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Supreme Court of India
The Conservator And Custodian Of … vs Sobha John Koshy . on 10 February, 2021Author: Ashok Bhushan
Bench: Ashok Bhushan, R. Subhash Reddy
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._414 of 2021
(arising out of SLP(C)Nos.27651 of 2008)
THE CONSERVATOR AND
CUSTODIAN OF FOREST & ORS. …APPELLANT(S)
VERSUS
SOBHA JOHN KOSHY & ANR. …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. This appeal has been filed by the Conservator and
Custodian of Forest and other appellants challenging
the judgment of the Division Bench of Kerala High
Court dated 05.06.2008 dismissing the writ appeal
filed by the appellants. Writ Appeal was filed by
the appellants questioning the judgment of the
learned Single Judge dated 19.01.2007 allowing the
Signature Not Verified
Digitally signed by
MEENAKSHI KOHLI
writ petition filed by the respondents directing the
Date: 2021.02.10
15:35:40 IST
Reason:
respondents, appellants herein, to pay to the writ
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petitioners compensation for the land directed to be
restored to them by the earlier judgment of the High
Court.
3. Brief facts of the case giving rise to this
appeal are:-
3.1 The land which is subject matter of this
appeal alongwith other land situate at Pannu
Valley in Wayanad, State of Kerala was said
to be vested in the Government under the
Kerala Private Forest (Vesting and
Assignment) Act, 1971 (hereinafter referred
to as “Act, 1971”). The respondents with
their predecessor-in-interest filed
application in the Forest Tribunal under
Section 8 of the Act, 1971 for declaration
that the lands were not vested forest.
3.2 The Forest Tribunal rejected the claim,
against which matter was taken to the High
Court, the High Court remanded the matter to
the Tribunal for fresh determination. After
prolong litigation, ultimately by Division
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Bench judgment of the Kerala High Court dated
10.02.1998, the MFA filed by the respondents
was allowed by the High Court and it was
declared that land in questions are exempted
from provisions of Act, 1971. The High Court
also held that writ petitioners proved
cultivation and that the area was cultivated
with plantation and crop. The judgment of
the Forest Tribunal was set aside declaring
that land not vested in the Government on the
appointed date under Act, 1971.
3.3 After the above judgment of the High Court,
it was incumbent upon the custodian to
restore back the possession of the land.
Restoration of several other pockets of land
which were subject matter of MFA No.934 of
1990 before the High Court were done to the
owners, but the land, which were subject
matter of O.A. No.67 of 1995 and O.A. No. 68
of 1995 could not be restored due to one or
other reasons.
3.4 On part of land, Adivasis were in possession,
who could not be dispossessed by the State.
3
For certain period, there was interim order
operating in favour of the Adivasis against
their dispossession of the land. There were
correspondences between respondents as well
as State Forest Officer regarding restoration
of land. A proposal was submitted by the
Divisional Forest Officer to allot
alternative land to the respondents, which
could not be materialised. Divisional Forest
Officer recommended that instead of
restoration of the land, compensation be paid
to the land owners whose land could not be
restored, the respondent expressed their
agreement to receive compensation.
3.5 A Writ Petition No. 3340 of 2004 was filed by
the respondents in Kerala High Court. In the
writ petition, it was submitted that land in
question was valued by Tehsildar Mananthavady
recommending value of land involved in O.A.
No.67 as Rs.1,000/- per cent and the land
involved in O.A. No.68 as Rs.800/- per cent.
In the writ petition, writ petitioners prayed
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that either they may be restored the original
land or they may be paid compensation as
assessed by the District Tehsildar. The
learned Single Judge allowed the writ
petition. In paragraph 6 of the judgment,
following was held by the High Court:-
“6. ………………….In view
of these developments, I am of
opinion that in so far as the
respondents are not able to
restore the land in compliance
with the judgment of this Court,
the petitioners are certainly
entitled to compensation for the
land, which is to be restored to
them. Now that the Tahsildar has
assessed the value of the land
which, according to him, is very
reasonable compared to the market
value of the land in the area, I
am of opinion that the petitioners
should be paid compensation for
their land at the rate assessed by
the Tahsildar as per Ext. P10.
Accordingly, there would be a
direction to the respondents to
pay to the petitioners
compensation for the land directed
to be restored to them as per Ext.
P1 judgment of this Court in
respect of the lands covered by
O.A.Nos. 67 and 68 of 1975 at the
rates assessed by the Tahsildar as
per Ext. P10. Amounts calculated
as above shall be disbursed to the
respective petitioners within a
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period four months from the date
of receipt of a copy of this
judgment. The writ petition is
allowed as above.”
