Supreme Court: The instant appeal was filed by the Conservator and Custodian of Forest challenging the judgment of Division Bench of Kerala High Court, wherein the Court had upheld the judgment of Single Judge directing the appellants to pay compensation to the petitioners. The 3-Judge Bench comprising of Ashok Bhushan*, R. Subhash Reddy and M.R. Shah, JJ., held that,
“Right on the land lost by the respondents under Act, 2003 shall in no manner wipe out their right to enjoy possession and yield of the land during the period prior to 2003 enactment.”
The disputed land was said to be vested in government under Kerala Private Forest (Vesting and Assignment) Act, 1971. The respondents filed application in the Forest Tribunal under Section 8 of the Act, 1971 for declaration that the lands were not vested forest. Pursuant to which it was declared that lands in question were exempted from provisions of Act, 1971. On appeal, the High Court held that it was incumbent upon the State to restore possession of the lands.
However, the said lands could not be restored due to the reason that some Adivasis were in possession, who could not be dispossessed by the State. Consequently, the parties entered into a compromise that instead of restoration of the land, compensation be paid to the land owners whose land could not be restored. The lands in question were valued by the Tehsildar as Rs. 1000 per cent for O.A. No. 67 of 1976 and Rs. 800 per cent for the land covered by O.A. No.68 of 1975.
The appellants submitted that under Section 8(2), all the lands in dispute were ecological fragile land within the meaning of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, which had provided that no compensation should 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.
Observations by the Court
The Bench observed that according to Section 3 of the Act, 2003 all ecologically fragile lands were to vest in government. Section 4 of the said Act had empowered government to declare ecologically fragile land. Noticing that,
“Neither the validity of vires of Act, 2003 nor the notification dated 12-03-2007 was challenged, therefore, the Bench accepted that subject land was ecologically fragile land and the same stand vested in government.”
As per Section 8 of the Act, 2003 no compensation was payable for the land which stand vested in government under Section 3(1). However, the Bench opined that right on land lost by the respondents should in
no manner wipe out their right to enjoy the possession and yield of the land during the period prior to 2003 enactment.
“Due to the claim of State that subject land vests in government under Act, 1971, the respondents were deprived of possession and enjoyment of land for 45 years.”
Hence, the Bench held that it was just and proper that even if the respondents were not compensated for the value of the land, they need to be compensated for the benefits arising out of lands for the period they were kept out of possession by action of the respondents, treating it to be vested land under Act, 1971.
Consequently, the respondents were granted compensation to the extent of 50% of value of the land as computed by the Tehsildar which was to be paid within three months, further the interest of 7 % per annum was awarded in case of default.
[Conservator and Custodian of Forest v. Sobha John Koshy, 2021 SCC OnLine SC 76, decided on 10-02-2021]
Kamini Sharma, Editorial Assistant has put this report together
*Judgment by: Justice Ashok Bhushan
Appearances before the Court by
For appellant: Senior Advocate Pallav Shishodia
For respondent: Advocate Kuriakose Varghese