The Conservator and Custodian of Forest & Ors. vs Sobha John Koshy & Anr.

HELD: 1.1 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. 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 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 Single Judge, thus, allowed the writ petition directing payment 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 and Management 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 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. The notification dated 12.03.2007 is not under challenge. 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. Thus, there is no option but to accept that subject land is ecologically fragile land and is now vested in the Government. 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 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 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. The 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. 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. 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. [Paras 9-12][101-D-E; 102-A-H; 103-A-B]

1.3 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. The litigation with regard to said land has continued for at-least for last 45 years and 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. 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. The judgment of the Single Judge and the Division Bench of the Kerala High Court is modified to the above extent. [Paras 13, 14][103-C-F]