THE CONSERVATOR AND CUSTODIAN OF FOREST & ORS. versus SOBHA JOHN KOSHY & ANR. on 10 February 2021

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SUPREME COURT REPORTS [2021] 2 S.C.R. 94

[2021] 2 S.C.R.

ATHE CONSERVATOR AND CUSTODIAN OF FOREST & ORS.

v.

SOBHA JOHN KOSHY & ANR.

(Civil Appeal No. 414 of 2021)

BFEBRUARY 10, 2021

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Kerala Private Forest (Vesting and Assignment) Act, 1971 –s.8 – Respondents filed application in the Forest Tribunal u/s.8 forCdeclaration that the lands were not vested forest – Rejected –Eventually, High Court declared that the land did not vest in theGovt. – However, land could not be restored to respondents – Laterit was decided that instead of restoration of the land, compensationbe paid to land owners whose land could not be restored – AgreedDby respondents – Writ Petition filed by the respondents that eitherthey may be restored the original land or compensation be paid asassessed by District Tehsildar – Allowed by Single Judge – Writappeal dismissed – Held: Subject land is ecologically fragile landand is now vested in the Govt. – As per s.8, 2003 Act in respect ofland which is vested in the Govt. u/s.3(1), 2003 Act, no compensationEis payable – But the right on land lost by the respondents under2003 Act shall not wipe out their right to enjoy the possession andyield of the land prior to 2003 enactment, which right was held tobe established by the High Court – Respondents entitled tocompensation to the extent of 50% of value of the land as computedFby Tehsildar and noted in the judgment of Single Judge – KeralaForest (Vesting and Management of Ecologically Fragile Lands)Act, 2003 – ss.2(b), 3, 4, 8.

Partly allowing the appeal, the Court

HELD: 1.1 It is undisputed that the subject land, whichGwas claimed to be vested with the Government under Act, 1971was not ultimately accepted and Kerala High Court allowed theobjection of the land owners declaring that land is not coveredunder the Act, 1971 and has been exempted from Act, 1971. Theorder of the Forest Tribunal was set aside. Result of the judgment H

of the High Court was that the respondents were entitled forimmediate restoration of their land. Further, there is no disputethat land could not be restored to the respondents and somealternative proposals were submitted including allotment ofalternative land at three different places. Allotment of alternativeland was not possible as was communicated by Forest authorities.Divisional Forest Officer had informed the Conservator of Foreststhat owners suggested that they are prepared to accept thecompensation for the land. The High Court informed that acommunication has been received from the Tehsildar of theDistrict Collector, Wayanad where Tehsildar has assessed thevalue of the land as Rs. 1000/- per cent covered by O.A. No. 67of 1976 and Rs. 800/- per cent of the land covered by O.A. No.68of 1975. The Single Judge, thus, allowed the writ petition directingpayment of compensation as per computation by the Tehsildar.[Paras 7, 8][100-F-G; 101-B-D]

1.2 Under Section 2(b), Kerala Forest (Vesting andManagement of Ecologically Fragile Lands) Act, 2003“ecologically fragile lands” has been defined. As per Section 3,ecologically fragile land is to vest in the Government. Section 4further empowers the Government to declare ecologically fragileland. There is no dispute in the present case that a notificationhas already been issued notifying the subject land as ecologicallyfragile land vide notification published on 12.03.2007. Thenotification dated 12.03.2007 is not under challenge. It has beensubmitted by the respondents that neither they are challengingthe validity of vires of Act, 2003 nor they are challenging thenotification dated 12.03.2007. Thus, there is no option but toaccept that subject land is ecologically fragile land and is nowvested in the Government. As per Section 8 of the Act, 2003 inrespect of land, which is vested in the Government under Section3(1) of The Act, 2003, no compensation is payable. The presentis a case where the respondents claim is not based on anycompensation under the Act, 2003. The Single Judge directedfor payment of compensation to the respondents in view ofadjudication under Act, 1971 where it was held after prolongedlitigation that land is not covered by Act, 1971 and the respondents AB

