Kerala High Court
M.A.Stephen vs State Of Kerala on 2 May, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
WP(C) NO. 29653 of 2013 : 1 :
2025:KER:33415
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 2ND DAY OF MAY 2025 / 12TH VAISAKHA, 1947
WP(C) NO. 29653 OF 2013
PETITIONER:
M.A.STEPHEN, S/O. ABRAHAM,
MALAMPILPATHIKKAL HOUSE, ARIPROD,
PANATHOOR P.O., RAJAPURAM P.O.,
KASARAGOD DISTRICT.
BY ADVS.
SRI.T.V.GEORGE
SRI.JIMMY GEORGE THADATHIL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT FOREST OFFICER
KASARAGO - 671121
3 RANGE OFFICER
KANHANGAD.- 671531
BY ADV SRI.T.P.SAJAN, SPL. G.P. FOR FOREST
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 29653 of 2013 : 2 :
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JUDGMENT
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.
According to the petitioner, the elephants damaged
1018 banana plants, 70 rubber trees aged 4 years, 5
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coconut trees, 30 palm trees, 450 metres barbwire,
450 metres of solar fencing etc., causing a monetary
loss of Rs.8,50,000/-. The petitioner, therefore, filed
Ext. P2 application under the Kerala Rules For
Payment Of Compensation To Victims Of Attack By
Wild Animals, 1980 (hereinafter referred to as 'the
Rules' for short) before the District Forest Officer,
the 2nd respondent claiming compensation of
Rs.8,50,000/-. However, the said application was
rejected by the 2nd respondent by Ext. P4 order
stating that since the petitioner and his brother are
involved in a forest offence registered as O.R.
No.14/11 on 22.12.2011, they are not entitled for
compensation as per Rule 5(a) of the Rules. The
petitioner sought details of the forest case through
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Ext. P5 query, and by Ext. P6, the Assistant Public
Information Officer, Kanhangad Range informed the
petitioner that a case had been registered against
him and his brother for cutting tweaks and bamboos
for the purpose of building a fence, and that the
monetary damage was assessed at Rs.1,000/- as per
the mahazar.
2. According to the petitioner, the monetary
damage alleged against him is Rs. 1,000/- whereas
the damage caused to him amounts to Rs. 8,50,000/-.
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
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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/-. The petitioner submits that
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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
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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 2 nd
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
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understood that the loss caused to the petitioner by
wild animal attack was only Rs.46,050/- as against his
claim for Rs.8,50,000/-. 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
Section 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/-,
but it was later revised to Rs. 1,000/-. 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)
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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/-, 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
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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.
4. Heard Sri. T.V. George, the learned counsel
for the petitioner and Sri. T.P. Sajan, the learned
Special Government Pleader, Forest.
5. Sri. T.V. George would contend that the
petitioner's property adjoins and abuts the forest,
and since no proper protective fencing has been
constructed by the Forest Department along the
forest boundary, wild animals wander into the
petitioner's property and destroy agricultural
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produce, which is the only source of his livelihood. It
is contended that it is the duty of the Government to
confine wild animals within the forest by constructing
power fences or trenches in the forest fringe areas.
Had such preventive measures been taken by the
Government, no damage would have been caused to
the petitioner's crops. Since the Government failed to
discharge its duty, the petitioner was compelled to
erect fencing along the boundary of his property
separating it from the forest land to protect his crops
for which he was charged under the provisions of the
Kerala Forest Act, 1961. By Ext. P3 certificate issued
by the Agricultural Officer, the petitioner produced
proof before the 2nd respondent that the petitioner
has not been given any compensation by the
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Agricultural Department. Nevertheless, the 2 nd
respondent rejected the application of the petitioner
for the sole reason that a case has been registered
under the Kerala Forest Act, 1961 for illicit cutting
and collection of tweaks and bamboos from forest
land. While the monetary loss caused to the
Government is only Rs.1,000/-, the loss caused to the
petitioner due to attack by wild animals is
Rs.8,50,000/-. However, as per the Rules, the
maximum amount of compensation payable is only
Rs.75,000/-, which is inadequate and inappropriate.