3.6 The Conservator of Forest and other State
authorities aggrieved by the judgment filed a
Writ Appeal No.1757 of 2007 before the
Division Bench of the Kerala High Court. The
writ appeal has been dismissed by the
Division Bench. The Division Bench held that
under Section 8 of Act, 1971, the custodian
had statutory duty to restore the possession
of such land on the basis of the order, which
having not done, the statutory duty is
violated. By holding so, the writ appeal was
dismissed. The Conservator of Forest and
other State respondents have filed this
appeal challenging the judgment of the
Division Bench.
4. Shri Pallav Shishodia, learned senior counsel
appearing for the appellants submits that under
Section 8(2), all the land in dispute is a ecological
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fragile land within the meaning of Kerala Forest
(Vesting and Management of Ecologically Fragile
Lands) Act, 2003 (hereinafter referred to as “Act,
2003”). It is submitted that notification dated
03.04.2007 has already been issued under Section 3 of
Act, 2003 whereby the said land vested in State for
which no compensation is payable. Learned senior
counsel has referred to Section 8(2) of the Act,
2003, which provides that no compensation shall be
payable for the vesting in Government of any
ecologically fragile land or for the extinguishment
of the right, title and interest of the owner or any
person thereon under sub-section(1) of Section 3.
There being no challenge to the notification dated
12.03.2007 by respondents, no compensation is payable
by the State under Section 8(2). It is submitted
that prior to 2003 enactment, ordinance was
promulgated namely Kerala Forests (Vesting and
Management of Ecologically Fragile Lands) Ordinance,
2000. It is further submitted that by virtue of
interim order dated 06.12.2000 passed by the High
Court in OP No. 30181 of 2000 filed by Adivasi
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Vikasana Pravarthaka Samithy, possession cannot be
delivered to the respondents. There being no
challenge to the vesting under Act, 2003, learned
Single Judge could not have been directed for payment
of compensation.
5. Learned counsel appearing for the respondents,
Shri Kuriakose Varghese refuting the submissions of
the learned senior counsel for the appellants
contends that right of possession is a crystallised
right. When it became impossible for the State to
evict Adivasis, who were occupying the land, the
respondents were left with no other option but to
accept the compensation in lieu of their valuable
land. The action of non-restoration of the land by
the State was in the teeth of Section 8(3) of the
Act, 1971. The judgment delivered by learned Single
Judge has rightly recognised the legitimate right of
the respondents. The judgment of the High Court
dated 10.02.1998 in favour of the respondents being
prior in time to Act, 2003, the valid and just
compensation claim of the respondents could be
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negated. In any event, even if notification dated
19.01.2007 published on 12.03.2007 has been validly
passed, the same cannot alter the respondents’ right
to claim compensation for the land, which could not
be restored by the State. It is further submitted
that Act, 2003 is not applicable in the facts of the
present case. It is submitted that the land in
question does not fall in the definition of
ecologically fragile lands as given in Section 2(b)
(i) of Act, 2003. The land is not a fragile land
rather it was land, which was cultivated with
cardamom and pepper. The land which is under
cultivation would not qualify as forest land and,
therefore, could not have declared as ecologically
fragile land under Section 2(b)(i). The custodian
having violated his duty as entrusted under Section 8
of Act, 1971, there was denial of rightful claim of
the appellant for enjoyment of their property for a
period of 45 years. It is submitted that even the
compensation assessed by Tehsildar which was offered
was also a meagre compensation.
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6. We have considered the submissions of the learned
counsel for the parties and have perused the records.
7. From the facts noticed above, it is undisputed
that the subject land, which was claimed to be vested
with the Government under Act, 1971 was not
ultimately accepted and Kerala High Court allowed the
objection of the land owners declaring that land is
not covered under the Act, 1971 and has been exempted
from Act, 1971. In paragraph 18 of the judgment,
following was held by the High Court:-
“18. XXXXXXXXXXXXXXXXXXXX
……………….They have pleaded
and proved that the lands in question are
exempted from the provisions of Act 26 of
1971. They have proved cultivation and
that the area cultivated with plantation
crops cannot be forest. The appellants
have proved positively their case as on
the appointed day.”
8. The order of the Forest Tribunal was set aside.
Result of the judgment of the High Court was that the
respondents were entitled for immediate restoration
of their land. Further, there is no dispute that
land could not be restored to the respondents and
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some alternative proposals were submitted including
allotment of alternative land at three different
places. Allotment of alternative land was not
possible as was communicated by Forest authorities.
Divisional Forest Officer had informed the
Conservator of Forests that owners suggested that
they are prepared to accept the compensation for the
land. The High Court informed that a communication
has been received from the Tehsildar of the District
Collector, Wayanad where Tehsildar has assessed the
value of the land as Rs. 1000/- per cent covered by
O.A. No. 67 of 1976 and Rs. 800/- per cent of the
land covered by O.A. No.68 of 1975. The learned
Single Judge, thus, allowed the writ petition
directing payment of compensation as per computation
by the Tehsildar.