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Aare the owner of the land, entitled to restoration of possession tothe respondents. The State being the custodian having not beenable to restore the possession, two alternatives were suggestedby Forest Officer themselves, first, of allotment of alternativeland and second for payment of compensation. The valuation ofthe land was done by the Tehsildar in the above context. TheBSingle Judge directed for compensation as an alternative for notbeing able to restore the possession to the respondents. Thevery same land having been declared as ecologically fragile landunder Act, 2003, the right and entitlement of the respondents tothe land is lost in view of Section 3 of Act, 2003. But right on landlost by the respondents under Act, 2003 shall in no manner wipeCout their right to enjoy the possession and yield of the land duringthe period prior to 2003 enactment, which right was held to beestablished by the High Court vide its judgment dated 10.02.1998.Due to the claim of the State that subject land vests in theGovernment under Act, 1971, the respondents were deprived ofDthe possession and enjoyment of land. After 1971, they were keptout of possession of the property and denied the enjoyment ofland. It is just and proper that even if the respondents are notcompensated for the value of the land, they need to becompensated for the benefits arisen out of the lands for the periodthey were kept out of possession by action of the respondents,Etreating it to be vested land under Act, 1971, which did not findfavour by the High Court. [Paras 9-12][101-D-E; 102-A-H;103-A-B]

1.3 There are no material on the record to determine thebenefits arising out of the land during the period the respondentsFwere deprived the enjoyment of the possession. The litigationwith regard to said land has continued for at-least for last 45 yearsand in the facts of the present case, the parties need not to berelegated to any other Forum for determination of compensationwith regard to benefits of the land to which they were entitledduring the period they were deprived of the possession. The endsGof justice be met by allowing the claim of compensation to therespondents to the extent of 50% of value of the land as computedby Tehsildar and noted in the judgment of learned Single Judge.The judgment of the Single Judge and the Division Bench of theKerala High Court is modified to the above extent. [Paras 13,H14][103-C-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 414 of2021.

From the Judgment and Order dated 05.06.2008 of the High Courtof Kerala at Ernakulam in W.A. No. 1757 of 2007

Pallav Shishodia, Sr. Adv. Ms. Priyanka Prakash, Ms. BeenaPrakash, G. Prakash, Kuriakose Varghese, V. Shyamohan, Surya Prakash,Ms. Sohini Chowdhury For M/S. KMNP Law, Advs. for the appearingparties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. This appeal has been filed by the Conservator and Custodianof Forest and other appellants challenging the judgment of the DivisionBench of Kerala High Court dated 05.06.2008 dismissing the writ appealfiled by the appellants. Writ Appeal was filed by the appellants questioningthe judgment of the learned Single Judge dated 19.01.2007 allowing thewrit petition filed by the respondents directing the respondents, appellantsherein, to pay to the writ petitioners compensation for the land directedto 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 otherland situate at Pannu Valley in Wayanad, State of Kerala was said to bevested in the Government under the Kerala Private Forest (Vesting andAssignment) Act, 1971 (hereinafter referred to as “Act, 1971”). Therespondents with their predecessor-in-interest filed application in theForest Tribunal under Section 8 of the Act, 1971 for declaration that thelands were not vested forest.

3.2 The Forest Tribunal rejected the claim, against which matterwas taken to the High Court, the High Court remanded the matter to theTribunal for fresh determination. After prolong litigation, ultimately byDivision Bench judgment of the Kerala High Court dated 10.02.1998,the MFA filed by the respondents was allowed by the High Court and itwas declared that land in questions are exempted from provisions of A

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AAct, 1971. The High Court also held that writ petitioners proved cultivationand that the area was cultivated with plantation and crop. The judgmentof the Forest Tribunal was set aside declaring that land not vested in theGovernment on the appointed date under Act, 1971.

3.3 After the above judgment of the High Court, it was incumbentBupon the custodian to restore back the possession of the land. Restorationof several other pockets of land which were subject matter of MFANo.934 of 1990 before the High Court were done to the owners, but theland, 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.

C3.4 On part of land, Adivasis were in possession, who could notbe dispossessed by the State. For certain period, there was interim orderoperating in favour of the Adivasis against their dispossession of theland. There were correspondences between respondents as well as StateForest Officer regarding restoration of land. A proposal was submittedby the Divisional Forest Officer to allot alternative land to the respondents,Dwhich could not be materialised. Divisional Forest Officer recommendedthat instead of restoration of the land, compensation be paid to the landowners whose land could not be restored, the respondent expressedtheir agreement to receive compensation.

3.5 A Writ Petition No. 3340 of 2004 was filed by the respondentsEin Kerala High Court. In the writ petition, it was submitted that land inquestion was valued by Tehsildar Mananthavady recommending valueof land involved in O.A. No.67 as Rs.1,000/- per cent and the land involvedin O.A. No.68 as Rs.800/- per cent. In the writ petition, writ petitionersprayed that either they may be restored the original land or they may beFpaid compensation as assessed by the District Tehsildar. The learnedSingle 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 ofopinion that in so far as the respondents are not able to restore theGland in compliance with the judgment of this Court, the petitionersare certainly entitled to compensation for the land, which is to berestored to them. Now that the Tahsildar has assessed the valueof the land which, according to him, is very reasonable comparedto the market value of the land in the area, I am of opinion that thepetitioners should be paid compensation for their land at the rateHassessed by the Tahsildar as per Ext. P10.

