI ## **RESPONDENTS:** 1. UNION OF INDIA REPRESENTED BY SECRETARY, DEPT. OF ANIMAL HUSBANDRY AND DAIRYING, MINISTRY OF AGRICULTURE,KRISHI BHAVAN, NEW DELHI-110001. 2. STATE OF KERALA, REPRESENTED BY SECRETARY, ANIMAL HUSBANDRY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-659 001. 3. THE DIRECTOR, TIHE DIRECTORATE OF ANIMAL HUSBANDRY,VIKAS BHAVAN,UNIVERSITY OF KERALA,SENATE HOUSE CAMPUS, P.M.G,THIRUVANANTHAPURAM-695 033. DISTRICT COLLECTOR, 4. WAYANAD RD,CIVIL STATION,ERANHIPPALAM,KOZHIKODE-673 020. DISTRICT COLLECTOR, 5. CIVIL STATION ROAD,UPHILL, MALAPPURAM-676 505. R4 BY BY ADVS SHRI.P.VIJAYAKUMAR - R5 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C):8997/2020 2 Dated this the 15[th] day of March, 2021 ## **JUDGMENT** ## **S. MANIKUMAR, CJ** The petitioner, a Trust established by a group of pigeon lovers, has filed this writ petition as a Public Interest Litigation seeking for the following reliefs: - (i) Issue a writ of mandamus or any other appropriate writ, direction or order directing respondent Nos. 4 and 5 to ensure that the guidelines in Ext.P1 Action Plan for Prevention, Control & Containment of Avian Influenza (Revised -2015) issued by the first respondent is complied with in its totality. - (ii) Issue a writ of mandamus or any other appropriate, writ, direction or order directing respondents 1 and 2 to revise the guidelines issued under the Action plan for Prevention, Control and Containment of Avian Influenza (Revised2015) in the light of safeguarding the lives of those birds who do not come within the contact of the infected birds. 2. Shorn of unnecessary details, facts for the disposal of the writ petition are as follows. State of Kerala is under the threat of a serious epidemic and pandemic Covid-19, which has already taken away a large number of lives across the globe. Further, the State of Kerala is also under the threat of another zoonotic disease, which has affected the poultry species in the districts of Alappuzha, Kozhikode and Malappuram. Keeping in mind the threat of such zoonotic diseases, Parliament have enacted the Prevention and Control of Infectious and Contagious Diseases in Animals Act, 2009 ('Act, 2009' for short) on W.P.(C):8997/2020 3 20.03.2009 with the objective of providing prevention, control, and eradication of infectious and contagious diseases affecting animals for prevention, control, for preventing the outbreak or spreading of such diseases from one State to another, and to meet the international obligations of India for facilitating import and export of animals and animal products, and for the matters connected therewith or incidental thereto. 3. It is also submitted that in view of a threat of the global outbreak of Avian Influenza and apprehensions of a human pandemic, Department of Animal Husbandry, Dairying & Fisheries (DADF), Government of India, the first respondent, had prepared an action plan in 2005, which was revised in 2006, 2012 and finally, in the year 2015, viz., Action Plan for Prevention, Control and Containment of Avian Influenza (Revised-2015) for guidance of the State Government for prevention, control and containment of Avian Influenza in the country. 4. The actions to be taken by the Animal Husbandry & Public Health, Department of State Government pursuant to the Action Plan include setting up of a control room in the State, constitution of Rapid Response Teams (RRTs), setting up of an infected zone of 1 km. radius from epicenter, surveillance zone of 01-10 kms. radius of epicenter with details of population of birds involved in 1 km. radius for culling operations and 01-10 kms. for surveillance zones, medicines/ W.P.(C):8997/2020 4 disinfectants, Personal Protective Equipment (PPE) kits, health check-up and supply of tamiflu. Accordingly, the District Collector, by virtue of the powers conferred on him under the Act, issued an order directing all the poultry species within 1 km. radius of the epicenter to be culled for the prevention and spread of the epidemic. According to the petitioner, the Rapid Response Team (RRT) and the professionals involved in the process of culling have acted beyond the guidelines issued in that regard, whereby they have resorted to carry on the culling operation beyond the radius of 1 km. causing grievance to the members of the petitioner Organisation. 5. Learned counsel for the petitioner contended that the members of the petitioner Organization breeds fancy pigeons, which have no contact with migratory birds or other poultry birds, which are said to be the carriers of the virus. 6. Petitioner is aggrieved by the mechanical culling process, without application of mind, as to whether the culled birds have or is likely to have any actual contact directly or indirectly with the infectious birds or the birds likely to be infected in future. It is also contended that the birds which pose no potential threat of contracting the disease have the right to life. It is further contended that the Government of Kerala, the 2[nd] respondent, has announced compensation schemes only for the owner of the culled hens and none others. According to the W.P.(C):8997/2020 5 petitioner, the respondents are not adhering strictly to the guidelines envisaged under Ext.P1 Action Plan, 2015, wherein it is clearly stipulated that the culling activities shall take place only with the culling zone which is within the radius of 1 km. from the epicenter of the outbreak. 7. We have heard the learned counsel for the appellant and the learned Senior Government Pleader, Sri. V. Tek Chand, apart from perusing the documents and materials on record. 8. Learned counsel for the petitioner has relied on the decisions in _**Karnail Singh and others v. State of Haryana**_ and _**Animal Welfare Board of India v. Nagaraja and Ors.