This article is written by Abhishek Kurian from National Law University, Odisha. This is an exhaustive article about CattleTrespass Act, 1871, which would help one in understanding its provisions, remedies and defences as well.
Table of Contents
Introduction
If you have ever been on the highway or even any hill station for that matter, there is a high chance that you would have seen a herd of cattle walking or grazing as if they were completely in control of the herdsman. Have you ever wondered what would happen if these animals strayed away from the herdsman, entered a person’s property and maybe even injured them? Who would be responsible for such damage?
Like all forces of nature, animals are also not under complete control of man. While one could employ certain measures to avoid any accidents caused by his/her cattle there is no certainty as to how the animals would behave in different situations. This could lead to them intruding upon someone else’s property or land and even cause damages to the inhabitants of the property, which is known as cattle trespass.
If you have been affected by such acts of trespass on your property or are just curious about such a situation and their consequences, then this article would help you in understanding the concept of cattle trespass, the relevant laws and the remedy for such offences.
Trespass by animals
Basically, trespass is a tort that deals with the unlawful entry of a person or animal into the property of a person. This is an offence as no one but the owner and ones associated with him/her have the legal right to do so. When animals enter the property of a person, the same offence of trespass is caused but naturally, the liability is shifted to the owner of the animal.
When animals are in the possession of a person there is the chance of damage being caused by them and hence there needs to be the determination of their nature and behaviour for imposing some kind of liability. There are two rules or situations which would usually apply during animal liability and trespass. They are Scienter and Cattle Trespass.
Doctrine of Scienter
This rule in effect classifies animals in two categories, i.e. ones that are dangerous or not tameable and others that are domestic or less dangerous.
‘Scientia’ basically means knowledge, and so the doctrine of Scienter essentially means that if an animal that inherently, by its nature or size is dangerous (like an elephant, tiger, bear) causes harm and the owner or person in possession of the animal had the knowledge of this danger then he or she would be liable for any damage that is caused by this type of animal.
In Behren vs. Berten Mills Circus, the Circus elephant injured the plaintiff upon being provoked by a dog belonging to the plaintiff. Here, the elephant is a dangerous wild animal under the law. Hence, when the plaintiff filed for damages, the defendants (the Circus company) were held liable.
The doctrine of scienter also covers the situations when the owner is in possession of a domestic animal but has the tendency to become violent and dangerous. For e.g., a buffalo that gets violent and attacks people. If such an animal causes damage to a person or property by trespassing then the owner would be liable for the damages caused. Although there are three things that need to be proved by the plaintiff before imposing liability on the owner:
- The animal was owned by the defendant.
- The animal had the tendency to become violent and cause damage.
- The owner or possessor was aware of such behaviour and violent tendencies.
Let’s say, a cow belonging to the plaintiff was attacked by two female dogs belonging to the defendant. It was known to the defendant that his dogs had indulged in such behaviour before as well, and despite that failed to take adequate measures. Hence the defendant would be held liable for the damages.
Cattle Trespass
This is the other rule for determining animal liability and includes all animals that are considered to be “cattle” (explained later). If the cattle of a person go stray and enter and damage another person’s land then this is considered to be cattle trespass and the liability of any damage would be on the owner of the cattle.
It would also be needed to be determined if there was an issue of negligence involved in the way the owner handled the cattle. If there was loose handling or omission of any necessary precautions, then there it would be held that negligence existed. In the absence of negligence, it would be a case of trespass only. Here, the cattle owner would be strictly liable for the damages, i.e. liable even without the factor of negligence.
What was the need for a Cattle Trespass Act
Cattle trespass is a very prevalent issue, especially in a country like India, which has been an agricultural land for a long time. The practice of shepherds and herdsmen taking their herd for grazing and even many farmers sheltering cattle in stables is common in many places of the country. Since, there were no strict laws to define the offences and impose definite punishments which could have caused major issues regarding the liability of damages in such acts of trespass.
Hence, there was the need for a statute that would help in giving clarity to the laws, that would govern such acts of trespass and would also help in providing justice to the aggrieved person.
Cattle Trespass Act, 1871
The Cattle Trespass Act, 1871 was brought out as an attempt to bring together all the previous laws that dealt with cattle trespass. Firstly, let us understand which animals come under the ambit of the term ‘cattle’. There are 17 different animals that come under the definition of cattle which is defined under Section 3 of the Act. These basically include elephants, camels, buffalos, horses, pigs, asses, sheep, lamb, etc. and their offsprings as well.
