Under Section 8(2), all the land in dispute is an ecological fragile land within the meaning of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) 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. (Para 4)
The Conservator and Custodian of Forest & Ors. V/S Sobha John Koshy & Anr.
Civil Appeal No.414 of 2021 (arising out of SLP(C) Nos.27651 of 2008)
Decided on 10th February, 2021
Counsel for Appellants: Shri Pallav Shishodia
Counsel for Respondents: Shri Kuriakose Varghese
A Three Judge bench of the Supreme Court consisting of Justice Ashok Bhushan, Justice R. Subhash and Justice Reddy M.R. Shah reached at a fair compromise benefitting both the sides to settle the dispute regarding forest land.
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. The judgment of the learned Single Judge dated 19.01.2007 allowing the writ petition filed by the respondents directing the respondents, appellants herein, to pay to the writ petitioners compensation for the land directed to be restored to them by the earlier judgment of the High Court.
Learned senior counsel appearing for the appellants submits (i) That under Section 8(2), all the land in dispute is a ecological fragile land within the meaning of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as “Act, 2003”). (ii) 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). (iii) 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 Vikasana Pravarthaka Samithy, possession cannot be delivered to the respondents.
Learned counsel appearing for the respondents while refuting the submissions of the appellants contends that right of possession is a crystallised right. He also submitted that: (i) 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. (ii) 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. (iii) 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). (iv) That 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.
This Court was of the view that Learned senior counsel for the appellant is 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.
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 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. (Para 12)
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 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. (Para 14)
The appeal played a major part in reducing the compensation payable by the state to the Respondent.
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Risikesh Dhanaki
