IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25710 of 2007(I)
1. V.M.JOSEPH, S/O.MATHAYI, AGED 58 YEARS,
... Petitioner
Vs
1. ANAPANTHY SERVICE CO-OPERATIVE BANK LTD.
... Respondent
2. CANARA BANK, IRITTY BRANCH,
3. THE FEDERAL BANK LTD. VALLITHODE BRANCH,
4. THE DISTRICT COLLECTOR, KANNUR.
5. THE DIVISIONAL FOREST OFFICER, KANNUR.
6. STATE OF KERALA REPRESENTED BY THE
7. THE SECRETARY TO GOVERNMENT,
For Petitioner :SRI.R.SURENDRAN
For Respondent :SRI.CIBI THOMAS
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :29/05/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) Nos. 25710, 25719, 25723,
25726, 25796, 25818, 25840, 25843,
25844, 25845 & 25857 of 2007
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Dated this, the 29th May, 2009.
J U D G M E N T
All these writ petitions raise the same issue and are therefore
heard and disposed of together by this common judgment.
2. The petitioners claim to be agriculturists who possess land
near forest areas. Since there are no clear protective fence on the
boundary of the forest areas, wild animals wanting into the properties
of the petitioners and destroy the agricultural produces, is the
grievance of the petitioners. For compensating such damages, the
Government has framed a scheme styled as Rules for payment of
compensation to victims attacked by wild animals, 1980 as per which
for loss of human life on account of attack by wild animals, a
maximum amount of Rs. 20,000/-, for permanent incapacitation
Rs. 10,000/- and for loss of crops damages to houses etc., a maximum
of Rs. 10,000/- are prescribed. It is also prescribed therein that such
payment would be made only once in an year. The petitioners are
aggrieved by such restrictive clauses in the said Rules.
2. The petitioners have also availed of loan for their agricultural
operations and since on account of the destruction of the crops by
wild animals, they were unable to pay off the loan amounts, the
concerned bank has initiated recovery proceedings . It is under the
above circumstances, the petitioners have filed these writ petitions
seeking the following reliefs:
“a) Quashing Ext. P2 Rules as unreasonable, arbitrary and
discriminatory.
b) Directing the respondents No. 4 to 7 to accept Ext. P4
estimate and pay the compensation payable to the petitioner on
account of the loss sustained by him due to attack by wild animals
in his properties.
W.P.C. No. 25710/07 etc. -: 2 :-
c) Directing the respondents No. 4 to 7 to pay that part of
such compensation necessary to satisfy the debt due to the
respondents No. 1 to 3 and pay the balance amount to the
petitioner as expeditiously as possible.
d) Directing the respondents No. 1 to 3 to keep all recovery
proceedings against the petitioner in abeyance pending the
decision of the respondents No. 4 to 7.
e) Directing the respondents No. 4 to 7 to construct such
devices along the forest boundary sufficient to prevent the entry of
wild animals to the petitioner’s properties.”
3. According to the petitioners, as assessed by the revenue
authorities themselves, the damages caused to the crops of the
petitioners were far more than the maximum amount payable under
Ext. P2 Rules. They would submit that there is no rationale for
restricting the damages to Rs. 10,000/-. According to them, the wild
animals belong to the Government and for destruction of crops by
wild animals the Government is liable to compensate the petitioners.
Therefore, the Government cannot make rules restricting the
compensation payable at Rs.10,000/- in an year, is the contention
raised by the petitioners. They, therefore, challenges Ext. P2 Rules to
the extent it restricts payment of compensation prescribed therein,
that too, only once in an year.
4. The Government have not chosen to file any counter
affidavit. The concerned bank has filed counter affidavit
controverting the contentions of the petitioners.
5. I have considered the rival contentions in detail.
6. At the outset, I must note that Ext. P2 Rules is not one made
under any enabling provision under any legislation either State or
Central, although the Rules as framed have all trappings of a
subordinate legislation. I specifically asked the learned Government
Pleader as to whether the Rules have been framed pursuant to any
W.P.C. No. 25710/07 etc. -: 3 :-
rule making power under any legislation. The learned Government
Pleader submits that it is only an executive order issued by the
Government under Article 162 of the Constitution of India and not a
subordinate legislation, although, on a reading of Ext. P2 Rules, it
appears so.
7. Since it is only a Government Order, I am of opinion that the
same is only a concession given to victims of attack by wild animals.
The petitioners’ right to claim compensation emanates from Ext. P2
order only. That being so, the petitioners have to accept Ext. P2 as a
whole and cannot claim compensation under the order and challenge
a part of the Government Order restricting compensation. If the
petitioners have claims in tort, their remedy lies in filing a suit for
damages if the Government is liable for such damages. The claim for
damages in tort has to be proved by adducing evidence regarding the
negligence or vicarious liability and quantum of damages. Such an
exercise cannot be taken up and decided in a writ petition. Therefore,
without prejudice to such right, the writ petitions are dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/