Sri. George submits that it is only because of the
dereliction of duty on the part of the Forest
Department that the petitioner had suffered the loss
of Rs.8,50,000/-. He refers to paragraphs 6 and 7 of
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the counter affidavit filed by the 2nd respondent and
submits that the respondent has admitted in the
affidavit that it is the duty of the Government and the
Forest Department to confine wild animals to the
forest. Referring to Rule 5(a) of the Rules, it is
contended that the said provision inasmuch as it
denies compensation to agriculturists, who are
booked under petty forest offences under the Kerala
Forest Act, 1961 is a clear violation of the
fundamental rights guaranteed under Articles 14,
19(1)(g) and 38(1) of the Constitution of India. He
also relied on the decision in M.C. Mehta and
another v. Union of India [1987 (1) SCC 395]
wherein the Constitution Bench of the Hon'ble
Supreme Court, while dealing with enforcement of
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the fundamental rights enshrined under Article 21 of
the Constitution, held that where an enterprise is
engaged in a hazardous or inherently dangerous
activity and results harm to anyone, on account of an
accident in the operation of such hazardous or
dangerous activity, the enterprise is strictly and
absolutely liable to compensate all those who are
affected by the accident and such liability is not
subject to any of the exceptions which operate viz-a-
viz the tortuous principle of strict liability under the
Rule in Rylands v. Fletcher. Sri. George contends
that Rule 5(a) of the Rules is unreasonable and
against the intent, purport and the very spirit of
legislation of compensation rules. He submits that
the invocation of Rule 5(a) in petty forest offences,
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such as in the petitioner's case, would defeat the
object and purpose of the Act. Finally, it is contended
that the Rules provide for the assessment of
compensation by Forest Officers, who have no
expertise in assessing the loss caused to agricultural
produce, and therefore, the loss assessed by the
Forest Range Officer in Ext. R2(a) cannot be relied
upon. Sri. George also submits that the case charged
against the petitioner has been compounded under
Section 68 of the Kerala Forest Act as per order
dated 25.10.2016.
6. Sri. Sajan, relying upon the counter affidavit
filed by the 2nd respondent would submit that the
petitioner is an accused in a forest case charged
under Section 27(1)(e)(iii) and (iv) of the Kerala
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Forest Act, 1961 and in terms of Rule 5(a) of the
Rules, the petitioner is not entitled for compensation.
He refers to Section 2(e) of the Kerala Forest Act,
1961, which defines 'forest offence' as an offence
punishable under the Act or any rule made
thereunder, and submits that the Act does not make
any distinction between petty forest offences and
major forest offences, and that even involvement in a
forest offence is sufficient to disentitle a person from
claiming compensation. Sri. Sajan refers to the
decision of this Court in Majeed v. State of Kerala
[1988 (1) KLT 529] wherein it has been held that, in
forest offence, it is not the value of the article
involved, but the nature of the offence that should be
considered. The Forest Act is a piece of legislation in
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this direction and it makes destruction of forests a
serious offence. Sri. Sajan also relied on the decision
of this Court in Sivaraman and others v. State of
Kerala [2012 (2) KHC 416] and contended that
showing leniency to trespassers and poachers into
the forest is not proper or conducive . He further
submits that no grounds have been made out to
interfere with Rule 5(a) or with Ext. P4 order.
7. The provisions of the Kerala Rules For
Payment Of Compensation To Victims Of Attack By
Wild Animals, 1980, as they stood then, to the extent
relevant for the purposes of this case, are extracted
hereunder:
"Rule 3. (a) Compensation shall be paid
to those who sustained injury or loss to life
and property on account of attack by wild
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animals in the manner prescribed below
on the basis of the G.O. (Ms.) No.
256/80/AD, dated 15th July 1980. Every
person who is incapacitated, injured or
suffered losses only will be compensated
under the scheme.
(1). Loss to human life.- An amount of Rs.
5000 (Rs. five thousand only) shall be paid
to the legal heirs of the deceased, if
human life is lost on account of attack by
wild animals.
(2). Incapacitated permanently.- An
amount upto Rs. 25,000 (Rs. Twenty five
thousand only) shall be paid to the persons
who become permanently incapacitated on
account of attack by wild animals.
(3). Loss of cattle, crops, damages to
houses, huts etc.- The compensation for
the loss or damage to property such as
houses, huts, crops, cattle etc. shall be
limited to 75 per cent of the loss, subject
to a maximum of Rs. 10,000 (Rs. Ten
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thousand only)
(4). Injuries caused to persons.- When an
injury is caused to a person by the attack
of wild animals, compensation payable
shall be up to Rs. 5,000 (Rupees Five
thousand only) on the basis of the
seriousness of the injury.
b) Compensation shall be paid only in
genuine cases after satisfying on the bona
fide of the claim and extent of
injury/damage caused.
Rule 4. Award of compensation.-
(a) The application for compensation with
necessary details such as place, time,
nature of injury extent of damage, loss
etc. shall be addressed to the Divisional
Forest Officer/ Game Warden/Wildlife
Preservation Officer who has jurisdiction
over the area.
(b) The party desirous of applying for
compensation shall make his/her
application in the prescribed form
(Appendix 1) within a period of three
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months from the date of occurrence of
the incident by the victim or in the case
of death by the legal heirs with necessary
certificates in support of the claim to the
Forest Range Officer or the Assistant
Wildlife Preservation Officer, who has
jurisdiction over the area for onward
transmission to the Divisional Forest
Officer/Game Warden/Wildlife
Preservation Officer concerned.