THE CONSERVATOR AND CUSTODIAN OF FOREST v.SOBHA JOHN KOSHY & ANR. [ASHOK BHUSHAN, J.]

Accordingly, there would be a direction to the respondents to payto the petitioners compensation for the land directed to be restoredto them as per Ext. P1 judgment of this Court in respect of thelands covered by O.A. Nos. 67 and 68 of 1975 at the rates assessedby the Tahsildar as per Ext. P10. Amounts calculated as aboveshall be disbursed to the respective petitioners within a periodfour 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 authoritiesaggrieved by the judgment filed a Writ Appeal No.1757 of 2007 beforethe Division Bench of the Kerala High Court. The writ appeal has beendismissed by the Division Bench. The Division Bench held that underSection 8 of Act, 1971, the custodian had statutory duty to restore thepossession 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 thisappeal challenging the judgment of the Division Bench.

4. Shri Pallav Shishodia, learned senior counsel appearing for theappellants submits that under Section 8(2), all the land in dispute is aecological fragile land within the meaning of Kerala Forest (Vesting andManagement of Ecologically Fragile Lands) Act, 2003 (hereinafterreferred to as “Act, 2003”). It is submitted that notification dated03.04.2007 has already been issued under Section 3 of Act, 2003 wherebythe 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 inGovernment of any ecologically fragile land or for the extinguishment ofthe 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 dated12.03.2007 by respondents, no compensation is payable by the Stateunder Section 8(2). It is submitted that prior to 2003 enactment, ordinancewas promulgated namely Kerala Forests (Vesting and Management ofEcologically Fragile Lands) Ordinance, 2000. It is further submitted thatby virtue of interim order dated 06.12.2000 passed by the High Court inOP No. 30181 of 2000 filed by Adivasi Vikasana Pravarthaka Samithy,possession cannot be delivered to the respondents. There being nochallenge to the vesting under Act, 2003, learned Single Judge could nothave been directed for payment of compensation.

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A5. Learned counsel appearing for the respondents, Shri KuriakoseVarghese refuting the submissions of the learned senior counsel for theappellants contends that right of possession is a crystallised right. Whenit became impossible for the State to evict Adivasis, who were occupyingthe land, the respondents were left with no other option but to accept thecompensation in lieu of their valuable land. The action of non-restorationBof 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 recognisedthe legitimate right of the respondents. The judgment of the High Courtdated 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 beCnegated. In any event, even if notification dated 19.01.2007 published on12.03.2007 has been validly passed, the same cannot alter therespondents’ right to claim compensation for the land, which could notbe restored by the State. It is further submitted that Act, 2003 is notapplicable in the facts of the present case. It is submitted that the land inquestion does not fall in the definition of ecologically fragile lands asDgiven in Section 2(b)(i) of Act, 2003. The land is not a fragile land ratherit was land, which was cultivated with cardamom and pepper. The landwhich 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 ofEAct, 1971, there was denial of rightful claim of the appellant for enjoymentof their property for a period of 45 years. It is submitted that even thecompensation assessed by Tehsildar which was offered was also ameagre compensation.

6. We have considered the submissions of the learned counsel forFthe parties and have perused the records.

7. From the facts noticed above, it is undisputed that the subjectland, which was claimed to be vested with the Government under Act,1971 was not ultimately accepted and Kerala High Court allowed theobjection of the land owners declaring that land is not covered under theGAct, 1971 and has been exempted from Act, 1971. In paragraph 18 ofthe judgment, following was held by the High Court:- “18. XXXXXXXXXXXXXXXXXXXX

...................They have pleaded and proved that the lands inquestion are exempted from the provisions of Act 26 of 1971.

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They have proved cultivation and that the area cultivated withplantation crops cannot be forest. The appellants have provedpositively their case as on the appointed day.”

8. The order of the Forest Tribunal was set aside. Result of thejudgment of the High Court was that the respondents were entitled forimmediate restoration of their land. Further, there is no dispute that landcould not be restored to the respondents and some alternative proposalswere submitted including allotment of alternative land at three differentplaces. Allotment of alternative land was not possible as wascommunicated by Forest authorities. Divisional Forest Officer hadinformed the Conservator of Forests that owners suggested that theyare prepared to accept the compensation for the land. The High Courtinformed that a communication has been received from the Tehsildar ofthe District Collector, Wayanad where Tehsildar has assessed the valueof the land as Rs. 1000/- per cent covered by O.A. No. 67 of 1976 andRs. 800/- per cent of the land covered by O.A. No.68 of 1975. Thelearned Single Judge, thus, allowed the writ petition directing payment ofcompensation as per computation by the Tehsildar.

