Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.41919 of 2023 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Dillip Kumar Behera …. Petitioner(s) -versus- State of Odisha and Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. Prabir Kumar Ray, Adv. Mr. G.R.Mohapatra , ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-24.07.2024 DATE OF JUDGMENT: -24.09.2024 Dr. S.K. Panigrahi, J. 1. The Petitioner, through this Writ Petition, seeks for a direction to the Opposite Parties to make necessary provisions for the survival of the Petitioner and his family members as the Petitioner has become permanently disable due to attack by wild elephants. 2. The petitioner seeks for a direction to the Opp. Parties to make provisions for the payment of Rs.10,000/- per month to the petitioner and his family for their survival or a payment of lump sum amount of Page 1 of 10
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 Rs.50 lakhs towards compensation for the survival of the petitioner and his family members. I. FACTUAL MATRIX OF THE CASE: 3. The brief facts of the case are as follows: (i) The petitioner, a 38-year-old male hailing from an impoverished family, was engaged in agricultural activities for his livelihood. On the evening of 22.10.2020, at approximately 8 PM, while the petitioner was vigilantly guarding his corn crop, a herd of wild elephants intruded upon his field and attacked him, resulting in a fall that caused significant injury to his spinal cord. (ii) Despite being promptly transported to medical facilities, first to the District Headquarters Hospital in Khordha, then to SUM Hospital in Bhubaneswar, and subsequently to Apollo Hospital in Bhubaneswar, where a surgical procedure on his spinal cord was performed, the medical professionals were unable to prevent the petitioner from becoming a quadriplegic. He has been diagnosed with cervical myelopathy (traumatic) quadriplegia, a condition characterized by paralysis of all four limbs and the inability to move any part of his body below the neck. (iii) The Forest Department sought a report regarding the petitioner’s medical condition, and the District Medical Board, in its meeting on 05.02.2021, concluded that the petitioner suffers from quadriplegia due to a cervical spine injury, which is permanent in nature. Consequently, the competent authority issued a Disability Certificate in the prescribed format. Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (iv) The petitioner asserts that he has incurred expenses exceeding ten lakhs, utilizing his entire savings, liquidating nearly all of his assets, and borrowing funds from friends and relatives. (v) Although the petitioner has expended over eight lakhs on his medical treatment, with documentation confirming expenses of ₹5,67,704 incurred at SUM Hospital and Apollo Hospital, he requested the opposite parties to reimburse these expenses. This request is substantiated by correspondence from the Forest Range Officer of Tangi to the DFO of Khurda dated January 25, 2021. However, the Opposite Parties have failed to acknowledge or fulfill his request for reimbursement. (vi) The petitioner, through his family, submitted an application for financial assistance designated for victims of such incidents. Nonetheless, the Government of Odisha and the Department of Forest and Environment only disbursed ₹1 lakh, as indicated by office order no. 102/4F-(misc)-24/2021 dated 16.03.2021. (vii) In light of the foregoing, the Petitioner has filed this Writ Petition seeking appropriate relief. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) The current state of the petitioner is tantamount to a condition worse than death, as while death results in an immediate cessation of life, the petitioner endures daily suffering. His family is burdened with the Page 3 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 continuous responsibility of caring for him, not only providing nourishment but also managing his paralyzed body, which is subject to infections from bedsores and other complications. This combination of debilitating illness and extreme poverty has rendered the petitioner’s existence unbearable. (ii) The compensation of ₹1 lakh awarded is grossly insufficient for the survival of the petitioner and his family. The petitioner’s family is heavily indebted due to the expenses incurred for treatment at SUM Hospital and Apollo Hospital. Presently, the petitioner requires ongoing medical treatment, including medication, in addition to daily living expenses for the family, such as food and other necessities. The family is effectively living in destitution, relying on the charity of their neighbors. (iii) The opposite parties have neglected the petitioner by providing a one- time compensation of ₹1 lakh, erroneously believing that this amount would suffice for the petitioner’s and his family’s survival. This sum fails to account for even a fraction of the costs already incurred for his medical treatment. (iv) The petitioner finds himself in this dire situation due to the state’s gross failure to protect innocent individuals like him by regulating the movement of wild animals within designated forest areas and preventing them from encroaching into human habitats. In this instance, the petitioner did not venture into the forest; rather, it was the inaction of the opposite parties in preventing elephants from entering populated areas that led to the attack on the petitioner, resulting in his lifelong disability. Consequently, the state bears a duty to ensure that Page 4 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 individuals like the petitioner are afforded the means to meet their basic life necessities.
