Gujarat High Court
Pravinbhai Vallabhbhai Nariyana vs State Of Gujarat & 10....Opponent(S) on 21 February, 2018
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/136/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 136 of 2016
With
WRIT PETITION (PIL) NO. 255 of 2016
TO
WRIT PETITION (PIL) NO. 259 of 2016
With
WRIT PETITION (PIL) NO. 34 of 2017
With
WRIT PETITION (PIL) NO. 39 of 2017
With
WRIT PETITION (PIL) NO. 42 of 2017
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PRAVINBHAI VALLABHBHAI NARIYANA,....Applicant(s)
Versus
STATE OF GUJARAT & 10....Opponent(s)
==========================================================
Appearance:
MR MA PAREKH, ADVOCATE for the Applicant(s) No. 1
MR KM ANTANI, AGP for the Opponent(s) No. 1 - 5
MR VIBHUTI NANAVATI, ADVOCATE for the Opponent(s) No. 6
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 21/02/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. All these writ petitions in the nature of public interest litigation are filed by different Sahakari Mandalies in the interest of their members who are agriculturists. As the issue involved in all these petitions is similar, all these petitions are heard together and being disposed of by this common order.
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2. For the sake of convenience, the facts stated in Writ Petition (PIL) No.255 of 2016 are recorded in this order.
2.1. It is the case of the petitioners that the petitioner Sahakari Mandali is registered under the provisions of the Gujarat Cooperative Societies Act and the Rules framed thereunder. The members of the petitioner's society are the agriculturists who have paid premium for the crop insurance to the respondent No.5 - Agricultural Insurance Company Ltd. It is stated that for the purpose of taking precaution of their crops the farmers have paid premium amount for the year 2015-2016 through the respondent No.5. It is stated that after the survey was conducted by the special team of the State Government for the purpose of total rainfall in the year 2015-2016, the respondent Revenue Department has declared particular area as partly drought affected area by issuing Government Resolution dated 01.04.2016. It is stated that after conducting further survey, another resolution dated 18.04.2016 was issued whereby certain other villages were also declared as partly drought affected area. The petitioner has mainly alleged that the respondents have given discriminatory treatment to certain villages by providing 21% claim amount to Bhanvad Taluka, whereas the respondents have granted 94% claim amount to the Page 2 of 16 HC-NIC Page 2 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER farmers of Porbandar Taluka, which is adjoining to the petitioner's Taluka. Petitioners got the said information under the Right to Information Act and thereafter filed the captioned petition in which the petitioner has prayed for the following relief/s:
"A. This Hon Court may pleased to admit/allow the present Writ Petition, in the interest of justice;
B. This Hon Court may be pleased to issue a Writ of Mandamus or Writ of Certiorari or any appropriate writ, order, or direction and be pleased to direct the respondents to consider the case of the petitioner for the award in terms of money of insurance amount to each Farmers who have been insured their crop with the resp. no. 5 Insurance Company through the Resp. No.6 Bank after necessary genuine verification of each farmers according to their premium amount against the crop, as well as be directed to respondents to forgo/waive the loan whatever outstanding against the Insurance of Crop in view of the Resolution at Ann. C Colly. & Ann. D Coll. AS WELL AS, in view of Ann. E Coll. & Ann. F to this petition, forthwith, in the interest of justice;
C. Pending admission and final disposal of this petition, be pleased to restrain the respondents, their men, agents, servants and assignees from recovery of loan against their insured crop, for which they have paid premium to Resp. No.6 Insurance Company through Resp. No. Banks after due verification of each farmers, forthwith, in the interest of Page 3 of 16 HC-NIC Page 3 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER justice;
D. Be pleased to pass such other and further relief/s as the nature and circumstances of the case may require.
3. Heard learned advocate Mr. M. A. Parekh for the petitioners, learned AGM Mr. K. M. Antani for the respondent - State and learned advocate Mr. Vibhuti Nanavati for the respondent - Insurance Company.
4. Learned advocate Mr. Parekh appearing for the petitioners mainly contended that the Revenue Department has issued Government Resolutions dated 01.04.2016 as well as 18.04.2016, whereby certain villages of different Talukas were declared as drought affected areas. Such resolutions are issued on the basis of Aanavaari of agricultural Kharif crops. However, while settling the claims of the petitioners the respondents have considered the yield estimates obtained through Crop Cutting Experiments (CCEs) conducted under General Crop Estimation Survey (GCES). Thus, the respondents have not followed the Government Resolutions and thereby committed illegality. Hence, necessary directions be issued to the respondents.