Since animals come under movable property under the General Clauses Act, 1897, the owner of the animals have a right to sue for damages if they are injured and it can be said that this right would also impose upon them the liability if any damage is caused by them.
With that being said, it is also a duty of the legislature under Schedule 7 (State List- 16th entry) to prevent cattle trespass and make provisions for pounds where any detained animals could be kept until the owner takes possession of them.
Therefore, in 1871 a statute for laws that govern cattle trespass was enacted. Let us deal with the provisions of the Act.
Important provisions
Establishment and control of pounds (Section 4 & Section 5)
When a cattle is stray and it trespasses the property of a neighbour or the property of the government, they are confiscated or seized in a pound which is a place of shelter for these stray animals as long as their owners do not claim them back.
According to the Act, there is a duty of the State Government to keep the animals for which there should be such pounds established by the government that would help in impounding or keeping them (Section 4).
These pounds would be controlled by the Magistrate of the state who must also decide a rate for keeping the cattle safely in the pounds and for providing the cattle with fodder and water (Section 5).
According to Section 6 of the Act, there would also be provisions for appointing a pound-keeper who would be responsible for managing the cattle and the pounds as well. These pound keepers would be public servants as defined under IPC (Section 21).
Duties of pound-keepers (Sections 7-9)
The duties of the appointed pound keeper would include:
- Keeping a record of all the events in the pounds related to the confiscation or returning of cattle and sending the due profits accordingly (Section 7).
- Registering the essential details of the seizures or confiscations like the number of animals, details of animals, time at which they were brought to the pound, etc. (Section 8).
- Taking care of the cattle in terms of their fodder, water, etc. until they are claimed back or are disposed of otherwise (Section 9).
Impounding of the cattle
The cattle that are found to be straying that results in trespass or damage of property are impounded by the Government. There are two situations in which cattle are impounded.
Cattle that have damaged land (Section 10)
Under this Section, if a person owning land has faced damage in his land or crops on that land, he has the right to seize the animal or animals that have caused such damage. Here, the owner could also imply a mortgagee, occupier or any other person who has invested in the land.
An important point to note is that mere trespass by an animal in their land does not give them such right and there must be actual damage(determined by the Act) to the property or to the crops that they own. Also, this act also provides for the police assistance in the confiscation of the cattle.
Cattle that have damaged public road, canals or embankments (Section 11)
The person who is responsible for the maintenance of any public property like the police may seize the cattle that are causing damage to the property of the government like roads, canals, drainage works, embankments, plantations or any other property that is associated with such possessions of the government (Section 11). This includes uncontrolled travelling upon any of these places as well. Once found, it is the duty of the official (police) to take the animals to the nearest pounds within a period of 24 hours.
Fines for the owners of the cattle (Section 12)
A fine is charged from the owner for the safe-keeping and feeding of the cattle in the pound. This fine is charged on a per head basis and is determined by the State government (Section 12). This could be changed occasionally and is also dependent on the locality of the pound. These fines are received by the Magistrate. A list of fines detailing the rates of the fodder for the animal must also be posted near every pound.
The procedure of delivery and sale of cattle
Claiming of the Cattle by the owner (Section 13)
If the owner of the cattle or his agent come to the pound to claim their cattle they must pay the fine according to the cattle’s requirement – the amount of fodder, water, number of days stayed etc. The cattle would be delivered to the owner and they must sign a receipt which would be kept in the records of the pound (Section 13).
Procedure if the owner of the cattle is not claimed within a week (Section 14)
A time period of 7 days is given to the owner to claim his cattle. If no one claims the cattle within that period, the pound keeper must inform the same to an officer from the nearest police station or as appointed by the District Magistrate (Section 14).
The officer, in turn, must put out a notice in a prominent place that would contain the details of the cattle that was seized. Such details would include the number of cattle, description of the cattle, time and place of seizure.
There must be a public announcement regarding the same near the place from where the cattle were impounded. If even after this notice there is no one claiming the cattle it could be sold by a public auction. If it is difficult to sell the cattle at a fair price then it could be disposed of by any other manner which is suitable.
