IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 WP(C).No. 25710 of 2007(I) ------------------------------------- PETITIONER: ------------------- V.M.JOSEPH, S/O.MATHAYI, AGED 58 YEARS, AGRICULTURIST, VATTUKULATHIL HOUSE, AYYANKUNNU AMSOM DESOM, P.O.EDAPUZHA, KANNUR DISTRICT. BY ADV. MR.R.SURENDRAN. RESPONDENTS: ------------------------ 1. ANAPANTHY SERVICE CO-OPERATIVE BANK LTD., ANAPANTHY, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. 2. CANARA BANK, IRITTY BRANCH, P.O.IRITTY, KANNUR DISTRICT, REPRESENTED BY ITS MANAGER. 3. THE FEDERAL BANK LTD., VALLITHODE BRANCH, KANNUR DISTRICT, REPRESENTED BY ITS MANAGER. 4. THE DISTRICT COLLECTOR, KANNUR. 5. THE DIVISIONAL FOREST OFFICER, KANNUR. 6. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 7. THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. MR.CIBI THOMAS, R2 BY ADV. MR.V.B.HARI NARAYANAN, R3 BY ADV. MR.GEORGE VARGHESE (MANACHIRACKEL), R4 TO R7 BY SPL. GOVT. PLEADER (FOREST) MR. P.M. POULOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2009, ALONG WITH W.P.(C). NO. 25719/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25710/2007-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RESOLUTION DTD. 24/09/2003 PASSED BY THE AYYANKUNNU GRAMA PANCHAYAT. EXT.P.2: COPY OF THE RULES FOR COMPENSATION TO VICTIMS OF ATTACK BY WILD ANIMALS 1980 AS AMENDED AS PER G.O.(RT).NO.430/99 F& WLD DTD. 30/10/1999. EXT.P.3: COPY OF THE JUDGEMENT IN W.P.(C).NO.37048/2003 DTD. 01/03/2004. EXT.P.4: COPY OF THE REPORT OF THE TAHSILDAR, THALASSERY. EXT.P.5: COPY OF THE LETTER DTD. 12/11/2004 ISSUED BY THE D.F.O TO THE DISTRICT COLLECTOR. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 25710, 25719, 25723, 25726, 25796, 25818, 25840, 25843, 25844, 25845 & 25857 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= 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/