9. We need now to consider the consequence of subject landbeing notified under Act, 2003. Under Section 2(b), “ecologically fragilelands” has been defined. As per Section 3, ecologically fragile land is tovest in the Government. Section 3 is as follows:-

“3. Ecologically fragile land to vest in Government: - (1)Notwithstanding anything contained in any other law for the timebeing in force, or in any judgment, decree or order of any Court orTribunal or in any custom, contract or other documents, with effectfrom the date of commencement of this Act, the ownership andpossession of all ecologically fragile lands held by any person orany other form of right over them, shall stand transferred to andvested in the Government free from all encumbrances and theright, title and interest of the owner or any other person thereonshall 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 inwriting by the custodian and the notification shall be placed beforethe Advisory Committee constituted under section 15 for perusal.”

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A10. Section 4 further empowers the Government to declareecologically fragile land. There is no dispute in the present case that anotification has already been issued notifying the subject land asecologically fragile land vide notification published on 12.03.2007.Although, learned counsel for the respondents contend that subject landis not ecologically fragile land and is not covered by definition of forestBland under Act, 2003 but in view of the fact that the notification dated12.03.2007 being not under challenge, we need not dwell on the questionany further. In these proceedings, it has been submitted by the respondentsthat neither they are challenging the validity of vires of Act, 2003 northey are challenging the notification dated 12.03.2007. We, thus, haveCno option but to accept that subject land is ecologically fragile land and isnow vested in the Government.

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11. Learned senior counsel for the appellant is also right in hissubmission 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,Dno compensation is payable. The present is a case where the respondentsclaim is not based on any compensation under the Act, 2003. The learnedSingle Judge directed for payment of compensation to the respondentsin view of adjudication under Act, 1971 where it was held after prolongedlitigation that land is not covered by Act, 1971 and the respondents arethe owner of the land, entitled to restoration of possession to theErespondents. The State being the custodian having not been able to restorethe possession, two alternatives were suggested by Forest Officerthemselves, first, of allotment of alternative land and second for paymentof compensation. The valuation of the land was done by the Tehsildar inthe above context.F

12. It is also relevant to notice that the learned Single Judge directedfor compensation as an alternative for not being able to restore thepossession to the respondents. The very same land having been declaredas ecologically fragile land under Act, 2003, the right and entitlement ofthe respondents to the land is lost in view of Section 3 of Act, 2003 asGextracted above. But right on land lost by the respondents under Act,2003 shall in no manner wipe out their right to enjoy the possession andyield of the land during the period prior to 2003 enactment, which rightwas held to be established by the High Court vide its judgment dated10.02.1998 as noticed above. Due to the claim of the State that subjectland vests in the Government under Act, 1971, the respondents wereH

deprived of the possession and enjoyment of land. After 1971, they werekept out of possession of the property and denied the enjoyment of land.It is just and proper that even if the respondents are not compensatedfor the value of the land, they need to be compensated for the benefitsarisen out of the lands for the period they were kept out of possession byaction 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 towhether there are any material on record to determine the computationof yield and benefits arising of the land, both the counsel have verycandidly admitted that there are no material on the record to determinethe benefits arising out of the land during the period the respondentswere deprived the enjoyment of the possession. As noted above, thelitigation with regard to said land has continued for at-least for last 45years and we are of the view that in the facts of the present case, theparties need not to be relegated to any other Forum for determination ofcompensation with regard to benefits of the land to which they wereentitled during the period they were deprived of the possession.

14. We are of the view that the ends of justice be met by allowingthe claim of compensation to the respondents to the extent of 50% ofvalue of the land as computed by Tehsildar and noted in the judgment oflearned Single Judge. We, thus, determine the compensation to be paidto the respondents @50% of the value computed by the Tehsildar as thevalue of the land which would be payable to the respondents. Thejudgment of the learned Single Judge and the Division Bench of theKerala High Court is modified to the above extent. We direct that 50%of compensation as directed by learned Single Judge in its judgmentdated 19.01.2007 shall be paid to the respondents within a period ofthree months from today failing which the respondents shall be entitledto receive the payment with interest @7% p.a. The appeal is partlyallowed to the above extent. Parties shall bear their own costs.

Divya Pandey

Appeal partly allowed

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