(c) The Forest Range Officer/Assistant
Game Warden/Assistant Wildlife
Preservation Officer on receipt of
application shall conduct enquiry
personally and forward the application
with his recommendations to the
Divisional Forest Officer/Game
Warden/Wildlife Preservation Officer
who has jurisdiction over the area. The
Enquiry Officers should bear in mind the
reservations in Rule 5.
(d) The Divisional Forest Officer/Game
Warden/Wildlife Preservation Officer
shall after such further enquiry as found
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necessary pass an order within 15 days
of receipt of recommendation from the
Range Officer. The Enquiry Officers
should bear in mind the reservations in
Rule 5.
(e) The legal heirs of the victim who
claim compensation for the loss of life
shall be required to produce heirship
certificate during the course of enquiry
on the claim for compensation.
(f) A person who has become
permanently incapacitated or injured on
account of attack by wild animals shall
produce a Medical Certificate from a
Medical Officer not below the rank of
Civil Surgeon in Kerala Government
Service in support of his claim.
(g) The payment of compensation under
rule 3 shall be made only once in a year
to a particular individual.
Rule 5. Persons not eligible for
compensation.-
(a) Persons either convicted or involved
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in an offence connected with Wildlife
(Protection) Act, 1972 or Kerala Forest
Act shall not be eligible for
compensation.
(b) No compensation shall be paid to
the encroachers of Forest land and also
in cases where loss or injury is
sustained attempting to smuggle forest
wealth or enter reserve forests
premises without authorisation. Loss to
crops grown or improvements made in
Forest land will not be compensated
under the rules.
(c) No one shall be eligible for any
compensation for loss of crop if a gun
licence is provided, to the owner of the
land for the protection of the crop.
(d) No compensation shall be paid to
victims or cases or incidents caused by
wild animals kept in captivity."
8. The protection of the fundamental rights of
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the citizens of the Country is the constitutionally
mandated responsibility of the State. Article 48-A of
Part IV of the Constitution of India, under the
Directive Principles of State Policy, envisages that
the State shall endeavour to protect and safeguard
the wildlife of the Country. It is necessary to maintain
a balance between the protection of citizens'
fundamental rights and the duty of the State to
safeguard wildlife. Human-wildlife conflict arises
when interactions between humans and wildlife
result in adverse outcomes, such as loss of property,
livelihoods, or even human life. One of the most
evident consequences of human-wildlife conflict is
the financial loss suffered by affected individuals. It
is the duty of the State to take measures to mitigate
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human-wildlife conflict. The State has a duty to
ensure that wild animals do not trespass into human
habitations or agricultural properties. It is also
incumbent upon the State to install appropriate
fencing around reserve forests, making it difficult for
wild animals to enter and wander into private
properties located near forest areas. In State of
Kerala v. George V.V. and Others [2017 (3) KHC
882: ILR 2017 (3) Ker.523], while considering the
entitlement of compensation for damage to crops by
attack of wild animals, this Court observed as
follows:
"11. This is also a case wherein the
principle of strict liability is squarely
applicable. Reserve forests are, no
doubt, the property of the State. The
State has been protecting wildlife. As
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per Sections 9 and 11 of the Wild Life
Protection Act, 1972, nobody is
permitted to carry out hunting of wild
animals. Even for self defence, killing
of wild animals is permitted only in
case of attack on persons, and not on
their properties. Therefore, when
even the right of self defence to
killing wild animals for avoiding loss
or damage to property in the attack of
wild animals is totally prohibited by
the Wild Life Protection Act, 1972, it
is the duty of the State to see that the
properties of persons should be
protected from the attack of wild
animals.
12. It is the duty of the State to install
necessary fencing to the reserve
forest for making it impossible for the
wild animals to enter and wander in
the private properties situated near
the reserve forest. According to the
learned Special Government Pleader,
the plaintiff has not pleaded any
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specific negligence from the part of
the State or its officers in the alleged
loss sustained to the rubber trees or
arecanut trees of the plaintiff. As I
have stated above, even without a
plea of negligence, the State is bound
to compensate such persons when the
principle of strict liability is
applicable, especially when even self
defence has not been permitted to
preserve and protect one's property
from the attack of wild animals. It is
the duty of the State to ensure that
such wild animals do not trespass into
human habitation or agricultural
properties of other persons."
