Being aware of the fact that admissions cannot be made from students not allotted by the third Respondent, the College admitted 132 students on its own. Thereafter, the College permitted the students to continue their studies in spite of the direction by the Medical Council of India to discharge the students not being stayed. Intentional violation of the Regulations by the Petitioner-College while granting admission to 132 students in the first year MBBS course for the academic year 2017-2018 cannot be condoned. The Petitioner-College is directed to deposit an amount of Rupees Five Crores in the Registry of this Court within a period of 8 weeks from today. The Petitioners are directed not to recover the amount from the students in any manner whatsoever. We direct the National Medical Commission to constitute a Trust which shall include the Accountant General of the State of Uttar Pradesh, an eminent educationist and a representative of the State of Uttar Pradesh as Members of the Trust. The Trust constituted to manage the amount of Rupees Five Crores to be deposited by the Petitioner-College shall extend financial assistance to needy students seeking admission to medical colleges in the State of Uttar Pradesh. An Action Taken Report along with the copy of the Trust-Deed shall be filed by the National Medical Commission within a period of 12 weeks from today.

Being aware of the fact that admissions cannot be  made from students not allotted by the third Respondent, the  College admitted 132 students on its own. Thereafter, the  College permitted the students to continue their studies in  spite of the direction by the Medical Council of India to  discharge the students not being stayed. Intentional violation  of the Regulations by the Petitioner-College while granting  admission to 132 students in the first year MBBS course for  the academic year 2017-2018 cannot be condoned. The  Petitioner-College is directed to deposit an amount of Rupees  Five Crores in the Registry of this Court within a period of 8  weeks from today. The Petitioners are directed not to recover  the amount from the students in any manner whatsoever.  We direct the National Medical Commission to constitute a  Trust which shall include the Accountant General of the State  of Uttar Pradesh, an eminent educationist and a  representative of the State of Uttar Pradesh as Members of  the Trust. The Trust constituted to manage the amount of  Rupees Five Crores to be deposited by the Petitioner-College  shall extend financial assistance to needy students seeking  admission to medical colleges in the State of Uttar Pradesh.  An Action Taken Report along with the copy of the Trust-Deed  shall be filed by the National Medical Commission within a  period of 12 weeks from today.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (C) No.40 of 2018

Saraswati Educational Charitable Trust & Anr.

.... Petitioners (s)

Versus

Union of India & Ors.

…. Respondent (s)

With

Writ Petition (C) No.291 of 2019

J U D G M E N T

L. NAGESWARA RAO, J.

1. Writ Petition (C) No.40 of 2018 has been filed by

Saraswati Educational Charitable Trust challenging the notice

dated 29th September, 2017, issued by the second

Respondent-Medical Council of India by which the Saraswati

Medical College (hereinafter referred to as “the College”) was

directed to discharge 132 out of 150 students admitted in the

first year Bachelor of Medicine, Bachelor of Surgery (MBBS)

course for the academic year 2017-2018.

1 | P a g e

2. Writ Petition (C) No.291 of 2019 has been filed by 71

students who have been admitted in first year MBBS course

for the academic year 2017-2018 in Saraswati Medical

College to permit them to continue with their studies and to

direct the Registrar, Uttar Pradesh Medical Council, the

seventh Respondent herein to declare their results of the first

year MBBS course.

3. Saraswati Medical College was established by Saraswati

Educational Charitable Trust in the year 2016. The College

applied for grant of renewal of permission for admission of

150 students for the academic year 2017-2018. An

inspection was conducted in November, 2016 followed by a

second surprise inspection by the assessing team on 21st and

22nd November, 2016. Renewal of permission was not

granted by an order dated 10th August, 2017 which was

challenged by the Petitioner in Writ Petition No.515 of 2017

before this Court. This Court by its judgment dated 1st

September, 2017 directed the Respondents therein to permit

the College to take part in the counselling process for the

year 2017-2018. The cut-off date for completion of

admission in respect of the College was extended till 5th

September, 2017. The Respondents were directed to make

available students willing to take admission in the College

2 | P a g e

through central counselling in order of merit. The Petitioner

No.2 requested the Director General of Medical Education

and Training- Respondent No.3 herein to provide a list of

students from the National Eligibility-cum-Entrance Test

(NEET), 2017 merit list to enable the College to make

admission before 5th September, 2017. An email was sent by

the College to the third Respondent with the same request

for providing the list of students at 6:41 p.m. on 1st

September, 2017. On 4th September, 2017, the Management

of the College reiterated the request of allotment of students

for admission into first year MBBS course.

4. The third Respondent informed all eligible students

about the order passed by this Court in Writ Petition No.515

of 2017 and asked them to apply/register themselves for

admission to first year MBBS course in the College from 4th

September, 2017, 6:00 p.m. to 5th September, 2017, 1:00

p.m. 735 students applied/registered within the time

schedule for admission to 150 students in the College. On 5th

September, 2017, the third Respondent forwarded a list of

150 students on the basis of their merit amongst 735

students. Only 9 out of 150 students reported and

completed their admission formalities by 7:00 p.m. on 5th

September, 2017, according to the College. A letter was

3 | P a g e

written by the College at 7:00 p.m. on 5th September, 2017 to

the third Respondent requesting the third Respondent to

provide students from the list of 735 students. Without

waiting for a response from the third Respondent, at 7:32

p.m. on 5th September, 2017 the College issued an urgent

notice informing all the 735 candidates who opted for

admission pursuant to the notice issued by third Respondent

on 4th September, 2017 to avail the opportunity of admission

in the College. It was stated in the said notice that

admissions will be made in the order of merit from amongst

735 students and the admissions would be completed by

11:59 p.m. on 5th September, 2017. In the meanwhile, 9

more students from the original list of 150 students sent by

the third Respondent were admitted by the College. The

College filled up 132 seats on 05.09.2017. On receipt of

information about the admission of 132 students by the

Petitioner-College on its own without being recommended by

the third Respondent, the Medical Council of India by a letter

dated 29th September, 2017 directed the Principal, Saraswati

Medical College to discharge the 132 students who were

admitted in violation of the Medical Council of India

Regulations on Graduate Medical Education, 1997

(hereinafter, ‘the Regulations’). This Writ Petition has been

4 | P a g e

filed challenging the letter dated 29.09.2017 in which notice

was issued on 25.01.2018. The students continued to study

and were permitted to take the examinations for the first

year MBBS course by the Chhatrapati Shahu Ji Maharaj

University, Kanpur, Uttar Pradesh.

5. Thereafter, this Court by an order dated 22th July, 2019

directed the result of the first year MBBS course to be

declared provisionally, subject to the outcome of the Writ

Petition. It was made clear in the said order that the

students shall not claim any equities on the declaration of

the result. I.A. No.14176 of 2021 has been filed by the

students seeking a direction to permit them to appear in the

second year MBBS examinations.