According to Section 19, no officers or pound keepers must indulge in the purchase of the cattle directly or indirectly. Also, the officers or pound keepers in charge of the cattle must not release or deliver the cattle without following the due procedure mentioned above, except in a case where the Magistrate has provided special orders for the same.
Complaint of illegal detention or seizure
If the cattle are seized by any officials the cattle owners have the right to file a complaint against the seizure contending that such confiscation was wrong or illegal. Such a complaint must be made to the District Magistrate or any other official within 10 days of the seizure. (Section 20)
In case the owner of the cattle is not willing to make the payment of fines claiming that the seizure was illegal he/she could make pay the deposit and then the cattle would be delivered to him (Section 15).
The complaint can be made by the owner of the cattle or his agent to the Magistrate in a written or verbal manner. The Magistrate would verify the grounds of the complaint and would summon the person in charge if the complaint is found to be correct and then would conduct an enquiry.
If the confiscation of cattle is found to be illegal or wrongful then there would be adequate compensation given to the owner of the cattle. Such compensation would cover the expenses that were incurred by the owner in getting back his cattle, expenses incurred because of the absence of the cattle for that time period and any other expenses that were a direct consequence of the seizure as stated in Section 22 of the Act.
Penalties
Penalty for use of force to oppose the seizure or rescues cattle from seizure (Section 24 & Section 25)
According to Section 24, whoever opposes the confiscation of the cattle, rescues the cattle from the confiscation or basically interferes with the process of confiscation carried out by an official or any other person responsible, would be liable for punishment. This punishment would include imprisonment for a maximum period of 6 months or a fine for an amount of 500 rupees, or in some cases both.
Section 25 of the Act deals with the penalty for mischief by a person by causing the cattle to trespass on a land. For such an action, there can be a recovery by means of fine or by selling the cattle that belongs to the owner of the cattle.
Penalty for damage caused by pig to the public property or land or road (Section 26)
According to Section 26 of the Act, an owner or keeper of pigs can be penalised if an act of trespass is committed by the pigs or any damage to crops, land or public roads caused by them. The penalty will be in the form of a fine for a maximum amount of 10 rupees.
In accordance with any notification by the State government, the amount of fees or the subject of the punishment i.e. pigs could be changed as well.
Penalty on pound keeper on failure to fulfil his duties (Section 27)
This is a provision in the Act to make sure that the pound keeper fulfils all his duties as well. Under this Section, the failure to provide the cattle with adequate fodder or water, or omission in his care would lead to the keeper being punished with a fine for a maximum of 50 rupees which would be deducted from his salary.
Suits for compensation (Section 29 & Section 30)
Section 29 deals with the provision of the compensation that can be sought by the person whose crop or land was damaged by the trespass of the cattle. It states that a person is free to file a suit against the owner of the cattle in a competent court.
Section 30 of the Act states that any compensation that was previously paid by the orders of the Magistrate to the aggrieved would be reduced from the compensation that would be received from the suit filed in Court.
Important case laws
Now that we have understood the provisions of the Act let us try to understand the application of the Statute using some relevant case laws.
Krushna Sahu and Ors. vs Chaitan Das, 1965
In this case, the petitioners complained that a herd of 51 animals belonging to the respondents had trampled on their land and damaged their crops. This trespass made the petitioner drive away the cattle to a shed for cows.
It was argued by the respondent that they were involved in illegal impounding of cattle under Section 22 of the Cattle Trespass Act, 1871(see above) and hence were liable to pay compensation for the same, as instructed by the Magistrate.
It was contested that there was damage caused by the cattle and hence were forced to take the action of impounding. They also argued that the Magistrate does not have the power to impose a fine according to the Statute.
It was held that the imposition of the fine was invalid and the impounding was right on the part of the petitioners as two conditions required for impounding cattle were fulfilled:
- There must be cattle trespassing done according to the Cattle Trespass Act.
- They would have done damage on the land, irrespective of how nominal the damage would be.
Buckle vs Holmes, 1925
In this case, the defendant’s cat killed the pigeons of the plaintiff who sued for trespass and the respective damages. It was held by the Court that the cat cannot be held liable for trespass as it is not capable of causing damage and is not a dangerous animal. The owner could not have known that it could cause such kind of damage as it did not have the tendency to commit such acts.