5. Learned advocate Mr. Parekh thereafter would Page 4 of 16 HC-NIC Page 4 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER contend that though certain villages of Bhanvad Taluka are adjoining to the villages of Porbandar Taluka, the respondents have settled the claim of the petitioners by paying 21% of the insured amount whereas claims of farmers of villages of Porbandar Taluka were settled by making payment of 94% of the insured amount and thereby the respondents have given discriminatory treatment to the petitioners. Hence, this Court may issue necessary directions to the respondents and reliefs prayed for in all these petitions be granted.
6. On the other hand learned Assistant Government Pleader Mr. Antani has referred to the affidavit-in-reply filed on behalf of respondent No.2 and submitted that the Central Government introduced National Agricultural Insurance Scheme (hereinafter referred to as 'NAIS' for short) from Ravi/Summer season 1999-2000. The said scheme was also in force for the year in question i.e. 2015-2016. The said scheme is implemented by the State Government which provides insurance coverage to various risks associated with agricultural crop production viz. drought, pest diseases attack, famine, flood and cyclone.
During kharif season, total 14 crops were covered under NAIS. The guidelines for NAIS provide that a State Level Coordination Committee on Crop Page 5 of 16 HC-NIC Page 5 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER Insurance (SLCCCI) will decide which crops to be covered, area to be notified for the crops, seasonality discipline like cut-off dates for accepting declaration from the banks by implementing agency, premium rates, sum insured, etc. at the beginning of each crop season. It is stated that on 26.03.2015, a meeting of SLCCCI was held for implementation of NAIS during kharif 2015, whereby Government Resolution dated 18.04.2015 was issued in which it was resolved to implement the scheme during kharif 2015. It is stated that as per the scheme and operational modalities of the scheme, once the yield data is received from the State Government as per the cut-off dates decided, the claims will be worked out as per the declaration received from financial institutions for each notified area and approval is obtained. Learned AGP referred to the relevant provisions of the scheme which is produced at page 49 of the compilation of Writ Petition (PIL) No. 255 of 2016 and submitted that the claims would solely be settled only on the basis of the yield estimates obtained through CCEs conducted under GCES and not any other basis such as Aanavaari/Declaration of Drought/Flood Gazettes, etc. by any other department/authority as given in the said scheme as well as, as per clause 18 of the Government Resolution dated 18.04.2015.
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7. Learned AGP thereafter pointed out the
relevant provisions of the scheme and submitted that the Agricultural Insurance Company of India Ltd. had compared the actual yield based on CCEs with the threshold yield Taluka-wise and crop- wise and thereafter it had calculated and settled insurance amount in each Taluka for groundnut crop. Accordingly, during kharif season of 2015 in Bhanvad Taluka of Devbhumi Dwarka district, the crop insurance claims became payable for groundnut crop as per guidelines of the scheme.
8. At this stage, it is further pointed out that each of the Taluka has different threshold yield and average yields for Kharif 2015 are also different for the same crop. Hence, shortfall occurred in yield for groundnut crop in different Taluka is also variable / different. It is therefore contended that the claims paid for different Taluka may also different. Hence, the claims paid in Bhanvad Taluka and Porbandar Taluka are different. It is therefore submitted that there is no discrimination as alleged by the petitioners.
9. So far as the relief prayed for in the petition with regard to waive off the outstanding loan amount against the insurance of the crop is concerned, it is submitted that to waive off the Page 7 of 16 HC-NIC Page 7 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER outstanding loan is not in the purview of the Director of Agriculture.
10. Learned advocate Mr. Vibhuti Nanavati appearing for the respondent insurance company also referred to the relevant provisions of the NAIS and submitted that calculation and settlement of claims is an automated process. Indemnity claims under NAIS are not paid as per the Government Resolution issued by any of the States or District level government official. Learned advocate Mr. Nanavati also referred to the Government Resolution dated 18.04.2015 issued by the Government of India and more particularly clause No.18 thereof which provides that the claims would solely be settled on the basis of yield estimates obtained through CCEs conducted under GCES and not on any other basis such as Annewari/Declaration of drought/Flood Gazette etc. by any other department/authority. It is submitted that the respondent - insurance company has not violated any provisions of the scheme and once the members of the petitioners Mandali i.e. the farmers have insured their crop as per NAIS, they are covered by the said scheme and not by any other resolution passed by the State Government. It is, therefore, urged that all the petitions be dismissed.
