MAKKOLIL KURIAKOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner in W.P.(C) No.20701/2015 is the appellant herein, challenging judgment of the Single Judge dated 2 nd September, 2019, through which the writ petition was dismissed. The respondents herein are the respondents in the writ petition.

(2.) The appellant/writ petitioner is in ownership and possession of about 9 acres of land in Kottiyoor Village which is surrounded in all its three sides by vested forest. According to the petitioner, the property contains various agricultural improvements, for which he had availed loan from the respondents 4 and 5. Complaint is regarding frequent destruction of the agricultural improvements through attack of wild elephants. It is stated that, the petitioner is facing threat of revenue recovery for realisation of the agricultural loans availed from the respondents 4 and 5, which were defaulted repayments. It is stated that, the property in question appears to be the corridor of wild elephants and there was frequent destruction of the agricultural improvements by wild elephants from the year 2009 onwards. It is complained that, the residential house situated in the property as well as the pond constructed for irrigation purposes, were completely destroyed in the attack of wild elephants. According to the petitioner, since 2009 onwards, he could not get any compensation from the forest department because the Village Officer concerned had refused to issue Possession Certificate and to accept the land tax, because of pendency of revenue recovery proceedings initiated at the instance of respondents 4 and 5, against the property. Therefore the petitioner could not make any proper applications seeking compensation under the 'Kerala Rules for Payment of Compensation to Victims of Attack by Wild Animals, 1980'(hereinafter referred to as 'the Rules', for short). Despite requests made by the appellant for acquisition of the property, by including the same in the 'elephant corridor project' and despite recommendations made to that effect by the 3 rd respondent, the Government had not taken any steps for such acquisition, is the allegation. Based on claim made by the petitioner seeking compensation under the Rules, the 3 rd respondent had forwarded a report to the 2 nd respondent, in the year 2013, as evidenced from Ext.P4. It is pointed out that, the 'Section Forest Officer' of Kottiyoor had assessed damages caused to the agricultural crops contained in the property of the petitioner based on the estimation contained in Ext.P5, which is to the extent of Rs.2,82,905/-. The said officer directed the Assistant Engineer of the PWD(Building Section), Iritty to make an estimation with respect to the loss sustained due to the destruction of the residential house and the pond situated in the property. But in Ext.P6, the Assistant Engineer of PWD had reported that only the foundation of the house alone is available at the site and therefore an assessment of the loss in that respect could not be made. However, damages caused to the pond was estimated at Rs.48,609/- on the basis of Exts.P5 and P6. The 3rd respondent recommended to the 2nd respondent for payment of compensation of Rs.2,82,905/- for the loss of agricultural crops and Rs.48,609/- for the damages sustained to the pond, as per Ext.P7. But the first respondent allowed only a total compensation of only Rs.2,23,174/- by reducing the amount assessed for loss of the agricultural crops. Exts.P8 and P9 are orders issued with respect to payment of the said compensation. Being aggrieved by the reduction made with respect to assessment of compensation for agricultural loss, and also being aggrieved by the non-payment of any compensation with respect to the loss of the residential house, the writ petition was filed, seeking direction to respondents 1 to 3 to make enhanced payment of compensation by assessing the actual loss sustained to the petitioner, as claimed in Ext.P10.

(3.) On behalf of the 1st respondent, a detailed counter affidavit was filed in the writ petition. It is stated that the petitioner had filed only a representation before the Hon'ble Minister of Finance, Government of Kerala, in the year 2012. The said representation was forwarded for necessary action to the 2nd respondent, who in turn directed the 3 rd respondent to take steps for payment of compensation under the Rules. Report from the field was received to the effect that the petitioner was sanctioned with compensation till the year 2008- 2009 and thereafter he had not applied for any compensation under the Rules. However, the damages sustained to the crop was assessed and the report was forwarded to the 2 nd respondent. It is on the basis of a direction issued by the 2 nd respondent that the compensation was assessed and paid. It is pointed out that, the petitioner had failed to make the applications for compensation in the prescribed format within the period stipulated under the Rules. However, the authority had noticed that the amount recommended with respect to the years 2011-2012 are not fully allowable under the Rules. Hence the compensation was limited with respect to those years at the maximum amount allowable, at the rate of Rs.50,000/- per year. According to the respondents, the compensation was paid only on the basis of an order issued by the Government, treating the case of the petitioner as a special one and on condoning the delay in submission of the application. It is pointed out that, taking a lenient view, the maximum compensation payable was given to the petitioner. It is contended that the petitioner is not entitled for any compensation over and above the compensation already awarded.