6. We have heard Mr. P.S. Patwalia, Mr. Ranjit Kumar and

Mr. Gaurav Bhatia, learned Senior Counsel appearing for the

College, Mr. Neeraj Kishan Kaul and Mr. Nikhil Nayyar,

learned Senior Counsel, Mr. Trideep Pais, learned counsel for

the students and Mr. Gaurav Sharma, learned counsel for the

Medical Council of India. The contention of the College is

that 132 students were admitted on 5th September, 2017

from the list of 735 candidates who have applied pursuant to

a notice dated 4th September, 2017, strictly on the basis of

merit amongst those who approached the College under

5 | P a g e

extraordinary circumstances. It was argued on behalf of the

College that the third Respondent was lethargic in not

allotting sufficient number of students for admission to first

year MBBS 2017-2018 till 4th September, 2017 though he was

informed about the order passed by this Court on 1st

September, 2017 itself. On 5th September, 2017, the third

Respondent allotted only 150 students out of whom initially 9

and thereafter 9 students took admission. The third

Respondent was informed about the fact that only a few

students took admission. However, the third Respondent did

not allot students from the list of 735 students. Having no

other alternative, the College made admissions from the list

of 735 candidates who have applied pursuant to the notice

issued by the third Respondent on 4th September, 2017. It

was also argued on behalf of the College that the admissions

were based on merit of the candidates who have applied and

till date there is no complaint from any student that he/she

was ignored in spite of being more meritorious than the

students who were admitted.

7. The students pleaded ignorance about any illegality or

irregularity in the matter of their admission to the first year

MBBS course for the year 2017-2018. They responded to the

notice issued by the third Respondent on 4th September,

6 | P a g e

2017. They were hopefully waiting for their admission, in

case the 150 students who have been allotted to the College

do not join. Only 18 from the list of 150 students sent by the

third Respondent joined the College. Pursuant to the urgent

notice, they participated in the selection process conducted

by the College and were admitted on the last date fixed by

this Court i.e. 5th September, 2017. As they cannot be held

responsible for any violation of the Regulations, if any, they

request this Court to permit them to complete the course as

they are all NEET qualified candidates and their names were

in the list of 735 students who applied pursuant to the notice

issued by third Respondent on 4th September, 2017.

8. The learned counsel for the Medical Council of India

relied upon Regulation 5 A of the Medical Council Regulations

on Graduate Medical Education, 1997 to argue that all

admissions to the MBBS course shall be on the basis of the

merit list of the NEET. Admissions shall be made from the list

sent by the Director General Medical Education on the basis

of ranking of the students in NEET. The College can make

admissions of students allotted by the Director General

Medical Education. In case students from the list of 150 did

not join before the last date, the College should have

approached this Court for extension of time and for a

7 | P a g e

direction to the Director General Medical Education to allot

more students. It was argued on behalf of the Medical

Council of India that the students who were admitted

contrary to the Regulations are not entitled to claim any

equity and the College which acted in blatant violation of the

Regulation is liable to be penalized suitably.

9. Regulation 5 A of the Regulations provides for

counselling for admission to MBBS course in all medical

educational institutions on the basis of merit list of NEET.

According to the said Regulations, no admissions can be

made by the Petitioner-College on its own. (See: Modern

Dental College and Research Centre & Ors. v. State of

Madhya Pradesh & Ors.

1 and State of Maharashtra and

Others v. D.Y. Patil Vidyapeeth and Others

2

). By an

order dated 22nd September, 2016 in State of Madhya

Pradesh v. Jainarayan Chouksey & Ors.

3

, this Court held

that all admissions to medical colleges shall be made only as

per the centralized counselling done by the State

Governments.

10. The College ought not to have admitted 132 students

by conducting a selection on its own without requesting the

1 (2016) 7 SCC 353

2 (2016) 9 SCC 401

3 (2016) 9 SCC 412

8 | P a g e

third Respondent to send more candidates. The third

Respondent cannot be blamed for any delay on his part in

carrying out the directions issued by this Court by its order

dated 1st September, 2017 in Writ Petition No.515 of 2017.

The College sent an email to the third Respondent at 6:32

p.m. on 1st September, 2017. Admittedly, 2nd and 3rd

September were not working days. The third Respondent

acted swiftly on 4th September 2017 and sought for

applications from interested students for admission to the

college in the first-year MBBS course. 735 students made

applications. 150 meritorious students out of 735 were

allotted to the College for admission to the first-year MBBS

course for the academic year 2017-2018. Only 9 out of 150

students, according to the College took admission. The third

Respondent cannot be said to have been negligent. On the

other hand, the College ought not to have issued a notice at

7:30 p.m. on 5th September, 2017 and admitted 132 students

in four hours. Admissions were made by the College from

students who have approached the college after 7:30 p.m. on

5

th September, 2017. It is very difficult to accept the

submission on behalf of the College that students who were

not in the list of 150 students, sent by the Director General

Medical Education were all waiting for their admission after

9 | P a g e

7.30 p.m. on 5th September 2017. We reject the submission

of the College that there was no other alternative, except to

make admission from the list of 735 students who have

applied pursuant to the notice dated 4th September, 2017

issued by the third Respondent.

11. The students who have secured admission cannot be

said to be innocent as they knew fully well that their names

were not recommended by the Director General Medical

Education. We also do not agree that students and their

parents were not aware that their admissions in College are

contrary to the Regulations. In spite of the letter dated 29th

September, 2017 issued by the Medical Council of India, the

College did not discharge the students. The said direction

issued by the Medical Council of India was not stayed by this

Court. In spite of this, the students continued their first

year MBBS course and managed to write the first year MBBS

course examinations after being permitted by the University.

Thereafter, they approached this Court for declaration of

their results for the first year MBBS course examinations

which was granted. 6 students out of 132 students failed in

their first year examination. At present, 126 students have

completed their second year MBBS course and are seeking

10 | P a g e

permission to appear and write the examination for second

year MBBS.

12. The admission of 132 students in the College for the

academic year 2017-2018 being completely contrary to the

Regulations, the Writ Petitions are liable to be dismissed.

However, taking note of the fact that the students have

completed the second year MBBS course, cancelling their

admissions at this stage would not serve any useful purpose.

The students who joined the College knowing fully well that

their admissions are contrary to the Regulations are directed

to do community service for a period of two years after

completing their MBBS course. The National Medical

Commission shall decide the details and workout the

modalities of the community service to be rendered by the

132 students. The Respondent No.6-University is directed to

conduct the second year MBBS examination for 126 students

admitted in the Petitioner-College and who completed their

second year course at the earliest and declare their results.

They shall be permitted to complete the MBBS course. This

direction is issued only to save the students from losing three

academic years in the peculiar facts and circumstances of

this case and shall not be treated as a precedent.