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11. Having considered the submissions canvased on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the petitioners are different cooperative societies operating in different Talukas. The Central Government issued NAIS, copy of which is produced along with affidavit-in-reply filed by the respondent State. The relevant provisions of NAIS are as under:
"OBJECTIVES:
The objectives of the RKBY are as under:-
1. To provide insurance coverage and financial support to the farmers in the event of failure of any of the notified crop as a result of natural calamities, pests & diseases.
2. To encourage the farmers to adopt progressive farming practices, high value in-puts and higher technology in Agriculture.
3. To help stabilize farm incomes, particularly in disaster years.
4. RISKS COVERED & EXCLUSIONS:
Comprehensive risk insurance will be provided to cover yield losses due to non-preventable risks, viz.:
(i) Natural Fire and Lightning
(ii) Storm, Hailstorm, Cyclone, Typhoon, Tempest, Hurricane, Tornado etc.
(iii) Flood, Inundation and Landslide.
(iv) Drought, Dry spells
(v) Pests/Diseases etc. Page 9 of 16 HC-NIC Page 9 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER Losses arising, out of war & nuclear risks, malicious damage & other preventable risks shall be excluded.
5) ESTIMATION OF CROP YIELD:
The Claim assessment procedure and parameters involved in estimation of claims shall be the same for Loanee and Non-Loanee farmers as also for food crops/oil seeds and annual commercial / annual horticultural crops.
The State Department will plan to conduct requisite number of CCEs for total notified crops in the notified insurance units in order to assess the crop yield. The State Government will notify the crops where requisite minimum number of CCEs will be conducted in accordance with the sliding scale given below:
SL SIZE OF INSURANCE UNIT MINIMUM NUMBER OF NO CCES REQUIRED 1 TALUKA / TEHSIL / BLOCK 16 2 MANDAL / PHIRKA / ANY 10 OTHER SMALLER UNIT AREA COMPRISING 8-10 VILLAGES 3 GRAM PANCHAYAT 08 COMPRISING 4 - 5 VILLAGE The State Government/U.T. administration will maintain a single series of CCEs for both Crop Production and Crop Insurance.
The yield data will be furnished to IA Page 10 of 16 HC-NIC Page 10 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER by the State Government / UT in accordance with the cut-off dates fixed for all crops and areas notified, based on the TOTAL NO. of CCEs (being not less than the minimum prescribed) conducted.
The standard procedures for assessing the yield in respect of multiple picking crops will be prepared by IA in consultation with the National Sample Survey Organisation (NSSO) and circulated among implementing States/UTs.
A Committee comprising representatives of State/UT Govt., National Sample Survey Organisation (NSSO) and IA will be set up at the State level to monitor/supervise and advise in matters relating to adequacy and quality of CCEs.
A Technical Advisory Committee (TAC) comprising representatives from NSSO, MOA and IA shall be constituted at National level to decide the sample size of CCEs and also technical matters pertaining to Threshold yield / Actual Yield etc.
7). PROCEDURE OF SETTLEMENT OF CLAIMS:
Once the yield data is received from the State Government as per the cut-off dates decided, the claims will be worked out as per Declarations received from FIs for each notified area and approval is obtained. The funds needed for payment of claims beyond the risk sharing limits of IA shall be provided by the Government to effect payment. The claim cheques along with claim particulars will be released to Page 11 of 16 HC-NIC Page 11 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER individual Nodal points. The Flat the grass root level in turn shall credit the accounts of the individual farmers and display the particulars of beneficiaries in the notice board.
Loss assessment and modified indemnity procedures in case of occurrence of localized perils, such as hailstorm, landslide, cyclone and Flood where settlement of claims will be on individual basis, shall be formulated by IA in consultation with State / UT Govt.
CLAIMS APPROVAL:
Claims shall be approved by IA. However, the Government may at their option, scrutinize/examine a claim falling within their risk liability.
Disputed claims/sub-standard claims, if any will be referred to a Committee consisting of representatives of Ministry of Agriculture (GOI), concerned State Government and IA.
Settlement/release of claims in the State/UTs which exceed set risk sharing limits of IA shall be subject to receipt of funds from the Government."