Legal Reasoning
(v) The petitioner’s right to life, as enshrined in Article 21 of the Constitution of India, has been violated. The Honorable Supreme Court has consistently held that the right to livelihood constitutes a vital aspect of the right to life under Article 21. Thus, the state’s failure to provide the petitioner with the minimum means of livelihood necessitates the intervention of this Court. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 5. (i) Per contra, learned counsel for the Opp. Parties earnestly made the following submissions in support of his contentions: The petitioner was immediately shifted to District Headquarter Hospital, Khordha and admitted vide registration no.211212003121363 dated 22.12.2020 and after preliminary treatment, he was referred to AIIMS, Bhubaneswar but this petitioner got himself admitted at IMS & SUM Hospital, Kalinga Nagar, Bhubaneswar vide registration No.SUM.OP.2012221665 dated 23.12.2020. Then, he was shifted to Apollo Hospital, Bhubaneswar. (ii) The Range Officer, Tangi submitted the prescription & medicine bills of Sri Behera in support of his treatment at SUM Hospital and Apollo Hospital on 25.01.2021. Immediately the matter was referred to Chief District Medical Officer, Khordha with request to issue injury report in favour of the victim Sri Behera to ascertain the nature of injury whether permanent or temporary for sanction of Wildlife grant as per Wildlife Page 5 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (Protection) (Odisha) Amendment Rule, 2014. The nature of injury of Sri Behera was examined by the District Medical Board, Khordha under the chairmanship of Chief District Medical Officer, Kordha and P.H.O, Khordha on 05.02.2021. The DMO-cum Superintendent, District Headquarter Hospital, Khordha vide his Letter No.561 dtd.09.03.2021 communicated the said injury report to this office wherein it has been clearly mentioned that the patient is having Quadriplegia due to Cervical Spine injury and the injury is permanent in nature. (iii) Based on the report of the medical Board and in pursuance to Wildlife (Protection) (Odisha) Amendment Rule, 2014, an amount of Rs.1 Lakh (Rupees one lakh only) was sanctioned towards compassionate grant in favour of Sri Dillip Kumar Behera vide this Office Order No.102 dated 16.03.2021 and the Range Officer, Tangi was directed for payment of compassionate grant Rs.100000/- (Rupees one lakh) only to Sri Dillip Kumar Behera under budget head 2406-04-796-3364-91348 (CAMPA, Wildlife) during March, 2021. (iv) In order to protect the people from the Wild elephants/wild animals the following steps have been taken by this Division:- (a) Vehicles fitted with sound system have also been provided to Range Officers to ascertain the presence of the wild elephant and to transmit the information to the nearby villagers. (b). Awareness programme are being conducted among the villagers adjacent to forest, sufficient posters and books are being distributed and banners have been fixed in frequent interval of sensitive zone to educate the people on man- animal conflict. Page 6 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 (c). Solar street light also been fixed in 31 villages where elephants are moving. (d). 60 nos of local youths have been engaged as Elephant Squad, Wildlife Protection Squad and Rapid Action team, Site Specific Wildlife Conservation squad to drive the elephants from human habitation towards forest and to protect the lives of the general people (v) Govt. of Odisha in their Forest & Environment Deptt. vide Notification No.5266/8F (WL) (6/2011/F&E) dtd.23.03.2011 in exercise of power conferred under Section-64 of the Wildlife (Protection) Act, 1972 makes the Rule for payment of compassionate grant in case of death of human beings by the wild animal, permanent injury, temporary injury, cattle kill, crop damage or house damage by wild elephant. Subsequently, the compassionate grant meant for permanent injury was enhanced from Rs.75,000/- to Rs.1,00,000/- vide notification No.13505/8F(WL) (6/2014/F&E) dated 22.07.2014. (vi) Government has been taken sufficient precautionary measure to protect the people from wild animal attack and also make provision for payment of compassionate grant. This petitioner has not taken care of his own knowing it pretty well that wild elephants are present in and around in his paddy field. After availing the facilities provided by the
Decision
