2015(6) ALL MR 722
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

B. P. DHARMADHIKARI AND S. B. SHUKRE, JJ.

Smt. Vimal Haribhau Naik Vs. The State of Maharashtra & Ors.

Writ Petition No.2677 of 2013

5th May, 2015.

Petitioner Counsel: Shri KUNAL NALAMWAR
Respondent Counsel: Smt. B.H. DANGRE

(A) Constitution of India, Art.14 - Wild Life (Protection) Act (1972) - Reasonable classification - Test of - GR dt.2/7/2010 for award of compensation in respect of damage caused to fruit bearing trees by wild animals - GR covers only two kinds of wild animal i.e. wild elephants and Indian bison - Blue bulls and other wild animals not covered in respect of damaged trees but only in respect of damaged crops - Held, said GR is based on irrational classification - Such classification bears no reasonable relation with the object sought to be achieved by said GR - It violates principles of equality under Art.14 of Constitution. (Paras 12, 13, 14)

(B) Interpretation of GR - Rule against supplying casus omissus - Held, rigours of said rule is diluted when it comes to interpretation of Govt. resolutions, circulars and instructions - Omissions noticed in GR dt.2/7/2010 to provide for compensation to farmers whose fruit bearing trees are damaged by wild animals other than wild elephants and Indian bison - Same was supplied by reading protected animal, blue bulls into said GR. AIR 2002 SC 1334 Ref. to. (Paras 16, 17, 18, 19, 20)

(C) Constitution of India, Art.51A(g) - Wild Life (Protection) Act (1972) - Compensation for loss caused by wild animal - Rate of compensation - 100 orange trees of petitioner damaged by blue bulls - Compensation would be payable in terms of Part-B of GR dt.2/7/2010 and rate of compensation would be of category "other fruit bearing trees" as orange trees are not specifically referred - Subsequent GR dt.5/9/2013 provides for compensation @ Rs. 250/- per tree - Not applicable, incident in question was of year 2012, much before issuance of said GR - Petitioner is entitled to compensation at @ Rs.200/- per tree. (Para 21)

Cases Cited:
Baburao Abaji Aglawe Vs. State of Maharashtra & Ors., 2012(3) ALL MR 646=WP No.5764/2011, Dt.15/3/2012 [Para 8,15,17]
Padmasundara Rao (dead) & Ors. Vs. State of T. N. and Ors., AIR 2002 SC 1334 [Para 16]


JUDGMENT

S. B. SHUKRE, J. :- Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent of learned Counsel for petitioner and learned Government Pleader and learned Counsel for the respondents.

3. By this petition, the petitioner has sought redressal of her grievance that she has been treated differentially by denying payment of compensation to her for the loss of her orange trees caused by crop raiding wild animals, namely ranrohe or blue-bulls.

4. It is the case of the petitioner that in the year 2010, she had planted 125 samplings of orange trees in her agricultural field bearing survey No.424 situated at mouza Mandvai, taluka Kalmeshwar, district Nagpur. The petitioner had nurtured these trees with great care and those trees had shown a healthy growth by April, 2012. According to the petitioner the orange trees would have blossomed about three years thereafter. The petitioner had invested amount of about Rs.40,000/- for planting and nurturing the trees. During the night intervening the dates of 7th and 8th April, 2012, there was, however, an unfortunate incident wherein a herd of blue-bulls descended upon the orange plantation and browsed the tender leaves, quivered and broke their branches thereby substantially destroying the plantation. The investment of the petitioner thus went waste and also the prospect of earning good profit about three years after the year 2012 became dim.

5. The petitioner made complaint to respondent No.4 on 09/4/2012 and claimed compensation in terms of Government Resolution dated 02/7/2010. The petitioner was asked to resubmit the application together with all the necessary documents. The petitioner complied with the direction on 25/4/2012 by applying afresh for grant of compensation together with requisite documents. A panchanama of the destruction of orange trees was drawn on 03/5/2012 by respondent No.4. The panchanama noted damage to 100 orange trees out of 125 trees and recommended payment of compensation of Rs.8,000/- @ Rs.80 per tree. A check list as required by G. R. dated 02/7/2010 in respect of the assessment of damage made in the panchanama was also prepared and finally payment of compensation of Rs.6,000/- was recommended. Accordingly, respondent No.4 sent his report together with the entire record on 18/6/2012 to respondent No.3 for taking of necessary action in the matter. On 06/8/2012, respondent No.3 rejected the proposal on the ground that there was no provision in the Government Resolution dated 02/7/2010 for payment of compensation for the damage caused to fruit bearing trees by such wild animals as blue-bulls or wild-boars.