12. The respondent - insurance company has averred in para 6.3 of the affidavit-in-reply as under:
(6.3) It is however submitted that said National Agriculture Insurance Scheme would operate on Area Approach basis, i.e. Defined Area for each crop. Following are the defined area finalized Page 12 of 16 HC-NIC Page 12 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER for kharif 2005 under NAIS.
Sr Name of Villages
No Taluka
10 Jamnagar 1.Jamnagar
2.Jodia
3.Dhrol
4.Kalavad
5.Lalpur
6.Jamjodhpur
11 Porbandar 1.Porbandar
2.Rana Vav
3.Kutiyana
29 Dev 1.Okhamandal
Bhoomi 2.Khambaliya
Dwarka 3.Kalyanpur
4.Bhanvad
In the present case the Defined Areas for the Crop Groundnut is Bhanvad Taluka of Dev Bhumi Dwarka district. It is further submitted that if the Actual Average Yield per hectare of the "Notified Crop" for the "Defined Area"
falls short of the Threshold Yield, all the farmers insured under that Defined Area growing that crop are deemed to have suffered a shortfall in their yield. The NAIS provides coverage against such contingency. There is separate Threshold Yield and Actual Average Yield for every Defined Area. Indemnity under NAIS shall be calculated as per the following formula:
Claims payable = Shortfall in yield Insured ------------------ X Sum Threshold yield (Shortfall in yield = Threshold yield - Actual Average Yield for the defined Area)"Page 13 of 16
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13. The Government of Gujarat has also issued Government Resolution dated 18.04.2015 for kharif 2015. Clause 18 of the said Resolution provides as under:
"The claims would solely be settled only on the basis of yield estimates obtained through CCEs conducted under GCES and not any other basis such as Annawari/Declaration of Drought/Flood Gazettes, etc. by any other department/authority."
14. Thus, from the aforesaid relevant provisions of the scheme as well as the resolution, it is clear that the claims of the farmers would solely be settled only on the basis of yield estimates obtained through CCEs conducted under GCES and not any other basis such as Annawari/Declaration of Drought/Flood Gazettes, etc. by any other department/authority. From the record, it is revealed that the respondent - State as well as the respondent - insurance company have followed the provisions of the scheme as well as the aforesaid resolution and for kharif 2015, the respondent - insurance company had compared the actual yield based on CCEs with the threshold yield taluka-wise and crop-wise and thereafter it had calculated and settled insurance amount in each Taluka for groundnut crop. Accordingly, during kharif season of 2015 in Bhanvad Taluka of Page 14 of 16 HC-NIC Page 14 of 16 Created On Wed Feb 21 23:49:08 IST 2018 C/WPPIL/136/2016 ORDER Devbhumi Dwarka district, the crop insurance claims became payable for groundnut crop as per guidelines of the scheme. It is required to be noted that each of the Taluka has different threshold yield and average yields for kharif 2015 are also different for the same crop. Thus, shortfall occurred in yield of groundnut crop in different Taluka is also different and therefore the claims paid for different Taluka is also different. The respondents have considered each Taluka as a unit and therefore merely because some of the villages of one Taluka are adjoining to some of the villages of another Taluka, claims of farmers of such villages cannot be treated on the same footing. As observed hereinabove, as per the scheme, each Taluka is considered as a unit and a team of experts, on the basis of the yield data received from the State Government as per the cut-off dates decided, worked out the claims of the farmers as per the declaration received from financial institutions for each notified area. The claims of the notified crops of a defined area i.e. Taluka are being calculated on the basis of actual yield of a particular year, derived on the basis of an average of CCEs results on the basis of the crop yield data collected through such CCEs which is forwarded by Director of Agriculture, State of Gujarat to the respondent - insurance company. The respondent -
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insurance company calculated the threshold yield by considering the average crop yield data of 3/5 years.
15. The reliance placed by learned advocate for the petitioners on Government Resolutions dated 01.04.2016 and 18.04.2016 is misconceived in view of Clause 18 of G.R. dated 18.04.2015 issued by the Government as well as, as per the National Agricultural Insurance Scheme under which the petitioners are covered.
16. In view of the aforesaid discussion, petitioners are not entitled to the reliefs as prayed for. Accordingly, the petitions are dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 16 of 16 HC-NIC Page 16 of 16 Created On Wed Feb 21 23:49:08 IST 2018