9. We need now to consider the consequence of
subject land being notified under Act, 2003. Under
Section 2(b), “ecologically fragile lands” has been
defined. As per Section 3, ecologically fragile land
is to vest in the Government. Section 3 is as
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follows:-
“3. Ecologically fragile land to vest in
Government: – (1) Notwithstanding anything
contained in any other law for the time
being in force, or in any judgment, decree
or order of any Court or Tribunal or in
any custom, contract or other documents,
with effect from the date of commencement
of this Act, the ownership and possession
of all ecologically fragile lands held by
any person or any other form of right over
them, shall stand transferred to and
vested in the Government free from all
encumbrances and the right, title and
interest of the owner or any other person
thereon shall stand extinguished from the
said date.
(2) The lands vested in the Government
under sub-section (1) shall be notified in
the Gazette and the owner shall be
informed in writing by the custodian and
the notification shall be placed before
the Advisory Committee constituted under
section 15 for perusal.”
10. Section 4 further empowers the Government to
declare ecologically fragile land. There is no
dispute in the present case that a notification has
already been issued notifying the subject land as
ecologically fragile land vide notification published
on 12.03.2007. Although, learned counsel for the
respondents contend that subject land is not
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ecologically fragile land and is not covered by
definition of forest land under Act, 2003 but in view
of the fact that the notification dated 12.03.2007
being not under challenge, we need not dwell on the
question any further. In these proceedings, it has
been submitted by the respondents that neither they
are challenging the validity of vires of Act, 2003
nor they are challenging the notification dated
12.03.2007. We, thus, have no option but to accept
that subject land is ecologically fragile land and is
now vested in the Government.
11. Learned senior counsel for the appellant is also
right in his submission that as per Section 8 of the
Act, 2003 in respect of land, which is vested in the
Government under Section 3(1) of The Act, 2003, no
compensation is payable. The present is a case where
the respondents claim is not based on any
compensation under the Act, 2003. The learned Single
Judge directed for payment of compensation to the
respondents in view of adjudication under Act, 1971
where it was held after prolonged litigation that
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land is not covered by Act, 1971 and the respondents
are the owner of the land, entitled to restoration of
possession to the respondents. The State being the
custodian having not been able to restore the
possession, two alternatives were suggested by Forest
Officer themselves, first, of allotment of
alternative land and second for payment of
compensation. The valuation of the land was done by
the Tehsildar in the above context.
12. It is also relevant to notice that the learned
Single Judge directed for compensation as an
alternative for not being able to restore the
possession to the respondents. The very same land
having been declared as ecologically fragile land
under Act, 2003, the right and entitlement of the
respondents to the land is lost in view of Section 3
of Act, 2003 as extracted above. But right on land
lost by the respondents under Act, 2003 shall in no
manner wipe out their right to enjoy the possession
and yield of the land during the period prior to 2003
enactment, which right was held to be established by
the High Court vide its judgment dated 10.02.1998 as
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noticed above. Due to the claim of the State that
subject land vests in the Government under Act, 1971,
the respondents were deprived of the possession and
enjoyment of land. After 1971, they were kept out of
possession of the property and denied the enjoyment
of land. It is just and proper that even if the
respondents are not compensated for the value of the
land, they need to be compensated for the benefits
arisen out of the lands for the period they were kept
out of possession by action of the respondents,
treating it to be vested land under Act, 1971, which
did not find favour by the High Court.
13. On our enquiry from learned counsel for the
parties, as to whether there are any material on
record to determine the computation of yield and
benefits arising of the land, both the counsel have
very candidly admitted that there are no material on
the record to determine the benefits arising out of
the land during the period the respondents were
deprived the enjoyment of the possession. As noted
above, the litigation with regard to said land has
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continued for at-least for last 45 years and we are
of the view that in the facts of the present case,
the parties need not to be relegated to any other
Forum for determination of compensation with regard
to benefits of the land to which they were entitled
during the period they were deprived of the
possession.
14. We are of the view that the ends of justice be
met by allowing the claim of compensation to the
respondents to the extent of 50% of value of the land
as computed by Tehsildar and noted in the judgment of
learned Single Judge. We, thus, determine the
compensation to be paid to the respondents @50% of
the value computed by the Tehsildar as the value of
the land which would be payable to the respondents.
The judgment of the learned Single Judge and the
Division Bench of the Kerala High Court is modified
to the above extent. We direct that 50% of
compensation as directed by learned Single Judge in
its judgment dated 19.01.2007 shall be paid to the
respondents within a period of three months from
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today failing which the respondents shall be entitled
to receive the payment with interest @7% p.a. The
appeal is partly allowed to the above extent.
Parties shall bear their own costs.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( R. SUBHASH REDDY )
………………….J.
( M.R. SHAH )
New Delhi,
February 10, 2021.
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