Cases referred :
1. Seaford Court Estate Ltd . Vs. Asher, (1949)2 All. ER. 155 (C.A.) 164.
2. Reema Aggarwal Vs. Anupam, 2004(1) Bom.C.R.(Cri.) 848 : (2004)3 S.C.C. 199.
3. Padmasundara Rao Vs. State of T.N., A.I.R. 2002 S.C. 1334.
4. Shreehuree Roy Vs. James Hill, 1868(9) W.R. 156. Advocates appeared : P.D. Meghe, for petitioner. N.W. Sambre, Govt.P., for respondent Nos. 1 & 2. S.R. Deshpande, for respondent Nos. 3 & 4. 591.PM/IN/JM/BM Per BOBDE S.A., J.:- Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the respective parties.
2. The petitioner has approached this Court for a direction to set aside the communication dated 13.7.2011 issued by respondent No. 1 Additional Principal Secretary (Forest), Mumbai thereby declining to grant compensation to the petitioner in view of the communication to him by the Ministry of Finance, State of Maharashtra, Mumbai.
3. After retirement from service of the State Government of Maharashtra, the petitioner started cultivation of banana plants in his agricultural land at Tah. Seloo, Dist. Wardha in an area of 5 acres. It is common knowledge that Banana plants require water through out the year and so the petitioner had made adequate arrangements for irrigation through the well constructed in his agricultural field and employed 45 labourers for working through out the year. Apparently, the petitioner made the area lush and full of shade. Little did the petitioner realize that it would attract tiger. In March, 2010, tigers entered the farm of the petitioner and made it their home having found there was ample water in the water tank of said agricultural land. Because of the tigers, who started residing in the petitioners agricultural land, the Forest Guards warned the farmers in the area not to go to the said agricultural land as there was possibility of attack by the tigers. In fact, one cow of the petitioner was killed by one of the tigers, for which the respondent-Forest Department paid compensation to the petitioner. Since, apparently the surrounding appeared very homely, the tigers continued residing in the area till July, 2010. After July, 2010, they shifted to the nearby forest i.e. Bor Wild Life Sanctuary.
4. The petitioner, who discovered damage to his plantation and also to the PVC pipes laid by the petitioner in his agricultural land, claimed compensation to the Forest Department. Eventually, the Forest Department recommended that the petitioner should be paid compensation @ Rs. 48/- per plant. However, the Finance Department, State of Maharashtra, appeared to have disagreed to the recommendation made by the Forest Department and declined also to award any compensation to the petitioner. Accordingly, the Finance Department wrote to the Forest Department, which has issued impugned letter to the petitioner.
5. According to Mr. Meghe, the learned Counsel for the petitioner, the respondents ought not to have declined to pay the compensation. Particularly, since it is not disputed that the tigers had started residing in the agricultural land of the petitioner and it is not disputable that it is impossible to carry out any agricultural operation, if tigers are moving or inhabiting in the agricultural land. In fact, according to the learned Counsel for the petitioner, one tigress gave birth to cubs and she made it impossible for anybody to approach the area. From the report of the Forest officials, it appears that there was migration of a tigress with her cubs to the area. The report further states that the Forest Department had received information that one tigress with her cubs was residing in Survey No. 122 belonging to the petitioner. It is heartening to note that the petitioner did not take any steps whatsoever to disturb the tiger or tigress and allowed the tigress to stay in his agricultural land till she moved out on her own.
6. The claim of the petitioner for compensation was recommended by the Forest Department, as stated earlier, but was turned down by the Finance Department. In the order of this Court dated 1.3.2012, this Court observed the Government Policy in regard to the grant of compensation to the farmers, who suffer loss due to the animals. There is no doubt that the petitioner suffered a loss due to animals.
7. Mr. Sambre, the learned Government Pleader, who took time to obtain instructions from Finance Department, has stated today that the Finance Department has agreed to grant compensation to the petitioner as recommended by the Forest Department and the said amount will be disbursed to the petitioner within a reasonable time. It seems that the Finance Department has shown due sensitivity to the petitioners problem and has correctly applied the principle of compensating a farmer for the loss suffered by him due to animals.
8. We find that under the Government Resolution dated 2.7.2010, farmers who suffer loss due to animals, are entitled to receive compensation and the animals could cause loss to farmers in several ways, either by feeding on the crop or obstructing agricultural operations. The said Government Resolution expressly provides for loss caused to an agriculturist by wild Boar, Deer, Bison, Bluebull (Neelgai), monkeys and wild Elephants, which are well known as capable of causing destruction of crops. The basis on which compensation may be calculated has also been specified in the said G.R., which are as follows : Sr. Particulars Financial Aid to be Given
1. Damage caused Full, but minimum Rs. 500/- upto Rs. 2000/-
2. Damage caused Rs. 2000/- plus 50% of the between Rs. amount of additional damages 2,001/- to (maximum upto Rs. 6000/-) 10,000/-
3. Damage caused Rs. 6000/- plus 30% of the more than damages above Rs. 10000/- Rs. 10,000/- (maximum upto Rs. 15000/-)
4. Sugarcane @ Rs. 400/- per metric ton Particulars Compensation to be Awarded Horticulture Coconut @ Rs. 2,000/-per tree. trees Betel-nut @ Rs. 1,200/- per tree. Kalmi Aamba (One of the mango breeds) @ Rs. 1,600/- per tree. Banana @ Rs. 48/- per tree. Other Horticulture trees @ Rs. 200/- per tree.