6. The petitioner, though disappointed, pursued the matter with higher authorities but could get no response from them. In a communication dated 29/12/2012 addressed to Personal Secretary, Minister of Forests, in response to query raised by Hon'ble Minister, it was informed by the respondents that since there was no provision in the G. R. dated 02/7/2010 for payment of compensation for the loss caused to fruit bearing trees by such wild animals as blue-bulls, deers, wild-boars, etc., payment of compensation in the instant case could not be allowed. It was also informed that because of such lacuna, a proposal for making provision for payment of compensation in such cases had been sent by the Forest Department to the Ministry. It was further informed that compensation in the instant case could be allowed only after receipt of the modified Government Resolution. Having been left with no option, the petitioner has knocked at the doors of this Court for justice.

7. We have heard Shri Kunal Nalamwar, learned Counsel for the petitioner and Mrs. Bharti Dangre, learned Government Pleader for respondent No.1 and also Special Counsel for the Forest Department.

8. Shri Nalamwar, learned Counsel for the petitioner has submitted that the G.R. dated 02/7/2010, which makes no provision for payment of compensation for the loss caused to orange trees, an important cash crop of Vidarbha region, by a blue-bull and which allows payment of compensation for the loss caused to fruit bearing trees by wild elephants and Indian bison is arbitrary. He submits that this resolution makes an unreasonable classification between loss suffered from attack of wild elephants and Indian bison and loss caused by other wild animals. He submits that when the object of the resolution is to make good the loss to the horticulturists, which is caused by wild animals, it is neither permissible nor reasonable to allow payment of compensation for loss caused to orchards by only some of the wild animals and disallow it in other cases. He submits that even other wild animals like deer, blue-bulls, wild boars and so on which are protected under the Wild Life (Protection) Act, 1972, are also capable of causing destruction to the fruit bearing trees and, therefore, making distinction between wild elephants and Indian bison on the one hand and other protected wild animals on the other hand is arbitrary and amounts to treating equals unequally. He further submits, in the case of Baburao Abaji Aglawe Vs. The State of Maharashtra & others (Writ Petition No. 5764 of 2011) : [2012(3) ALL MR 646] a similar issue was considered by the Division Bench of this Court and this Court had directed the State Government to make payment of compensation for the loss caused to the crop by a tiger.

9. Learned Counsel for the petitioner has also submitted that subsequently the Government of Maharashtra has issued a resolution dated 05/9/2013 making amendments to to G. R. dated 02/7/2010. He submits that under the new G.R. the scheme of compensation has been made applicable to the cases wherein loss is caused to fruit bearing trees not only by wild elephants and Indian bison but also by such wild animals as wild boars, blue bulls, monkeys and langoors. He further submits that now benefit of G. R. dated 05/9/2013 can also be made available to the petitioner.

10. Smt. Dangre, learned Government Pleader and Counsel appearing for the respondents submits that the policy of the Government is very clear and it has been delineated in the G.R. dated 02/7/2010. She submits that according to this G. R., case of the petitioner has been found to be not admissible for payment of compensation and, therefore, the respondents have rightly rejected the claim of the petitioner. She further submits that G. R. dated 02/7/2010 cannot be said to be arbitrary and unreasonable as the classification made thereunder is based upon the assessment made by the Forest Department of the behaviour of wild animals. She submits that since wild animals such as wild elephants and Indian bison have been mostly found to be causing damage to orchards or fruit bearing trees, the compensation has been made admissible only in cases where the damage has been caused by these wild animals. She further submits that later on, when it was found that other animals such as deer, blue-bulls and so on were also found to be having a tendency to stray outside the forest and plunder the plantations, orchards and groves, a new resolution including these animals has been issued by the Government. She submits that this G. R. having been issued on 05/9/2013, would have prospective application and, therefore, the petitioner would not be entitled to receive any compensation in the present case.

11. A short question involved in this petition is; as to whether the petitioner is entitled to receive compensation for the loss caused to her orange trees by a wild animal, the blue-bull, a protected animal under the provisions of Wild Life (Protection) Act, 1972 under the scheme of compensation framed by the Government in the interest of affected farmers/horticulturists?