**_ [(2014) SCC 547]. In _**Nagaraja's**_ case (cited supra), the Hon'ble Apex Court held that animal welfare laws have to be interpreted keeping in mind the welfare of animals and species best interest subject to just exceptions out of human necessity mentioned in Sections 11(3) and 28 of the Prevention of Cruelty to Animals Act, 1960 and that, so far as animals are concerned, “life” means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity. 9. Learned Senior Government Pleader has filed a statement along with Annexure R3(a) Action Plan of Animal Husbandry for Preparedness, Control and Containment of Aviation Influenza, refuting W.P.(C):8997/2020 6 the contentions raised in the writ petition and submitting that the Action Plan as detailed in Annexure R3(a) is being scrupulously followed when an outbreak is reported and that the performance of culling activities outside the 1Km radius is made depending upon the extent of outbreak and in tune with the directions issued as per Annexure R3(a). 10. It is also stated that Avian Influenza also called Bird Flu, is a viral infection that can infect not only birds, but also humans and other animals. H5N1 is the most common form of Bird Flu. It is deadly to birds and can easily affect humans and other animals that come in contact with the carrier. The crucial form of transmission is from wild birds to poultry and then to humans through secretions, excretions, poultry products and carcasses. 11. In the year 2020 and 2021, when Avian Influenza was transmitted, Rapid Response Teams were constituted for depopulation in infected zones, and mass culling process started thereafter. The culling process, disposal of infected materials, and clean up disinfection, in the infected zone, were properly carried out by the Rapid Response Team through the supervision of experts of Animal Husbandry Department, Local Self Government Authorities, and Revenue Authorities. 12. It is also stated that the process of procedures and action to be followed, after confirmation of the outbreak of Avian Influenza, have been detailed in Annexure R3(a) Action Plan of Avian Influenza, issued W.P.(C):8997/2020 7 by the Ministry of Agricultural, Government of India, and that, it is mandatory for all the States to follow Annexure R3(a), once the disease is confirmed in a State. 13. Chapter II of Annexure-R3(a) deals with the steps to be undertaken in case of suspicion of Avian Influenza outbreak and it states about visit to the site of outbreak (Epicentre), kit for Veterinary Officers/DIO and its use, preliminary and clinical investigations to be done by Disease Investigation Officer (DIO)/Veterinarian etc., Clinical Investigation, Epidemiological inquiry report, Actions following clinical investigations, collection of samples and dispatch for laboratory tests, types of samples to be sent to the Laboratory for testing/post-mortem, mortality in wild birds, collection and dispatch of samples, immediate reporting to the Director, Animal Husbandry, the District Collector and others, identification of “alert-zone”, restrictions to be enforced at the site and in the “alert-zone”, pending receipt of test results, action to be taken in case laboratory diagnosis is negative for AI, etc. 14. Chapter III of Annexure R3(a) deals with Action Plan to deal with confirmed outbreak of Avian Influenza (AI) and as per Chapter III.3, demarcation of surveillance and infected area and actions to be taken are narrated. The same reads thus: “ _III.3 Demarcation of Surveillance and infected Areas and Action to be Taken_ W.P.(C):8997/2020 8 _The district administration will notify the names of all the villages and habitations within a radius of 0-1 km i.e. 1 km radius from the site of confirmed AI case and within 1-10 kms radius. The area within one km from the site of confirmed AI will be designated as “_ _**Infected zone** ”. Reset of the area within 1 – 10 km is the “Surveillance Zone”. The infected zone should be clearly and prominently displayed in the local language, preferably through sign-boards. The Surveillance zone should act as a buffer-zone between the infected area and the disease-free area. The State government, in consultation with the Government of India may change the radii of the infected zone by one more km each, maximum up to 3 km., if the foci of infection / mortality are scattered over a larger area. In such a case, the culling zone will be extended to one km radius from the new site of infection without notifying the disease again. Further/more occurrence of AI, if any, beyond 3 km. radius of this limit will require to be notified as a fresh/new outbreak by the Department/ State Government as per due procedure.”_ 15. From the above, it is clear that the State Government, in consultation with the Government of India, may change the radius of infected zone by more than 1 km. each up to a maximum of 3 kms, if the foci of infection/mortality are scattered over a larger area. Further, as per Chapter III.9 of Annexure R3(a), which deals with depopulation of birds in the infected zone, all the live poultry birds/other captive birds, within the infected zone, has to be culled completely, irrespective W.P.(C):8997/2020 9 of backyard, commercial or ornamental birds, and that, pigeon is listed in the List of animal species known to be affected by Avian Influenza. 