M.A.STEPHEN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner and his brother jointly own and possess 5 Acres and 3 cents of land in Sy. No. 2- 73/1A in Panathady Village, Hosdurg Taluk, Kasargod District, adjoined by a forest area coming under the Kanhangad Range, Kasargod Forest Division. As there is no clear protective fencing along the boundary of the forest area, wild animals frequently wander into the petitioner's property and destroy his agricultural produce. In 2012, the petitioner's property was attacked by a herd of wild elephants leading to the destruction of crops.

(2.) According to the petitioner, the monetary damage alleged against him is Rs.1,000.00 whereas the damage caused to him amounts to Rs.8,50,000.00. The petitioner contended that it is the duty of the Government to confine wild animals within the forest by constructing power fencing or trenches along the forest fringe areas. Though Rule 3 of the Rules entitles a person to compensation if he or she has sustained injury or suffered loss to life or property on account of wild animals, Rule 5(a) of the said Rules disentitles a person from receiving compensation if he or she has been convicted of, or is involved in, an offence under the Wild Life (Protection) Act, 1972, or the Kerala Forest Act. It is contended that the offence alleged against the petitioner is not grave, and a complete denial of compensation for such offences, without any distinction being made regarding the gravity of the alleged offence, is irrational. The petitioner further contends that, as per the amendment made to the Rules, Rule 3 (a) (3) limits compensation for loss or damage to property such as houses, huts, crops, cattle, etc., to a maximum of Rs.75,000.00. The petitioner submits that this limitation is illegal and arbitrary. Accordingly, the petitioner has filed this writ petition challenging Ext. P4 and seeking a declaration that the incorporation of the provisions in Rule 5(a) of the Rules, which disentitle a person from compensation due to an allegation of involvement in an offence under the Kerala Forest Act, without distinguishing between petty and major offences, is illegal and unconstitutional. Direction is also sought to the Government to effect amendments to the Rules incorporating necessary provisions to award sufficient and adequate compensation to meet the actual loss suffered by aggrieved parties. The petitioner has also sought for a direction to the Government to amend the Rules, marking clear distinction between forest offences of serious nature and that of petty forest offences so that the persons allegedly involved in petty forest offences shall not be treated on par with persons alleged to be involved in very serious offences under the Kerala Forest Act. It is also prayed to direct the respondents to grant adequate compensation for the loss sustained by the petitioner due to the attack of wild animals from nearby forest area, on the basis of Ext. P2 application.

(3.) A counter affidavit has been filed by the 2nd respondent wherein it is stated that Ext. P2 application has been rejected since the petitioner is not eligible for compensation under Rule 5(a) of the Rules. It is stated that on field verification, it is understood that the loss caused to the petitioner by wild animal attack was only Rs.46,050.00 as against his claim for Rs.8,50,000.00. It is further stated that the petitioner is an accused in an offence registered in Kanhangad Forest Range as O.R. No.14/11 under Sec. 27(1),(e), (iii) and (iv) of the Kerala Forest Act, 1961 for illegally cutting and collecting 35 number of poles of Irul, Terminalia, 45 number of bamboos and 100 number of Erankole from Mannarkayam vested forest. The loss sustained by the Government was initially assessed at Rs.3,000.00, but it was later revised to Rs.1,000.00. It is stated that Rule 5(a) of the Rules provides that persons either convicted or involved in an offence connected with the Kerala Forest Act or the Wild Life (Protection) Act, shall not be eligible for compensation. Further, Rule 4(c) of the Rules mandates that the Forest Range Officer, while recommending the application to the Divisional Forest Officer, should bear in mind the reservations in Rule 5 of the Rules. Rule 4(d) of the Rules mandates that the Divisional Forest Officer, while finalizing the application for compensation recommended by the Range Officer, should bear in mind the reservations under Rule 5. Accordingly, Ext. P2 application was rejected. It is stated that, though the direct loss assessed is Rs.1,000.00, the indirect loss sustained to the forest echo system by way of cutting and removal of the trees and bamboos would amount to several multiples and cannot be quantified in terms of money. It is also stated that the State Government has taken measures for power fencing, walls, trenches, live fencing in forest fringe areas to mitigate the conflict between men and wild animals. It is further stated that the Rules are being amended from time to time enhancing the amount of compensation payable.