10 Feb 2121

Right on land lost under Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 shall not wipe out the right to enjoy the possession and yield of the land during the period before its enactment - Supreme Court of india

Case : The Conservator and Custodian of Forest & Ors. v. Sobha John Koshy & Anr. Civil Appeal No. 414 of 2021

Court : Supreme Court of India

Bench : Justice Ashok Bhushan, Justice R. Subhash Reddy and M.R. Shah

Decided on : 10 Feb 2121

Relevant Statutes

Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971

Sections 2(b), 3, 4 and 8 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003

Brief Facts and Procedural History

1. The subject matter land along with another land was said to be vested in the Government under the Kerala Private Forest (Vesting and Assignment) Act, 1971. The respondents with their predecessor-in-interest filed an application in the Forest Tribunal under Section 8 of the said Act for a declaration that the lands were not vested in the government.

2. The Forest Tribunal rejected the claim, against which the matter was taken to the High Court; the High Court remanded the matter to the Tribunal for fresh determination.

3. After prolonged litigation, the Division Bench of the Kerala High Court declared that lands in question are exempted from the provisions of Kerala Private Forest (Vesting and Assignment) Act, 1971. It was 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 was not vested in the Government.

4. Adivasis possessed the land, and could not be dispossessed by the State. For a certain period, an interim order operated in favour of the Adivasis against their dispossession of the land. There were correspondences between respondents as well as the State Forest Officer regarding the restoration of the land. The Divisional Forest Officer submitted a proposal to allot alternative land to the respondents, which could not be materialized. Divisional Forest Officer recommended that instead of restoration of the land, compensation be paid to the landowners whose land could not be restored, to which the respondent expressed their agreement.

5. The respondents filed a writ petition in Kerala High Court and submitted that land in question was valued by Tehsildar in one application as ₹1,000/- per cent and the land involved in the other application as ₹800/- per cent. They prayed 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 favouring payment of compensation.

6. The Conservator of Forest and other State authorities aggrieved by the judgment filed a Writ Appeal before the Division Bench of the Kerala High Court. The writ appeal was dismissed by the Division Bench while holding that under Section 8 of Kerala Private Forest (Vesting and Assignment) Act, 1971, the custodian had a statutory duty to restore the possession of such land based on the order, which was not done, thus violating the statutory duty.

7. The Conservator and Custodian of Forest and other State respondents filed the present appeal challenging the judgment of the Division Bench.

Issue of the Case

Whether the respondents are entitled to compensation for the subject matter land?

The Observations of the Court

The Honourable Supreme Court of India observed that:

1. Under Section 2(b) of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, “ecologically fragile lands” have been defined. As per Section 3, ecologically fragile land is to vest in the Government. Section 4 empowers the Government to declare ecologically fragile land. In the present case, a notification had been issued notifying the subject land as ecologically fragile land in 2007.

2. As per Section 8 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 in respect of land, which is vested in the Government under Section 3(1) of the said Act, no compensation is payable. In the present case, the respondents’ claim is not based on any compensation under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. The learned Single Judge directed for payment of compensation under Kerala Private Forest (Vesting and Assignment) Act, 1971 where it was held that land is not covered by the said Act and the respondents are the owner of the land, entitled to restoration of possession to the respondents. Compensation was directed as an alternative for not being able to restore the possession to the respondents. The same land having been declared as ecologically fragile land under Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, the right and entitlement of the respondents to the land was lost because of Section 3 of the Act.

3. But right on land lost by the respondents under Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 shall not wipe out their right to enjoy the possession and yield of the land during the period before 2003 enactment, which right was held to be established by the Division Bench of the High Court in 1998.

4. Due to the claim of the State that subject land vests in the Government under Kerala Private Forest (Vesting and Assignment) 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 treating it to be vested land under the said Act.

5. There is no material on the record to determine the benefits arising out of the land during the period the respondents have been deprived of the enjoyment of the possession.

6. The litigation concerning said land continued for at least 45 years and the parties need not be referred to any other Forum for determination of compensation concerning benefits of the land to which the respondents were entitled during the period they were deprived of the possession.

The Decision Held by the Court

The Honourable Supreme Court partly allowed the appeal and held that to meet the ends of justice, compensation at 50% of the value of the land computed by the Tehsildar would be payable to the respondents within three months from the date of pronouncement of the judgment failing which the respondents shall be entitled to receive the payment with interest at 7% per annum.

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