April 21, 2021
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Government denies proprietor from ownership and enjoyment of land for 45 years

The Conservator and Custodian of Forest filed an instant appeal challenging the judgement of the Division Bench of Kerala High Court, wherein the Court had upheld the judgement of Single Judge directing the appellants to pay compensation to the petitioners. The 3-Judge Bench comprising of R. Subhash Reddy, Ashok Bhushan 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.”

Background:

Under the Kerala Private Forest (Vesting and Assignment) Act, 1971, the disputed land was said to be vested in the government. In compliance with Section 8 of the Act, 1971, the respondents filed an application in the Forest Tribunal for declaring 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 the authority upon the State to restore possession of the lands.

However, the said lands could not be restored because some Adivasis were in possession, who could not be disinherited by the State. Hence, the parties entered into a compromise that instead of restoring the land, compensation will be paid to the land owners whose land could not be restored. The lands in question were valued by the Tehsildar as 1000 Indian rupees per cent for O.A. No. 67 of 1976 and 800 Indian rupees 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 there on 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 be vested to the 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 stood vested in the government under Section 3(1). However, the Bench suggested that the right on land lost by the respondents should in no manner deprive their right to enjoy the possession and yield of the land during the period prior to the 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.”

Decision

The Bench held that it was just and proper that even though the respondents were not compensated for the value of the land, they needed to be compensated for the benefits arising from lands for the time 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.

The arguing counsel for the private Respondent was Kuriakose Varghese on behalf of KMNP Law AOR and the State of Kerala was represented by Senior Advocate Pallav Sisodia.

Pic Courtesy: google/ images are subjected to copyright

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