11 | P a g e

13. Being aware of the fact that admissions cannot be

made from students not allotted by the third Respondent, the

College admitted 132 students on its own. Thereafter, the

College permitted the students to continue their studies in

spite of the direction by the Medical Council of India to

discharge the students not being stayed. Intentional violation

of the Regulations by the Petitioner-College while granting

admission to 132 students in the first year MBBS course for

the academic year 2017-2018 cannot be condoned. The

Petitioner-College is directed to deposit an amount of Rupees

Five Crores in the Registry of this Court within a period of 8

weeks from today. The Petitioners are directed not to recover

the amount from the students in any manner whatsoever.

We direct the National Medical Commission to constitute a

Trust which shall include the Accountant General of the State

of Uttar Pradesh, an eminent educationist and a

representative of the State of Uttar Pradesh as Members of

the Trust. The Trust constituted to manage the amount of

Rupees Five Crores to be deposited by the Petitioner-College

shall extend financial assistance to needy students seeking

admission to medical colleges in the State of Uttar Pradesh.

An Action Taken Report along with the copy of the Trust-Deed

12 | P a g e

shall be filed by the National Medical Commission within a

period of 12 weeks from today.

14. The Writ Petitions are disposed of with the above

directions.

.................................J.

 [L. NAGESWARA RAO]

 ...............................J

.

 [S. RAVINDRA BHAT]

New Delhi,

February 24, 2021.

13 | P a g e

Freedom Fighter’s Pension = Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right.

Freedom Fighter’s Pension = Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension  Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.680 OF 2021

(Arising out of SLP (C) No.5343 of 2019)

Union of India ....Appellant(s)

 vs.

A. Alagam Perumal Kone & Others ....Respondent(s)

J U D G M E N T

R.SUBHASH REDDY,J.

1. Leave granted.

2. This appeal is filed by the Union of India,

aggrieved by the judgment and order dated 29.08.2018

passed in W.A.(MD) NO. 907 of 2018 by Madras High Court

(Madurai Bench), whereby, the appeal of the appellant

is dismissed confirming the order of the learned Single

Judge, passed in W.P.(MD) NO. 17290 of 2017.

1

C.A.@SLP(C)No.5343/2019

3. By Order dated 26.10.2017, passed in W.P.(MD)

No.17290 of 2017, filed by the 1st Respondent herein,

while disposing of the writ petition, directions were

issued to the appellant herein, to grant Freedom

Fighter’s Pension to the 1st Respondent under

Swatantrata Sainik Samman Pension Scheme and pass

suitable orders within a period of four weeks from the

date of receipt of the order.

4. Aggrieved by the order of the learned Single

Judge, the appellant herein, preferred writ appeal

under Clause 15 of the Letters Patent and the same is

dismissed by the impugned order.

5. The Respondent No.1 herein, has submitted his

first application for grant of pension under

Swatantrata Sainik Samman Pension Scheme on 10.04.1997,

which was forwarded by the 2nd Respondent through 3rd

Respondent. In the said communication, which was

received by the appellant on 26.07.2001, it was

observed that the application was not properly filled

up and the certificate issued by one of the certifiers

was vague. Non-Availability of Records Certificate

(NARC) was not produced from the competent authority,

2

C.A.@SLP(C)No.5343/2019

as per the scheme. In absence of any categorical

recommendation made by the 2nd Respondent, the

application made by the 1st Respondent, at first

instance, on 10.04.1997, was rejected by the appellant

vide its letter dated 27.02.2004. Thereafter, for about

a period of 13 years, no steps have been taken by the

1

st Respondent and on 29.08.2017, he again sent a

communication to the appellant herein, for grant of

pension from 2011 under Swatantrata Sainik Samman

Pension Scheme, stating that he was imprisoned for more

than six months from 05.01.1944 to 05.07.1944 during

Quit India Movement.

6. It is the case of the appellant that as the said

communication was not supported by any documents, the

appellant herein, sent a letter dated 27.10.2017 which

is addressed to the 2nd Respondent with a copy to the

1

st Respondent to send the claim application by

completing all the required formalities as per

Swatantrata Sainik Samman Pension Scheme. At that

stage, the 1st Respondent herein, has filed the Writ

Petition before Madras High Court (Madurai Bench),

seeking directions by way of mandamus to direct the

3

C.A.@SLP(C)No.5343/2019

appellant herein, to grant Freedom Fighter’s Pension

under the Swatantrata Sainik Samman Pension Scheme.

7. It is the case of the appellant that writ petition

was heard and disposed of by order dated 26.10.2017,

without issuing a notice and without giving any

opportunity to file counter affidavit to rebut the

allegations, made in the petition.

8. Learned Single Judge, referring to certain

communications made by the 1st Respondent, by recording

a finding that the certificate issued by an approved

certifier is sufficient for grant of pension, has

disposed of the petition by directing the appellant to

grant pension under Swatantrata Sainik Samman Pension

Scheme and to pass suitable orders, in respect thereof.

9. It is the case of the appellant that even in the

appeal, though specific grounds are raised before the

Division Bench, inter alia, stating that no notice was

issued in the writ petition; the application by the 1st

Respondent for grant of freedom fighters’ pension was

not supported by required documents; and non-disclosure

of the rejection of the first application for grant of

pension, the High Court has dismissed the appeal

4

C.A.@SLP(C)No.5343/2019

without assigning valid reasons and without considering

any of the grounds raised in the appeal.

10. Before this Court, the counter affidavit is filed

by the 1st Respondent. While denying various allegations

made by the appellant, it is stated that as the

appellant has not complied with the directions issued

by the High Court, he has already moved contempt

petition and without disclosing the same, the Special

Leave Petition is filed before this Court. With

reference to allegations made in the appeal, it is

stated that being a veteran freedom fighter in Indian

freedom struggle, he had suffered various losses and

hardships including imprisonment (not limited to

imprisonment of six months in 1944). Moreover, he had

to go underground for more than a year in 1942 (August,

1942 to December, 1943), as he was facing detention

orders.

11. Further, it is stated that as he has actively

participated in Quit India Movement, as a consequence

of his participation, he was sentenced and was lodged

in Alipuram Central Prison, for more than six months

from 05.01.1944 to 05.07.1944.

5

C.A.@SLP(C)No.5343/2019

12. While referring to his first application made in

the year 1997, it is alleged that such application made

by him was not dealt with due care by the appellant and

the appellant adopted a lethargic approach in

considering the application of the 1st Respondent. While

referring to his earlier rejection, it is stated that

such a rejection made by the appellant, on his first

application, was whimsical and arbitrary.

13. In response to the letter dated 30.08.2017,

addressed by the appellant, it is stated that he has

replied vide letter dated 07.09.2017, stating that all

other veteran freedom fighters had passed away and

except one Mr. A. M. Lakshmanan whose Co-Prisoner

Certificate has already been submitted along with the

certificate of one Mr. A. C. Periasamy, thus, he has

complied with all the requirements as contemplated

under the scheme, as such, there are no grounds to

interfere with the orders passed by the High Court.