statute filing of the writ petition by the petitioner indicates his intention which may not be considered. (vii) The District Head quarter Hospital, Khordha referred this petitioner to AIIMS, Bhubaneswar for his better treatment but this petitioner got Page 7 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 himself admitted in private (SUM hospital and thereafter in Apollo hospital, Bhubaneswar) for his treatment and for the reasons best known to him. Treatment in private hospitals definitely invites more expenditure. (viii) As per the legal provision, payment of Rs.100000/- has been made on receipt of the permanent injury Certificate from the Medical Board. The DHH, Khordha referred the petitioner to AIIMS, Bhubaneswar, but the family members decided to continue his treatment in Private medical like SUM and Apollo hospital. There is no such provision to reimbursement the medicine bill of the victim obtained from private hospitals. IV. EXAMINATION OF THE LEGAL MATRIX: 6. 7. I have heard the rival contentions and perused the materials on record. In the State of Odisha, the man-animal conflict, particularly the recurrent encounters between elephants and humans, has escalated into a matter of grave concern, resulting in both loss of life and extensive destruction of property. Odisha, home to a significant population of elephants, frequently witnesses these animals stray into human habitations due to shrinking forest cover, habitat fragmentation, and scarcity of food. As agricultural and urban development encroach upon forested areas, elephants, having lost access to their traditional migratory paths, are forced to enter villages and farmlands, thereby causing considerable devastation. The consequences are often tragic— human lives are lost, crops are destroyed, and homes and livelihoods are decimated. Official data indicates that fatalities linked to elephant Page 8 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 encounters in Odisha have surged over recent years, with hundreds of lives being claimed. 8. The ongoing destruction caused by elephants has instilled a deep sense of fear and instability among local communities, especially in districts like Angul, Dhenkanal, and Keonjhar, where such incidents are frequent. Farmers in these areas are particularly vulnerable as elephants trample crops ready for harvest, often leading to significant financial ruin. This growing conflict serves as a reflection of a broader environmental crisis, where deforestation and unregulated development push wildlife closer to human settlements, intensifying the risk of encounters. The law, which unequivocally designates wild animals as government property for the purposes of protection from hunting, logically extends the Government’s responsibility to compensate for any loss or damage caused by these animals, given that they remain government property in all respects. 9. Therefore, it is reasonable to assert that if wild animals, being the property of the Government, cause harm to any citizen or farmers, it is the Government’s duty to take responsibility for the loss. Citizens are entitled to claim compensation for any damage caused by wild animals, whether or not such claims are specifically mentioned in existing Government Orders, schemes, or provisions. 10. The Government, as a welfare state, must revise its policies to ensure that all affected individuals, irrespective of when the incident occurred, are granted their rightful claims. Page 9 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 19:03:05 11. In the present case, while the petitioner’s plea for compensation warrants sympathy, the State’s argument is equally valid. The petitioner’s decision to seek private medical care rather than treatment at AIIMS Bhubaneswar led to a significant increase in medical expenses, and thus the state cannot be held liable for the entirety of the petitioner’s medical costs. 12. However, this Court notes that the Government of Odisha, in 2023, revised its compensation policy, increasing the amount of assistance for permanent disability caused by man-animal conflicts. For injuries resulting in less than 60% disability, the compensation has been raised from ₹1 lakh to ₹1.50 lakh, and for disabilities exceeding 60%, the compensation has been increased to ₹2.50 lakh. The petitioner is, therefore, entitled to make a fresh representation to the relevant authorities for consideration of his claim. The said authority shall decide the Petitioner’s representation and consider granting some compensation in accordance with the prevalent compensation policy within three months from the date of filing of the representation. 13. Accordingly, this Writ Petition is partially allowed with the expectation that the authorities will consider the Petitioner’s case for compensation as expeditiously as possible. Orissa High Court, Cuttack, Dated the 24th September, 2024/ (Dr. S.K. Panigrahi) Judge Page 10 of 10