This case is important to understand that animals like dogs and cats although domestic would not come under cattle trespass as they have the habit of straying but are not really capable of causing real damage. But as discussed before they would be liable for damages if they have the tendency to cause such damage and the owner was aware of such behaviour.
Eapen Chacko vs Collector of Kozhikode
In this case, an animal pound was being abolished as declared by the government’s orders. A petition was made to quash such an order for which there was an enquiry made and a show-cause notice was issued to the petitioner. It was held by the Court that the state government had the complete discretion to decide on the establishment and abolishment of a pound. This case is important as it helps us understand that the power of establishment of a pound lies with the state government and so does the power of its abolishment.
Challenges
Proof of damage
It is obvious that there can be great difficulty in proving cattle trespass. While in human offences there can be ways of gathering evidence like cross-questioning, depositions, fingerprints, documents, and other records, etc. There are no such ways to prove the animal’s fault. So great care must be taken to ensure that the animals responsible for trespass belonged to the defendant. This challenge is especially common in cases where there are a lot of herdsmen and farmers living in proximity. When the land or crops of a farmer are damaged, during the farmer’s absence it can be difficult to prove whose cattle were responsible for the damage.
Burden of proof
Since the burden of proof is on the Plaintiff it is difficult to establish certain facts like the previous tendency or nature of the animal. Also, negligence on part of the cattle owner in handling his cattle can also be difficult to prove. Such challenges can make it difficult for the Plaintiff in getting justice for his damage.
Procedural difficulties
There are sections in the Cattle Trespass Act that require the person or police officials in charge to seize the cattle from the area where they are found damaging the property or trespassing and take them to the nearest pound. This could impose certain difficulties in carrying the animals to the pound safely and without any unacceptable methods.
Also, as mentioned in the Act, if there is no one claiming the cattle within 7 days after giving notice, the cattle are to be sold by a public auction. There could be a situation where there is difficulty in selling the cattle and in such case, the government would have to incur all costs until they employ a means for its effective disposal.
Animal Protection Laws
There needs to be great care taken to ensure that animal pounds are well-maintained and the animals are taken good care of while they are in pounds. Also, any procedural delays would imply that these animals would have to stay inside the pounds for a longer time. E.g. when the owner argues that there was the wrongful seizure of the cattle, there needs to be an enquiry and verification of the facts and the complaint could cause a huge delay. This implies that the animal would have to stay in an unknown environment for a longer time and this is something that the owner would be apprehensive about.
Suggestions
Insurance claims
In India, cattle are a valuable asset to herdsmen and farmers as well. Many, even depend on a stable income from their cattle. But, since it is not completely in their control there can be a few undesirable consequences that may cost them. Hence, there must be an insurance policy while in possession of the cattle that would cover for any damages covered by the animals whether to a third party or otherwise.
While this suggestion may seem a bit absurd, it is in fact very practical and could benefit the cattle owners a lot if the third party insurance policy for motor vehicles is implemented to cattle as well. Such insurance could cover the different offences of trespass and also the different kinds of damages whether to property, person, crops or livestock of another.
Duties of the Government
The Government must take steps to ensure that the laws regarding cattle trespass are enforced with due care and precision because if the cattle are not managed effectively, it would create a nuisance for the people and also damage the crops, cattle and property of the people. They must also increase the quality of the pounds where animals are kept since most of the pounds are very old being established in British times.
Also, steps could be taken to ensure that amendments are done in the Act and update it according to current needs.
Guidelines for cattle owners
There could be a more uniform and systematic approach toward giving guidelines to the cattle owners. Some of the provisions that could be added in the form of guidelines are- proper fencing for animals who are capable of causing damage and trespass, repair of fences if any of them are broken or damaged which would make it easier for the cattle to stray and cause damage. They could also use proper identification marks to ensure that their cattle are not confused with someone else’s animals.
Conclusion
While the existence of a Cattle Trespass Act in India exists, the state could benefit by renewing it or making certain changes in it. This would help in the Act being up to date with the current situation of cattle trespass in the country and also provide adequate relief to those who are affected by such a form of trespass.
References
- Indiankanoon.com
- https://www.lawreform.ie/_fileupload/consultation%20papers/wpAnimals.htm
- https://www.forests.tn.gov.in/tnforest/app/webroot/img/document/legislations/04_Cattle%20Trespass%20Act%201871.pdf
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