14. We have heard Ms. Madhavi Divan, learned

Additional Solicitor General, appearing for the Union

of India and Mr. Divyanshu Srivastav, Advocate,

appearing for the respondent / writ petitioner.

6

C.A.@SLP(C)No.5343/2019

15. It is contended by the learned Additional

Solicitor General, appearing for the Union of India

that the learned Single Judge of the High Court has

disposed of the petition without issuing any notice and

without giving any opportunity of filing counter

affidavit to rebut the allegations, made in the writ

petition. It is submitted that while exercising powers

of judicial review under Article 226 of the

Constitution of India, the High Court has committed

error in issuing positive directions for grant of

pension.

16. It is submitted that when the scheme is prepared

for grant of pension with certain conditions, unless

compliance of such conditions is examined by the

competent authority, no directions ought to have been

issued, directing grant of pension.

17. It is submitted that at the first instance, the 1st

Respondent has applied for grant of pension in the year

1997 and the same was forwarded by the 2nd Respondent

through 3rd Respondent without making any specific

recommendations and the same was rejected, after lapse

of several years, again, application is made for grant

7

C.A.@SLP(C)No.5343/2019

of pension. Even before the same is considered by the

competent authority, the 1st Respondent has approached

the High Court and the High Court has disposed of the

petition without giving opportunity of filing counter

affidavit.

18. It is submitted that in spite of raising several

grounds, the Division Bench also failed to consider the

same, and confirmed the order of the learned Single

Judge by dismissing the appeal filed by the appellant

herein.

19. Learned counsel in support of her arguments relied

on judgment of this Court in the case of W.B.Freedom

Fighters’ Organization v. Union of India and Others1

and also the judgment in the case of Union of India v.

Bikash R. Bhowmik and Others2.

20. On the other hand, Mr. Divyanshu Srivastav,

appearing for the 1st Respondent while refuting the

submissions made by the learned counsel appearing for

the appellant, has contended that though the respondent

has participated in the freedom struggle and suffered

losses apart from his imprisonment during the period of

1. 2004(7)SCC 716

2. 2004(7)SCC 722

8

C.A.@SLP(C)No.5343/2019

Quit India Movement, he is unduly deprived of the

pension, which he is entitled to, as per the scheme

prepared.

21. While drawing our attention to the Order dated

26.04.2019, passed in Special Leave Petition (C)

No.11132 of 2019 (Diary No.2923 of 2019), it is

submitted that similar petition is already dismissed by

this Court and further, relying on the judgment of this

Court in the case of Union of India v. Sitakant S.

Dubhashi and Anr.3, learned Counsel has submitted that

there is no illegality in the impugned order passed by

the High Court and there are no grounds to interfere

with the same.

22. It is, further, submitted that the documents which

are already filed, are sufficient to grant pension as

per the Swatantrata Sainik Samman Pension Scheme and as

the appellant was not considering his application for

grant of pension, the learned Single Judge of the High

Court has rightly issued directions for grant of

pension. There are no grounds to interfere with the

same.

3. 2020(3)SCC 297

9

C.A.@SLP(C)No.5343/2019

23. It is not in dispute that at first instance, the

1

st Respondent herein, has applied for grant of pension

in the year 1997 and the application dated 10.04.1997,

submitted by the 1st Respondent is placed on record. In

the said application, the 1st Respondent has stated that

he was underground during the Quit India Movement of

1942 i.e. during the period from August, 1942 up to a

period of more than six months. At that time, along

with the first application, the Non - Availability of

Records Certificate (NARC) obtained from the

Government, was not produced and merely a certificate,

certified by the C.J.M., Madurai, was produced.

24. The first application, which was forwarded to the

appellant, was without any specific recommendation. On

receipt of such communication from the 2nd respondent,

the claim of the 1st Respondent was considered and

rejected. The said order has become final and the same

was not questioned. Nearly after 13 years of such

rejection, on 29.08.2017, the 1st Respondent has again

claimed pension under the Swatantrata Sainik Samman

Pension Scheme on the plea of his imprisonment for more

than six months for participating in the Quit India

10

C.A.@SLP(C)No.5343/2019

Movement. The application, which is made for the second

time, is also placed on record as Annexure “P-5”. In

the said application, he has stated that he was

imprisoned for more than six months i.e. from

05.01.1944 to 05.07.1944, which is clearly in variance

to the period which he has mentioned in the first

application. Though, earlier rejection has become final

and the particulars mentioned in the claim made by the

1

st Respondent are in variance to the particulars

mentioned at first instance, without issuing notice and

without giving opportunity to the appellant to file

counter affidavit, the learned Single Judge has

disposed of the petition by granting a positive

direction to grant pension. The claim of the 1st

Respondent is under the scheme, notified by the

appellant-Government. The scheme prescribes to file

certain documents to authenticate the imprisonment of a

claimant as a freedom fighter.

25. It is the case of the appellant that the

documentary evidence filed by the 1st Respondent is not

in compliance of the scheme. It is a matter which is to

be left to the competent authority to consider. When

11

C.A.@SLP(C)No.5343/2019

the application of the 1st Respondent is already

rejected in the year 1997, when such rejection order

has become final, it is not open for the 1st Respondent

to make a claim for second time for pension again by

way of fresh application. The 1st Respondent would be

entitled to the benefits of this scheme, if he produces

the relevant material in support of his claim. As

regards the sufficiency of proof, the scheme itself

mentions the documents which are required to be

produced along with the application. Whether the

claimant fulfills the criteria or not, it is for the

competent authority to examine it. Even before the

application is considered by the competent authority,

in exercise of powers of judicial review, the High

Court should not have issued any directions for grant

of pension. In this case, it is also to be noticed that

earlier the claim of the 1st Respondent is already

rejected and the said order has become final. After

perusal of the order passed by the learned Single Judge

and the Division Bench, we are of the view that no

valid reasons have been assigned to grant relief to the

1

st Respondent for grant of pension. It appears that the

12

C.A.@SLP(C)No.5343/2019

1

st Respondent has not disclosed his earlier rejection

by producing the earlier orders while making the

application for the second time before the appellant

and also before the High Court.

26. In any event, when such serious factual disputes

emerge for consideration, the High Court ought not to

have disposed of the petition filed by the Respondent

without even issuing notice and giving opportunity to

file counter affidavit to rebut the allegations made by

the appellant. The judgments of this Court, relied on

by the learned Additional Solicitor General in the case

of W.B.Freedom Fighters’ Organization v. Union of India

and Others1 and in the case of Union of India v. Bikash

R. Bhowmik and Others2 will support the plea of the

appellant. In the case of W.B.Freedom Fighters’

Organization v. Union of India and Others, this Court

has held that when the competent committee has

considered and opined that the applications were not

supported by required documents and rejected the

application, this Court cannot interfere with the same

and such findings cannot be said to be perverse or

unreasonable.