9. One of the essential steps to mitigate harm to
both humans and wildlife is the provision of adequate
compensation by the State to victims, in addition to
other preventive measures. The Kerala Rules For
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Payment Of Compensation To Victims Of Attack By
Wild Animals, 1980, has been framed with a view to
providing assistance to affected parties for death,
injury, and loss of crops, houses, and other property
caused by attacks by wild animals. Rule 5(a) of the
Rules, as it originally stood, provides that persons
who are either convicted of or involved in an offence
under the Wildlife (Protection) Act, 1972, or the
Kerala Forest Act shall not be eligible for
compensation. Rule 5(a) was substituted by G.O. (Ms)
No. 17/2018/F&WLD dated 05.04.2018, and the
amended Rule reads to the following effect:
"A person who suffers loss of life due
to a wildlife attack shall not be eligible
for compensation if he/she has been
convicted of or is involved in any
offence under the Wildlife (Protection)
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Act, 1972, or the Kerala Forest Act.
However, persons who are not
habitual offenders, but who were
involved in forest offences and die due
to a wildlife attack, not during the
commission of such offence, shall be
eligible for compensation, provided
that the officials of the concerned
circle investigate the matter and
determine eligibility accordingly."
10. The offence in question occurred prior to the
amendment of Rule 5(a) by G.O. (Ms) No.
17/2018/F&WLD dated 05.04.2018. The amended
Rule 5(a) introduces a substantive change in the
eligibility criteria for compensation by carving out an
exception in favour of non-habitual offenders.
However, the Government Order amending the Rule
does not indicate any retrospective application.
11. It is not disputed by the respondents that the
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petitioner's agricultural crops were destroyed by wild
elephants. The crops constituted the petitioner's
livelihood and the fruits of his labour, which have
been devastated by wild animals. O.R. No.14/11 has
been registered against the petitioner for allegedly
cutting, collecting, and removing tweaks and
bamboos for the purpose of constructing protective
fencing along the boundary of his property, which
abuts forest land. Undoubtedly, the removal of such
tweaks and bamboos from a reserved forest, if
proved, would attract offences under Section 27(1)(e)
(iii) and (iv) of the Kerala Forest Act.
12. As stated, it is the duty of the State to install
appropriate fencing around reserve forests, making it
difficult for wild animals to enter and wander into
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private properties located near forest areas. The
State has failed in its duty to implement preventive
measures such as fencing to prevent wild animals
entering into the property of the petitioner and
damaging the crops. As per the dictum laid down by
this Court in George V.V. (supra), State is bound to
compensate such persons. The 2nd respondent, being
a statutory authority, was not empowered to consider
these aspects, as Rule 5(a), as it then stood,
disqualified persons involved in forest offences from
receiving compensation. However, the rule based bar
cannot be a bar for the Government to consider the
case of the petitioner for compensation. Having
regard to the petitioner's grievance and the larger
issue concerning human-wildlife conflict
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compensation, this Court is of the view that while no
Mandamus can be issued to compel the State to
frame or amend rules, the petitioner shall be
permitted to submit a detailed representation to the
Government regarding his grievances. In the facts
and circumstances of the case, it shall be open to the
petitioner to submit a suitable representation before
the Government, highlighting his grievances
regarding the fairness of the rules, the compensation
payable to him for loss of crops, and for such other
reliefs. If such a representation is filed within one
month from today, the 1st respondent shall consider
the same and pass appropriate orders, taking into
account the observations made herein and all other
relevant aspects, within two months from the date of
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receipt of the representation, after affording the
petitioner an opportunity of hearing.
The writ petition is disposed of as above.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
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APPENDIX
PETITIONER EXHIBITS
P1 : COPY OF THE LAND TAX PAID RECEIPT FOR THE PERIOD 2013-
14.
P2 : COPY OF THE APPLICATION DTD.10.9.12 BEFORE THE 2ND
RESPONDENT PREFERRRED BY THE PETITIONER.
P3 : COPY OF THE CERTIFICATE DATED NIL ISSUED BY THE
AGRICULTURAL OFFICER, PANATHADY.
P4 : COPY OF DENIAL ORDER DTD.3.5.2013 ISSUED BY THE 2ND
RESPONDENT.
P5 : COPY OF QUERY DTD.5.11.2013 UNDER RIGHT TO INFORMATION
ACT.
P6 : COPY OF COMMUNICATION FROM THE ASST. PUBLIC
INFORMATION OFFICER DTD.7.11.2013.
P7 : COPY OF THE KERALA RULES FOR PAYMENT OF COMPENSATION
TO VICTIMS OF ATTACK BY WILD ANIMALS, 1980 ALONG WITH THE
AMENDMENTS MADE.
P7 : TRUE COPY OF GOVERNMENT OFER NO.GO(MS)
NO.32/2013/F&WLD DTD.22.3.2013
RESPONDENTS EXTS:
EXT.R2(A) : TRUE COPY OF THE VERIFICATION REPORT OF THE
RANGE FOREST OFFICER, KANHANGAD
EXT.R2(B) : TRUE COPY OF MAHAZAR DT.19.12.2011
EXT.R2(C) : TRUE COPY OF MAHAZAR DT.22.12.2011
