The Conservator And Custodian Of … vs Sobha John Koshy . on 10 February, 2021


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Supreme Court of India

The Conservator And Custodian Of … vs Sobha John Koshy . on 10 February, 2021

Author: 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

1
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

2
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

4
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
5
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

6
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

7
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

8
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.

9

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

11
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

12
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

13
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
14
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

15
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

16
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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