13

C.A.@SLP(C)No.5343/2019

27. Further, in the case of Union of India vs. Bikash

R. Bhowmik and Others2, this Court has held that the

pension under Swatantrata Sainik Samman Pension Scheme

of 1980 can be sanctioned as per the proof required

under the scheme and in no other manner. In the said

judgment, this Court has reversed the order passed by

the High Court.

28. In the instant case, the appellant stands on a

better footing, for the reason that although the

application made by the 1st Respondent on 10.04.1997 was

rejected and the said order has become final, he again

approached the appellant with the same request. Even

before the Competent Authority considers the

application, the 1

st Respondent approached the High

Court by filing Writ Petition and the High Court, not

only entertained the petition, but disposed of the same

without even notice and opportunity of filing counter

affidavit to the appellant.

29. We have also perused the order passed by the

Division Bench. Even the Division Bench of High Court

has not considered various grounds raised by the

14

C.A.@SLP(C)No.5343/2019

appellant, while confirming the order of the learned

Single Judge.

30. It may be true that the 1st Respondent is getting

pension as per the scheme, mooted by the State, but, at

the same time, to claim pension under the scheme of

1980, the 1st Respondent has to furnish the required

proof as contemplated under the scheme. When the claim

is under a particular scheme, unless one fulfills the

eligibility criteria for grant of pension, as mentioned

in the scheme, no applicant can claim such pensions, as

a matter of right.

31. Though, the learned Counsel appearing for the

respondent – Writ Petitioner has placed reliance on the

order passed by this Court in rejecting the Special

Leave Petition in limine and also, further, judgment of

this Court in the case of Union of India v. Sitakant S.

Dubhashi and Anr.3, we are of the view that the order

passed by this Court and also the judgment in the case

of Union of India v. Sitakant S. Dubhashi and Anr.

would not render any assistance in support of his

claim. Whether a particular applicant is entitled for

pension under the Swatantrata Sainik Samman Pension

15

C.A.@SLP(C)No.5343/2019

Scheme of 1980, is a matter which is required to be

considered having regard to facts and documentary

evidence produced in each case, as such, the judgment

relied on by the learned counsel is of no assistance to

support his case.

32. In view of the reasons, stated supra, we allow

this appeal and set aside the judgment dated 29.08.2018

passed in W.A.(MD) No.907 of 2018 by the Madras High

Court (Madurai Bench) and consequently, the Writ

Petition filed in Writ Petition (MD) No.17290 of 2017

stands dismissed, with no order as to costs.

 ..........................J.

 (ASHOK BHUSHAN)

 ..........................J.

 (R. SUBHASH REDDY)

NEW DELHI;

February 22, 2021

16

Alternative Dispute Resolution Act of Bhutan, 2013 = as per Clause 67 (ii) of the Contract, the arbitration would be governed by the Bhutan Act, 2013 and the place of arbitration shall be at Thimphu, Bhutan as provided by Clause 67 (vii) (a). =all disputes arising out of the Agreement dated 14.04.2009 shall be conducted in accordance with the Alternative Dispute Resolution Act of Bhutan, 2013 with the seat of arbitration at Thimphu. The tribunal will, however, be at liberty to conduct some of the hearings, in consultation with the parties, at such venues as may be convenient

Alternative Dispute Resolution Act of Bhutan, 2013 = as per Clause 67 (ii) of the Contract, the arbitration would be governed by the Bhutan Act, 2013 and the place of arbitration shall be at Thimphu, Bhutan as provided by Clause 67 (vii) (a). =all disputes arising out of the Agreement dated 14.04.2009 shall be conducted in accordance with the Alternative Dispute Resolution Act of Bhutan, 2013 with the seat of arbitration at Thimphu. The tribunal will, however, be at liberty to conduct some of the hearings, in consultation with the parties, at such venues as may be convenient

1

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.693 OF 2021

(Arising out of SLP (C) No. 2544 / 2021)

Punatsangchhu – 1 Hydroelectric Project

Authority, Bhutan …APPELLANT

Versus

Larsen & Toubro Ltd. … RESPONDENT

O R D E R

Leave granted.

1. On 14.04.2009, a Contract Agreement was executed between the

Appellant and the Respondent-Contractor for the Construction of Diversion

Tunnel, Dam, Intake and Desilting Arrangement including Hydro-mechanical

Works of the Punatsangchhu-I Hydro-electric Project located in Wangdue

Phodrang District in Bhutan. The contract provided for resolution of disputes

through arbitration. The relevant terms of the Contract are as under :

Clause 5 (i) (b)

The law to which the Contract is to be subject and according to which the

Contract is to be construed shall be the law for the time being in force in

Bhutan and within the jurisdiction of Thimphu courts.

Clause 67

(ii) Except where the decision has become final, binding and conclusive in

terms of Sub Para (i) above disputes or differences shall be referred for

arbitration through to an Arbitral Tribunal of three arbitrators appointed jointly

by the PHPA and the Contractor. Where the mandate of an arbitrator

terminates a substitute arbitrator shall be appointed according to the rules that

were applicable to the appointment of the arbitrator being replaced.

In the absence of an Arbitration Act in Bhutan, the Arbitral Tribunal shall

follow / be guided by the basic principles and procedures as contained in the

Indian Arbitration and Conciliation Act 1996. The parties shall be free to agree

on a procedure for appointing the Arbitrators. Failing any agreement for

appointment of Arbitrators, each party shall appoint one Arbitrator and the two

appointed Arbitrators shall appoint the third Arbitrator, who shall act as the

presiding Arbitrator.

2

Clause 67 (iv)

If either of the parties fail to appoint its arbitrators in pursuance of sub-clause

(ii) above, within 30 days after the receipt of the notice of the appointment of

its arbitrators or the two appointed Arbitrators fail to agree on third Arbitrator

within thirty days from the date of their appointment then the appointment shall

be made, upon request of a party, by the Chief Justice, Delhi High Court,

India/Thimphu High Court, Bhutan or any person or institutions designated by

him.

Clause 67 (vii)(a)

All arbitration shall be held at New Delhi, India/ Thimphu, Bhutan.

2. On 25.02.2013, the Kingdom of Bhutan enacted the Alternative

Dispute Resolution Act, 2013 (“the Bhutan Act”) to provide for settlement

of disputes through arbitration. The Act came into force w.e.f. 14.03.2013.

3. Disputes arose between the parties with respect to certain claims

made by the Respondent-Contractor.

 On 28.07.2020, the Respondent-Contractor sent a notice of arbitration

to the Appellant-Authority under Clause 67 (ii) of the Contract, and

nominated a retired Judge of this Court as its nominee arbitrator.

4. In response to the Notice dated 28.07.2020, the Appellant replied vide

Letter dated 04.08.2020, stating that it was agreeable for settlement of

disputes through arbitration. However, as per Clause 67 (ii) of the Contract,

the arbitration would be governed by the Bhutan Act, 2013 and the place of

arbitration shall be at Thimphu, Bhutan as provided by Clause 67 (vii) (a).