9. At one time, it seems to have been a stand of the Finance Department that the petitioner is not entitled to compensation because the loss caused by a tiger is not contemplated by the G.R. Apparently, no provision was made for loss caused by a tiger because it is uncommon and it could not be imagined how a tiger, who is an entirely carnivorous animal, could cause loss to trees and plants. The tigers in the present case have, however, established how that is possible. Having regard to the true intention of the Government Resolution, which is now supported by the Courts decision to release compensation i.e. to compensate for loss caused to agriculturists by wild animals, the mere omission of the tiger from the animals mentioned there, would make no difference. The Court would not be supplying a true casus omissus if an agriculturist is held eligible for compensation due to loss caused by a tiger though not mentioned amongst the wild animals referred to in the G.R. We rely on the following observations of Lord Denning in (Seaford Court Estate Ltd. Vs. Asher)1, (1949)2 All. ER. 155 (C.A.) p.164, which have been cited with approval by the Supreme Court of India in (Reema Aggarwal Vs. Anupam)2, 2004(1) Bom.C.R.(Cri.) 848 : 2003 DGLS (soft) 812 : (2004)3 S.C.C. 199 p.213.
The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written work so as to give force and life to the intention of the legislature. ... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened if out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. (italicized for emphasis).
10. The rule of not supplying the casus omissus in an Act of a legislature would not have the same rigour when dealing with a G.R., acted upon by the Government as if the casus omissus stood supplied. We are of the view that there is a clear necessity to supply the casus omissus in the present case to avoid absurdity. In (Padmasundara Rao Vs. State of T. N.)3, 2002 DGLS(Soft.) 316 : A.I.R. 2002 S.C. 1334 p.1340, the Supreme Court observed as follows: ...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 statute itself but at the same time a casus omissus should not be readily inferred....
11. We see no reason why a farmer should not be entitled to the compensation for loss suffered by him on account of a tiger, when he is entitled to compensation for loss suffered on account of any other wild animal. The exclusion of Tiger from the Government Resolution is not reasonable. It is creditable that the Finance Department has, on its own, seen that there is no difference between the loss caused by any of the animals specified in the Government Resolution and by a tiger. This is indeed an extraordinary case, but there is no reason why the case of a farmer, who suffers active destruction and loss due to certain animals, should be treated differently from the case of a farmer, who suffers loss on account of being prevented from doing agriculture on account of presence of a fearsome animal like a tiger in his agricultural land. The learned Government Pleader fairly pointed out that wild animals including tiger are considered to be the property of the State Government or Central Government, depending on where it has been hunted, under section 39 of The Wild Life (Protection) Act, 1972, which reads as follows :
9. Wild animals, etc. to be Government property -(1) Every (a) wild animal, other than vermin, which is hunted under
section 11 or sub-section (1) of section 29 or sub-section (6) of section 35 or kept or bred in captivity or hunted in contravention of any provision of this Act o any rule or order made thereunder or found dead, or killed by mistake ; and (b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in Clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been omitted ; (c) ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed ; (d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act, shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal, article, trophy, uncured trophy or meat derived from such animal or any vehicle, vessel weapon, trap or tool used in such hunting, shall be the property of the Central Government. 2] Any person who obtains, by any means, the possessionof Government properties shall, within fortyeight hours from obtaining such possession, make a report as to the obtaining of such possession to the nearest Police Station or the authorized officer and shall, if so required, handover such property to the officer-in-charge of such Police Station or such authorized officer, as the case may be. (3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or the authorized officer a] acquire or keep in his possession, custody or control, or b] transfer to any person, whether by way of gift, sale or otherwise, or c] destroy or damage, such Government property.
12. Though, the provision declares that the wild animals are Government property, in the context of their protection from being hunted, we are of the view that the wild animals should be treated as Government property for all purposes. Therefore, if a wild animal cause loss to an agriculturist or a citizen, it would be the responsibility of the appropriate Government to make good the loss. In this country it is settled law, even in relation to cattle that the amount is liable for their trespass upon unenclosed land and for all naturally resulting damage, vide The Law of Torts by Ratanlal and Dhirajlal, 26th Edn. page 391, (Shreehuree Roy Vs. James Hill)4, (1868)9 W.R. 156.
13. Certainly, it would be open to a citizen to claim compensation or the loss caused by any wild animal, whether specifically referred to in any provision, Government Resolution or not. In fact, we find from the compensation policy framed by the Government that it enjoins farmers to protect the nests of Vultures from destruction and claim compensation for any loss suffered by them on account of having so protected the nests. There is no reason why same principle should not have been applied to the case of the petitioner, who protected the tigress who nurtured her cubs in an agricultural land of the petitioner. Eventually, the decision of the Finance Department for agreeing to grant compensation to the petitioner as recommended by the Forest Department, is correct in law.
14. In the circumstances, we direct that the compensation shall be disbursed to the petitioner within a period of three months from today. The writ petition is allowed accordingly. Rule is made absolute in above terms. No order as to costs. Certified copy of the judgment expedited. Petition allowed.
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