12. In order to find out an answer, it would be necessary to examine the Government Resolution dated 02/7/2010. The resolution is in two parts. The first part deals with loss of crops caused by such wild animals as wild boar, deer, blue-bull, Indian bison, monkey and wild elephant and provides for compensation in a graded manner subject to ceiling of Rs.15,000/-. However, in case of loss to sugarcane crop, compensation has been fixed to be @ Rs.400/- per metric tonne of the crop damaged. Second part relates to compensation payable on account of loss to fruit bearing trees caused by only two kinds of wild animals namely; wild elephant and Indian bison. This part does not contemplate payment of compensation for loss of fruit bearing trees occasioned through attack of blue-bulls. So far as the petitioner is concerned, her case would not fall in first part of the resolution dated 02/7/2010 as the loss suffered by her is not to the crops but to fruit bearing trees i.e. orange trees. Though second part of this resolution provides for compensation for loss of other fruit bearing trees which would include orange trees at the rate of Rs.200/- per tree, petitioner's case would not be covered even by the second part as compensation provided thereunder is payable only when the loss is caused by only two kinds of wild animals, i.e. wild elephants and Indian bison. It does not allow payment of compensation when fruit bearing trees are damaged by other wild animals including blue bulls.

13. The above discussion would show that the G. R. dated 02/7/2010 while allowing payment of compensation for damage to crops by greater variety of wild animals acknowledges the fact that the wild animals specified therein, in particular the blue bull, is capable of destroying crops on the one hand, very same G.R. does not accept the same fact when it comes to payment of compensation for loss of fruit bearing tees caused by the blue bull. If blue bull can damage crop, one cannot understand why it would not damage the orange trees as well. The blue bull is a herbivore, just like wild elephant and Indian bison and therefore cannot be seen as showing a different behaviourial pattern in the sense that it would feed only on grasses and foliage but not the fruit bearing trees. The fact that blue bulls exhibit same tendencies as elephants and bison has been accepted by the Government and it is evident from it's subsequent G. R. dated 05/9/2013 which takes into account loss caused to crops as well as fruit bearing trees by not only elephants and bison but also by other animals including blue bull. The argument of learned Government Pleader and Special Counsel for the respondents regarding different behaviourial pattern of blue bull, therefore, would have to be rejected. This inevitably leads to the conclusion that G. R. dated 02/7/2010 violates principle of equality enshrined in Article 14 of the Constitution of India by resorting to irrational classification.

14. The irrational classification in the G. R. dated 02/7/2010 can be further seen by examining it's nexus with the object sought to be achieved by it. The object of the scheme of compensation formulated under this resolution, as seen from its introductory part, is to make good the loss of standing crops and the fruit bearing trees suffered by the farmers on account of raiding of crops and trees by the wild animals. When such an object has been expounded, it makes no sense to consider loss caused by only a few species of wild animals and ignore the loss caused by other species of wild animals for the purpose of payment of compensation to the affected persons. After all, wild animals specified in the Schedules to the Wild Life (Protection) Act, 1972 are protected animals. Therefore, there is no rationale in classifying loss occasioned by farmers or orchard owners into two categories and allow payment of compensation for one category and disallow it for the other category. Such classification would bear no reasonable relation with the object sought to be achieved by the G.R. dated 02/7/2010. Blue bull is admittedly a herbivorous animal just like the wild elephant and Indian bison and, therefore, blue bull cannot be held to be constituting a class apart from wild elephants and bison for the purposes of causing damage to fruit bearing trees and payment of compensation for the damage caused by it. It is obvious that G. R. dated 02/7/2010 insofar as it relates to payment of compensation for loss caused to fruit bearing trees, commits breach of equality principle and violates Article 14 of the Constitution of India. The G. R. dated 02/7/2010 is, therefore, bad in law to the extent it makes an unreasonable classification.

15. In the case of Baburao Abaji Aglawe Vs. The State of Maharashtra & others in Writ Petition No. 5764 of 2011 decided on 15/3/2012 : [2012(3) ALL MR 646], the Division Bench of this Court has noted the fact that even the tigers can cause loss to the standing crops and, therefore, held that exclusion of tiger from the G. R. was not reasonable and directed the Government to pay compensation for the loss caused to banana trees by tiger.