5. In October, 2020, the Respondent-Contractor filed an application u/S.

11 (6) of the Arbitration & Conciliation Act, 1996 before the Delhi High Court

for appointment of an arbitrator on behalf of the Appellant-Authority.

6. The Delhi High Court vide Order dated 11.12.2020 held that Clause

67 (ii) of the Agreement did not indicate that the applicability of the 1996 Act

3

would cease on the enactment of the Bhutan Act. The enactment of the

Bhutan Act, 2013 would not result in the 1996 Act becoming inapplicable.

The arbitration would be governed by the 1996 Act. Since the Hydro-electric

Authority had failed to appoint its arbitrator, the Court exercised its

jurisdiction u/S.11, and made the appointment. It was further directed that

the two arbitrators would proceed to appoint the presiding arbitrator, and the

arbitral proceedings would be governed by the provisions of the 1996 Act.

7. Aggrieved by the Order dated 11.12.2020, the Hydro-electric Authority

filed the present special leave petition.

 We have heard Mr. Tushar Mehta, learned Solicitor General of India

and Mr. Ranjeet Kumar, Senior Advocate on behalf of the AppellantAuthority, and Mr. Gourab Banerji, Senior Advocate on behalf of the

Respondent-Contractor.

 On 16.02.2021, the matter was taken up for admission hearing. We

were informed by the Senior Counsel for the parties that in the meanwhile,

the arbitral tribunal had been constituted, as the two arbitrators had

appointed Justice (Retd.) R.C. Lahoti, former Chief Justice of India, as the

presiding arbitrator.

 The learned Solicitor General appearing on behalf of the Authority

fairly submitted that the Appellant herein did not have an issue with respect

to the panel of arbitrators appointed for adjudication of the disputes. Their

grievance was limited to the applicability of the Indian Arbitration &

Conciliation Act, 1996 and the seat of arbitration at New Delhi.

8. The matter was then taken up on 22.02.2021 for further hearing. Mr.

Gourab Banerji, learned Senior Advocate for the Respondent-Contractor

4

submitted that his clients were agreeable to the arbitration being conducted

in accordance with the Alternative Dispute Resolution Act, 2013 of Bhutan,

with the seat of arbitration at Thimphu.

9. In view of the consensus arrived between the parties, the Order of the

High Court stands modified to the extent that all disputes arising out of the

Agreement dated 14.04.2009 shall be conducted in accordance with the

Alternative Dispute Resolution Act of Bhutan, 2013 with the seat of

arbitration at Thimphu. The tribunal will, however, be at liberty to conduct

some of the hearings, in consultation with the parties, at such venues as

may be convenient.

 The Civil Appeal is disposed of, with no order as to costs.

 Pending applications, if any, shall stand disposed of.

.…………………………J.

 (INDU MALHOTRA)

…….…………………….J.

 (AJAY RASTOGI)

New Delhi;

February 22, 2021.

court fee = there was no compulsion for the plaintiff to, at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once it is conceded that the value of the land [per explanation to Section 7 (iv-A)] is to be determined according to either sub clauses (v), (va) or (vb) of the Act, this meant that the concept of “market value” – a wider concept in other contexts, was deemed to be referrable to one or other modes of determining the value under sub clauses (v), (va) or (vb) of Section 7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this case. The reasoning and conclusions of the High Court, are therefore, not sustainable.

 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1722 OF 2020

(ARISING OUT OF SLP (C) No. 18008 OF 2019)

AGRA DIOCESAN TRUST ASSOCIATION ...APPELLANT(S)

VERSUS

ANIL DAVID AND ORS. ...RESPONDENT(S)

WITH

CIVIL APPEAL NO. 1723 OF 2020

(ARISING OUT OF SLP (C) No. 18007 OF 2019)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. Leave granted. With consent of counsel for the parties, the appeals were

heard finally.

2. The appellant, (hereafter “the plaintiff”) had filed a suit (O.S. 24/ 2013) in

the court of the Civil Judge (Senior Division), Dehradun for cancellation of a sale

deed dated 08.03.2013, executed by the defendant-respondent no.1. The third

respondent, (hereafter called the “purchaser”) had acquired the property from the

defendant-respondent no.1. Another suit (O.S. No. 25/ 2013, also titled as Agra

Diocesan Trust Association v. Anil David and Others), was filed by the plaintiff for

cancellation of the sale deed dated 08.03.2013 executed by the first two respondents

in favour of the purchaser. A further relief sought was for permanent injunction

against the respondents/ defendants restraining them from interfering in the

plaintiff’s peaceful possession of the property in dispute. The defendants filed their

written statements, contending inter alia that although the relief of cancellation of

2

the sale deed in question has been sought, the plaintiff had improperly valued the

suit and the court fee paid was insufficient.

3. The trial court on the pleadings of the parties, framed the issues; the

relevant issues, Nos. 8 and 10 in both suits were (a) whether the suit filed by the

plaintiff was undervalued and (b) whether the court fee paid by the plaintiff was

insufficient.

4. The trial court by its order dated 23.04.2016, recorded the findings against

the plaintiff / petitioner and held that the suits filed were under-valued and the court

fee paid by the plaintiff was insufficient. Aggrieved by the same, the plaintiff filed

the writ petition before the High Court, contending that the land in dispute was

agricultural land. Further, it was stated that the appellant-plaintiff was not party to

the sale deed, and therefore, the learned trial court has committed an illegality in

deciding the issues against the plaintiff and in directing the plaintiff to pay ad

valorem court fee on the market value of the land. It was also submitted that as the

land in dispute was agricultural land, the petitioner was obliged to pay the court fee

on the revenue payable as fixed by the state government in view of Section 7(iv-A)

of the Court Fees Act, 1870.

5. The High Court, by the impugned judgment, after hearing counsel for the

parties, accepted the respondent/defendants’ contentions that the circle rate fixed by

the collector to charge stamp duty took into account the actual market value of the

property situated in the area. It was held that fixation of circle rate by the collector

is the proper mode for fixation or determination of the market value (for purposes

of payment of court fees), unless an aggrieved person challenges that the circle rate

fixed by the Collector is not the correct market value of the property.

6. Mr. P.N. Mishra, learned senior counsel, argued that the land in dispute is

revenue payable land. Accordingly, the suits were correctly valued at 30 times of

the revenue fixed by the state. It was urged that being a stranger to the sale deed in

question, the plaintiff had to pay 1/5th on the market value as assessed, i.e. on 30

times the revenue. It was urged that the market value in the sale deed was

mentioned at ₹11,79,09,000/- and ₹ 7,20,36,000/- respectively as the market value

3

assessed in view of the circle rate fixed by the collector, which was not the correct

market value. Counsel relied on a textual interpretation of Section 7(iv-A) of the

Court Fees Act. Reliance was placed on Shailendra Bhardwaj v. Chandra Pal &

Anr., (2013) 1 SCC 579 to say that the circle rate fixed by the collector for charging

stamp duty is not the correct market value of the property for the purpose of court

fees. Therefore, the market value mentioned in the sale deed in order to pay the

stamp duty, i.e. ₹ 11,79,09,000/- and ₹ 7,20,36,000/- respectively, is not the correct

market value of the property in dispute. Mr. Mishra also argued that the suits were

properly valued and the proper court fee was paid. The courts below, according to

him, erred in holding that the suits were under-valued by the plaintiff and that the

court fee paid was insufficient.