16. That apart, on a scrutiny of Annexure-R3(a) Action Plan, it is evident that a clear methodology is prescribed by the Government of India, Ministry of Agriculture, Department of Animal Husbandry, Dairying and Fisheries, to tackle the situation of Avian Influenza. The State, as well as the Central Government Departments, have to act in tandem, in order to square up the issues arising from the Avian Influenza and its outbreaks. In fact, the culling strategy of poultry, disposal of dead birds, method of culling, depopulation on a farm, sites for disposal of birds and its management, destruction of contaminated materials, clean up and disinfection, cleaning and disinfection of commercial farms, etc., are all dealt with under the Action Plan. Above all, the interest of the farmers are also protected by virtue of Chapter IV.3, which deals with compensation to be paid for forced culling, and it reads thus: _“IV.3. Compensation to be paid for forced culling_ _It is GOI's policy that the farmer must be compensated for the loss of birds during culling. District Collectors should be assigned to expedite payment and to prevent the misuse of the scheme. It will be necessary to collect data on the poultry population in each area before the receipt of test results. The Government of India will share 50% of the total cost of compensation paid._ W.P.(C):8997/2020 10 _The rate of compensation may be reviewed and decided from time to time by GOI in consultation with State Governments. The share of expenditure of Government of India can be charged to the CSS “Assistance to State for Control of Animal Disease (ASCAD)” operational in each State. It is suggested that State Governments should consider following issues as part of operational preparedness:_ _Compensation should be paid on the spot, immediately after the culling is over or at the time of collecting birds from the owners.”_ 17. Therefore, taking in account the various aspects that are dealt with under Annexure-R3(a) Action Plan, it is clear that it is based on a clear cut procedure, the operations are carried out by the officials of the State as well as the Central Government. Merely because the farm is situated in a different place and outside the area, that will not disable the departments of the State and the Central Governments to take stock of the situations prevailing. The intensity of the situation and the ramifications that may occur, if emergent actions are not taken, are all matters to be considered by the respective officials while discharging their functions under the Action Plan. 18. The farmers who are affected by the operations under the Action Plan are properly compensated by virtue of the provisions extracted above. After all, it is for saving the life and for the existence of the remaining birds and the human being as such, the precautionary W.P.(C):8997/2020 11 measures are dealt with under the Action Plan. Once the authorities have taken a decision to carry out the action in a particular manner, unless and until the petitioner was able to show any _mala fide or arbitrary_ action on the part of the officials, writ court is not expected to sit over the situations and arrive at a different conclusion than the one arrived at by the officers, who are well aware of the situations existing and the action plan to be carried out. It may be true that a citizen has a constitutional and fundamental right to rear birds as pets, but that right is subject to reasonable restrictions, well protected under Part III of the Constitution of India, and in any grave situation like the one at hand, the State and its instrumentalities are duty bound to impose restrictions in the larger interest of the citizens. In our view, an individual or a collective right guaranteed under the Constitution of India can only be a right subject to the larger public interest guaranteed under the Constitution to the citizens as a class, and whenever any situation arises causing threat to the national or State's specific interest, such interest should have credence and priority over other fractional interests and rights of the citizens, which is one of the most important facets of our Constitution to be respected, honoured and conceded by all, in the interest of the humanity and the nation as a whole. 19. Moreover, it is a settled position in law that unless clear _mala fides_ or arbitrary or illegal actions are able to be established by the W.P.(C):8997/2020 12 petitioner in a Public Interest Litigation, a writ court will not take stock of the situations allegedly prevailing, and convert themselves as officers under the Action Plan, and issue directions to be undertaken in regard to the measures as regards Avian Influenza, especially due to the reason that the official actions are presumed under law and facts, carried out in accordance with law . 20. Taking into account the above aspects, we are of the view that petitioner has not made out a case warranting interference under Article 226 of the Constitution of India. We are also of the view that the action plan contemplated under Annexure-R3(a) scheme issued by the Government of India is based on clear cut studies made by the Ministry of Agriculture, Govt. of India, and therefore, the contention put forth by the petitioner that in violation of the action plan, the powers are exercised by the officials, cannot be sustained under law. In the result, the writ petition fails and accordingly, it is dismissed, however, no order as to costs. sd/- **S. MANIKUMAR, CHIEF JUSTICE** sd/- **SHAJI P. CHALY, JUDGE** _Rv/krj_ W.P.(C):8997/2020 13 ## **APPENDIX** ## PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF CHAPTER 1 OF THE ACTION PLAN FOR PREVENTION, CONTROL & CONTAINMENT OF AVIAN INFLUENZA (REVISED-2015) EXHIBIT P2: TRUE COPY OF THE MEDIA REPORT FEATURED IN THE HINDU DATED 14.03.2020 DEPICTING THE NEWS OF THE CULLING OPERATIONS. EXHIBIT P3: TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER HEREIN DATED 13.03.2020 BEFORE THE 4TH RESPONDENT. EXHIBIT P4: TRUE COPY OF THE TRUST DEED OF THE PETITIONER TRUST DATED 28.06.2018. ## RESPONDENTS' EXHIBITS: ANNEXURE R3(a): TRUE COPY OF THE ACTION PLAN OF ANIMAL HUSBANDRY FOR PREPAREDNESS, CONTROL AND CONTAINMENT OF AVIAN INFLUENZA. /True Copy/ P.S to Judge. rv