16. The unreasonableness of the classification made in the resolution dated 02/7/2010 seems to have been realized by the Government as subsequently it made amends and issued a new resolution dated 05/9/2013, thereby including even such wild animals as wild boar, deer, blue-bull, monkey and langoor under the said scheme of compensation. This G. R. being of subsequent date, cannot be straightway made applicable to present case as the incident is of the year 2010. Therefore, another issue would arise for consideration - is it possible to supply what has been left out in the G. R. in order to do justice in the matter? Ordinarily it is not for the Court to supply the casus omissus in an Act of a legislature unless there is a case of clear necessity and when reason for the same could be found in the fore-corners of the statute itself. In the case of Padmasundara Rao (dead) and others Vs. State of T. N. and others reported at AIR 2002 SC 1334 (p.1340), Hon'ble Apex Court observed thus;

"...Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statue itself but at the same time a casus omissus should not be readily inferred... "

17. The rigour of the rule against supplying casus omissus, however, would be some what diluted when it comes to placing an interpretation upon a resolution of the Government as the law now settled is that though circulars and resolutions of the Government being instructions and decisions of the Government bind officers of the Government and parties thereto, same may not hold good when it comes to Courts as they depend for their validity on statutory and constitutional provisions and thus allow greater play to Courts for interpreting them appropriately in the light of principles well entrenched in law. This view has also been taken by a Division Bench of this Court in the case of Bapurao Abaji Aglawe Vs. The State of Maharashtra & others, [2012(3) ALL MR 646]. Even otherwise, we find that in the instant case reason for supplying the casus omissus can be found in the resolution dated 02/7/2010 itself. In addition, there is also a case of clear necessity.

18. The introduction to Government Resolution dated 02/7/2010 clearly states that the compensation being paid to the affected farmers for the loss suffered by them from crop-raiding wild animals being inadequate and there being a need for taking a comprehensive decision for payment of compensation for the damage caused to standing crops, fruit bearing trees, human life and livestock, the Government Resolution dated 02/7/2010 formulating a comprehensive scheme of compensation is being issued. But, while laying down the specifics of the issue of compensation, some how or the other, some of the wild animals have been left out. The intention of the Government, as seen from the introduction, however, is clear and it is to make good the loss or damage suffered by the farmers and orchard owners from the wild animals. Therefore, the loss caused to fruit bearing trees by a protected wild animal, the bluebull,can certainly be also read into the G. R. dated 02/7/2010.

19. Besides, there is also a clear necessity for doing so. Article 51A (g) in part IV-A of our Constitution enjoins upon every citizen to protect and improve the natural environment including, inter-alia, forests and wild life. Avowed object of The Wild Life (Protection) Act, 1972, is to provide for the protection of wild animals, birds and plants and it lays down an elaborate scheme for throwing a protective net around them. Under Section 39, wild animals specified therein are declared to be the property of the State and there is no dispute about the fact that the wild animal blue bull is one of them. Thus, law expects every citizen to be the protector and nurturer of wild animals and, therefore, it cannot be expected of citizens to bear the loss occasioned by them because of these wild animals. Otherwise, the very purpose of giving protection to the wild animals would be frustrated and the affected persons may resort to their own defences for protecting their crops and fruit bearing trees, which may entail some harm to the wild animals.

20. In the circumstances, we are of the view that a case is made out for supplying the casus omissus and accordingly Government Resolution dated 02/7/2010 would have to be read as providing compensation for the damage caused to the orange trees of the petitioner by wild animal, the blue bull. The questions raised herein above are answered accordingly.

21. The compensation payable to the petitioner would be in terms of Part-B of the Government Resolution dated 02/7/2010 and the rate of the compensation would be of the category - "other fruit bearing trees" as it does not specifically refer to orange trees. It is not in dispute that 100 orange trees of the petitioner have been damaged by ran-rohe or blue-bulls and, therefore, the petitioner would be entitled to receive compensation for the said 100 orange trees @ Rs.200/- per tree. The subsequent G. R. dated 05/9/2013 provides for compensation for other fruit bearing trees @ Rs.250/- per tree. However, this rate would not be applicable to the present case as the incident in question was of the year 2012, much before issuance of the said resolution.

22. In the circumstances, we are inclined to allow this petition. It is declared that the petitioner is entitled to receive compensation for the damages to the orange trees in terms of second part of Government Resolution dated 02/7/2010 @ Rs.200/- per tree. Accordingly, the petition is allowed.

Rule is made absolute in these terms. No order as to costs.

Petition allowed.