Case: THE CONSERVATOR AND CUSTODIAN OF FOREST &amp; ORS Vs. SOBHA JOHN KOSHY &amp; ANR

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 learned Single Judge, thus, allowed the writ petition directing payment of compensation as per computation by the Tehsildar. 9. We need now to consider the consequence of subject land being notified under Act, 2003. Under Section 2(b), ecologically fragile lands has been defined. As per Section 3, ecologically fragile land is to vest 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 time being in force, or in any judgment, decree or order of any Court or Tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall 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 in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under section 15 for perusal. 10. 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. Although, learned counsel for the respondents contend that subject land is not ecologically fragile land and is not covered by definition of forest land under Act, 2003 but in view of the fact that the notification dated 12.03.2007 being not under challenge, we need not dwell on the question any further. In these proceedings, 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. We, thus, have no option but to accept that subject land is ecologically fragile land and is now vested in the Government. 11. Learned senior counsel for the appellant is also 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 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. 12. 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. 13. On our enquiry from learned counsel for the parties, as to whether there are any material on record to determine the computation of yield and benefits arising of the land, both the counsel have very candidly admitted that 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. As noted above, the litigation with regard to said land has continued for at-least for last 45 years and we are of the view that 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. 14. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. From the facts noticed above, 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, 1971.8. 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 learned Single Judge, thus, allowed the writ petition directing payment of compensation as per computation by the Tehsildar.As per Section 3, ecologically fragile land is to vest in the Government.10. 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. Although, learned counsel for the respondents contend that subject land is not ecologically fragile land and is not covered by definition of forest land under Act, 2003 but in view of the fact that the notification dated 12.03.2007 being not under challenge, we need not dwell on the question any further.We, thus, have no option but to accept that subject land is ecologically fragile land and is now vested in the Government.11. Learned senior counsel for the appellant is also 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 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.12. 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.13. On our enquiry from learned counsel for the parties, as to whether there are any material on record to determine the computation of yield and benefits arising of the land, both the counsel have very candidly admitted that 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. As noted above, the litigation with regard to said land has continued for at-least for last 45 years and we are of the view that 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.14. 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.