7. Mr. Rakesh Dwivedi, learned counsel appearing for the respondent

defendants, resisted the present proceedings. He urged that this court should desist

from interfering with the concurrent findings of the courts below, under Article 226

of the Constitution of India. It was also submitted by him that the circle rate fixed

by the collector for charging stamp duty was so fixed in terms of the actual market

value of the property situated in the area. It is argued that the fixation of circle rate

by the collector is the correct mode for fixation of market value, unless an

aggrieved person challenges that the circle rate fixed by the collector is incorrect. It

is submitted that the appellants, in an arbitrary manner, valued the market value of

the suit property for payment of court fee and jurisdiction of the court.

8. In the impugned judgment, the High Court reasoned as follows:

“19. The submission of the learned counsel for the petitioners

that to ascertain the market value and for the purpose of

payment of court fee and jurisdiction of the court, should be

considered from plaint averments alone and what has been

stated in the written statement is not relevant is acceptable to

the extent that what has been contended in the written

statement is not relevant, but the court has to consider while

determining the market value for the purpose of court fee and

jurisdiction of the court, the court has to consider the

4

averments of plaint, whether the suit has been valued for the

purpose of court fee and jurisdiction as per the relief claimed

and in accordance with the provisions contained in the Court

fee and Suit Valuation Act. The court is not supposed to accept

the plain averment in regard to the payment of court fee and

jurisdiction as contended by the plaintiff. On a perusal of the

plaint averments and the provisions contained in Section 7(ivA), this Court is of the view that at one place the plaintiff has

valued the suit for cancellation of sale deed and for the purpose

of payment of court fee and jurisdiction Rs. 2,00,00,000/- and

immediately thereafter at thirty times of the revenue payable

i.e. Rs. 3,000/- and paid the court fee on 1/5 of the valuation of

Rs. 3,000/-.

20. It is nowhere stated in the plaint that how the plaintiff has

valued the market value of the property in question at Rs.

2,00,00,000/- whereof as per the circle rate fixed by the

Collector, the market value of the property in dispute is Rs.

11,00,00,000/-. The stamp duty has been paid on an amount of

Rs. 2,00,00,000/- sale consideration but in view of the

provisions contained in Section 7(iv-A) of the Act the sale

consideration is not the relevant factor for the purpose of

payment of court fee and jurisdiction of the court. It is only the

market value of the suit property the court fee is to be paid and

jurisdiction of the court be fixed. The plaintiff cannot take two

contradictory market value in his plaint, as in one place he has

fixed the market value of Rs. 2,00,00,000/- and the jurisdiction

of hearing the suit for valuation of Rs. 1,00,000/- vests in Civil

Judge (Sr. Div.), whereof a suit valued for an amount of Rs.

3,000/- for the purpose of payment of court fee and jurisdiction,

the jurisdiction to try the suit of the valuation of Rs. 3,000/-

vests in the court of Civil Judge (Jr. Div.).

21. Section 15 the Code of Civil Procedure provides that every

suit shall be instituted in the court of the lowest grade

competent to try it. Section 15 of CPC is quoted hereunder:

"15. Court in which suits to be instituted.- Every suit shall be

instituted in the Court of the lowest grade competent to try it."

22. Assuming that the market value of the suit property is Rs.

3,000/-, as per the averment of the plaint, then the suits could

5

not have been filed in the Court of Civil Judge (Sr. Div.). If it is

a valuation of Rs. 2,00,00,000/- as per the plaint averment for

the purpose of payment of court fee and jurisdiction and the

suits have been instituted in the competent court of jurisdiction,

then there is no basis of it that the market value of the suit is

Rs. 2,00,00,000/-. The submission of learned counsel for the

petitioners that circle rate is not the correct mode to ascertain

the market value has some force, but it is not the absolute

proposition. In some cases, the market value may be higher or

lower then the circle rate but to ascertain the market value, the

party assailing the market value as fixed in the circle rate has

to prove that the circle rate has not been fixed on the real

market value. Unless otherwise market value is proved on

higher or lower side, the market value assessed on the basis of

circle rate cannot be said improper/incorrect market value.

23. A perusal of the impugned order would show that the trial

court having considered the market value as mentioned in the

sale deed has found the correct market value of the suit

property and held that the suits have not been valued properly.

Thus, I am of the considered view that since no other market

value has been proved by the petitioners/plaintiff that the

settled revenue of the land is Rs. 3,000/- and in absence of any

evidence in this regard, the trial court has rightly considered

the market value of the property in dispute in accordance with

the market value fixed by the Collector in order to charge the

stamp duty, which is the correct market value.

24. So far the findings recorded by the trial court that the

petitioners/plaintiff is required to pay the ad valoram court fee

on the market value is incorrect in view of the provisions

contained in Sub Section (2) of Section 7(iv-A) of the Court Fee

Act. Since the petitioners/plaintiff or its predecessor-in-interest

is not the party to the instrument, therefore, the

petitioners/plaintiff is obliged to pay 1/5 of the value of the

subject matter as mentioned in the instrument involved in the

suit.

25. In view of the findings recorded above, I am of the

considered view that the trial court has rightly held that O.S.

no. 24 of 2013 and O.S. 25 of 2015 have been undervalued and

6

court fee paid is insufficient and in fixation of market value as

mentioned in the sale deed Rs. 11,79,09,000/- (in O.S. no. 24 of

2013) and Rs. 7,20,36,000/- (in O.S. no. 25 of 2013) is correct,

whereof the finding in regard to the payment of ad valorem

court free are illegal and is liable to set aside. Thus, the

judgment and order passed by the trial court on issue nos. 8

and 9 are modified to the extent that the plaintiff shall value the

suit no. 24 of 2013 at the rate of Rs. 11,79,09,000-and O.S. no.

25 of 2013 at the rate of Rs. 7,20,36,000/- respectively, and

shall pay the court fee on 1/5 of the aforesaid value thereon. So

far Relief 'B' and 'C' are concerned, the petitioners have paid

the fixed court fee. The petitioners shall pay the remaining

court fee within two months from today, on payment of

remaining court fee the trial court shall proceed to decide both

the suits in accordance with law.”

9. For a proper appreciation of the issue, it would be essential to extract the

relevant provisions of law. Section 7(iv-A) of the U.P. Court Fees Act, 1870 reads

as follows:

“7. Computation of fees payable in certain suits- The amount

of fee payable under this Act in the suits next hereinafter

mentioned shall be computed as follows: -

XXXXXX XXXXXX XXXXXX

For cancellation or adjudging void instruments and decrees.

