The cover of 'High and Law' by Sanjay Pinto.
It's a 'pet' peeve in many apartment buildings and gated communities. Barking dogs may seldom bite but that does not prevent neighbours' tongues from wagging. Often it leads to heated arguments between pet owners who staunchly defend their right to keep them in their homes, either owned or rented; and others who vociferously protest. What rankles is that while a pet is treated like a family member, it is perceived as and branded a 'nuisance' by others.
There is no legal prohibition on keeping domestic animals like cats or dogs in residential complexes. In keeping with the slogan 'adopt, don't shop', many animal lovers rescue abandoned or injured dogs or cats and take them home as pets, or as stop gap shelter till others adopt them. If neighbours mount pressure on them to throw these animals out, they would be encouraging violation of Section 11(1)(i) of the Prevention of Cruelty to Animals Act,1960, which punishes anyone who "without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst." There is also a fundamental duty cast on citizens under Article 51A(g) of the Constitution of India to "have compassion for living creatures."
There is no legal prohibition on keeping domestic animals like cats or dogs in residential complexes.
Let's get this straight. Residents' Welfare Associations cannot legislate. Their bye-laws cannot override statutory provisions. There are different degrees of objections, usually from people who own multiple flats and think they own the whole building, treating it as their personal fiefdom. The only hitch in keeping a pet in your apartment is an express prohibition in the Rental Agreement. Other than the house owner, no one is legally entitled to stop you from rearing a pet.
However, on the ground, even if pets are grudgingly allowed, restrictions are often imposed on taking them in elevators. While a dog obviously cannot be permitted in an association swimming pool, no Residents'Association can impose a bar on the use of common facilities like lifts while taking their pets out. In a case on the point, the Thane District Consumer Forum in Ajay Madhusudan Marathe Vs New Sarvodaya Cooperative Housing Society (2008) had pulled up the association for deficiency in service under the Consumer Protection Act and awarded compensation to the complainant.
Contrary to certain placards we see in parks, the Animal Welfare Board of India, in one of its Circulars, made it clear that pets cannot be banned in such common facilities.
While pet owners have rights, there is also a three-fold civic duty to ensure that their animals are vaccinated against rabies and other diseases, that they are not ferocious and are on a secure leash and preferably with a muzzle when taken out of the flat for a walk and that their poop is scooped by the owners or their servants if common areas like staircases, elevators and corridors are soiled. Additionally, although there is no penalty prescribed for not obtaining a licence from the civic body under the Madras City Municipal Corporation Act, 1919, valid vaccination records are a prerequisite for its issuance.
The common refrain from the 'anti pet brigade' is public nuisance. This is covered under Section 268 of the Indian Penal Code (IPC). The key ingredients are injury, danger, annoyance and obstruction. If a dog bites other residents or scares children, then obviously this provision comes into play. Not if it merely barks or passes by with its owner. Barking is a dog's natural expression. Not if it urinates or defecates in a common area. Animals don't have remote controlled bladders or bowels. As long as the pet owner arranges for it to be cleaned, the matter should end there.
Section 133 of the Code of Criminal Procedure (CrPC) on removal of nuisance is also invoked by angry neighbours. But is an apartment complex a public place? The Gujarat High Court in Ramachandra Malojirao Bhonsle vs Rasikbhai Govardhanbhai Raiyani (2000) held that they are not accessible to the public at large. "There only the occupants of the flat, their relatives, friends and companions are entitled to enter the complex." The court further ruled that Section 133 CrPC "cannot be used for settlement of disputes between private parties."
You can choose your friends, spouse, even home owner but not your neighbours. Hospitality must replace hostility, so that the dogs bark but the association carries on!
Published with permission of Thomson Reuters from 'High and Law' by Sanjay Pinto. Order your copy here.
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