(iv-A) In suit for or involving cancellation of or adjudging void

or voidable decree for money or other property having a

market value, or an instrument securing money or other

property having such value:

(1) where the plaintiff or his predecessor-in-title was a party to

the decree or the instrument, according to the value of the

subject-matter, and

(2) where he or his predecessor-in-title was not a party to the

decree or instrument, according to one-fifth of the value of the

subject matter, and such value shall be deemed to beif the whole decree or instrument is involved in the suit, the

amount for which or value of the property in respect of which

the decree is passed or the instrument executed, and if only a

7

part of the decree or instrument is involved in the suit, the

amount or value of the property to which such part relates.

Explanation - ‘The value of the property’ for the purposes of

this sub-section, shall be the market-value, which in the case of

immovable property shall be deemed to be the value as

computed in accordance with the sub-section (v), (v-A) or (v-B)

as the case may be.

For easement.- (iv-B) In suits – (a) for a right to some benefit

(not herein otherwise provided for) to arise out of land;

For an injunction – (b) to obtain an injunction:

To establish an adoption – (c) to establish an adoption or to

obtain a declaration that an alleged adoption is valid;

To set aside an adoption- (d) to set aside an adoption or to

obtain a declaration that an alleged adoption is invalid or

never, in fact, took place;

To set aside an award other than awards mentioned in Section

8. - (e) to set aside an award not being an award mentioned in

Section 8;

according to the amount at which the relief sought is valued in

the plaint:

[Provided that such amount shall not be less than one fifth of

the market value of the property involved in or effected by the

relief sought or Rs.200 whichever is greater:

Provided further that in the case of suits falling under clauses

(a) and (b), the amount of court fee leviable shall in no case

exceed Rs.500].

Explanation 1.- When the relief sought is with reference to any

immovable property the market value of such property shall be

deemed to be the value computed in accordance with subsection (v), (v-A) or (v-B) of this section, as the case may be.

Explanation 2 – In the case of suits-

(i) falling under clauses (a) and (b), the property which is

affected by the relief sought, and where properties of both the

plaintiff and defendant are affected, the property of the plaintiff

so affected;

(ii) falling under clauses (c) and (d), the property to which title

by succession or otherwise may be diverted or affected by the

alleged adoption; and

(iii) falling under clause (e), the property which forms the

subject-matter of the award;

8

shall be deemed to be the property involved in or affected by

the relief sought within the meaning of the proviso to this subsection.

For restitution of conjugal rights – (iv-C) in suits – (a) for the

restitution of conjugal rights;

For marital rights – (b) for establishing or annulling or

dissolving a marriage;

For guardianship – (c) for establishing a right to the custody or

guardianship of any person such as a minor, including

guardianship for the purpose of marriage.

according to the amount at which the relief sought is valued in

the plaint, but in no case shall such amount be less than

Rs.200.

For possession of lands, buildings or gardens – (v) in suits for

the possession of land, buildings or gardensaccording to the value of the subject matter; and such value

shall be deemed to be-

(I) where the subject-matter is land, and

(a) where the land forms an entire estate, or a definite

share of an estate, paying annual revenue to

Government, or forms part of such an estate and is

recorded in the Collector's register as separately

assessed with such revenue; and such revenue is

permanently settled—ten times the revenue so

payable;

(b) where the land forms an entire estate, or a definite

share of an estate, paying annual revenue to

Government, or forms part of such estate and is

recorded as aforesaid and such revenue is settled, but

not permanently—

ten times the revenue so payable;

(c) where the land pays no such revenue, or has been

partially exempted from such payment, or is charged

with any fixed payment in lieu of such revenue, and

net profits have arisen from the land during the year

next before the date of presenting the plaint—

twenty times the annual average of such net profits;

but when no such net profits have arisen therefrom

the market value which shall be determined by

9

multiplying by twenty the annual average net profits

of similar land for the three years immediately

preceding the date of presenting the plaint;

(d) where the land forms part of an estate paying

revenue to Government, but is not a definite share of

such estate and does not come under clause (a), (b)

or (c) abovethe market value of the land which shall be

determined by multiplying by fifteen the rental value

of the land, including assumed rent on proprietary

cultivation, if any;

(II) where the subject matter is a building or gardenExplanation.—The word “estate”, as used in this

sub-section, means any land subject to the payment

of revenue, for which the proprietor or a farmer or

raiyat shall have executed a separate engagement to

Government, or which, in the absence of such

engagement, shall have been separately assessed

with revenue;

For possession of superior proprietary and under-proprietary

land – (v-A) In suits for possession -

(1) of superior proprietary rights where under-proprietary or

sub-proprietary rights exist in the landaccording to the market value of the subject matter, and such

value shall be determined by multiplying by fifteen the annual

net profits of the superior proprietor;

(2) of under proprietary or sub-proprietary land as such -

according to the value of the subject matter, and such value

shall be determined by multiplying by ten the annual underproprietary or sub-proprietary rent, as the case may be,

recorded in the Collector’s register as payable for the land for

the year next before the presentation of the plaint.

If no such rent is recorded in the collector’s register the value

shall be determined in the manner laid down in clause (c) of

sub-section (v) of this section save that the multiple will be ten.

Explanation – Land held by any permanent lessees shall be

treated for the purposes of this sub-section, as underproprietary or sub-proprietary land.

10

Possessory suit between tenants – (v-B) In suits for possession

of land between rival tenants and by tenants against trespasser

according to the value of the subject-matter and such value shall

be determined if such land is the land of-

(a) a permanent tenure-older or a fixed rate tenant – by

multiplying by twenty the annual rent recorded in the Collector’s

register as payable for the land for the year next before the

presentation of the plaint;

(b) an ex-proprietary or occupancy tenant – by multiplying by

two such rent in case of suits for possession of land between

rival tenants, and by annual rent in suits by tenants against

trespassers;

(c) any other tenant – by annual rent.

If no such rent is recorded in the Collector’s register, the value

shall be determined in the manner laid down in clause (c) of

sub-section (v) of this section save that the multiple shall be that

entered in clauses (a), (b) and (c) of this sub-section according

as the class of tenancy affected is governed by clauses (a), (b) or

(c) of this sub-section.”

10. In OS No. 24/2013, the averment with respect to suit valuation and court fee

was as follows:

"15. That the valuation of the suit for the purpose of court fee

and jurisdiction is as under: -

(a) Relief "A" is for cancellation of sale deed.

The relief "A" is valued for the purpose of court fee and

jurisdiction at Rs.2,00,00,000/- Hence, relief "A" is valued for

the purpose of court fee and jurisdiction at 30 times of the land

revenue, i.e., Rs.3,000/-. The plaintiff was not a party to the

sale deed, hence the court fee of 1/5 of Rs.3,000/- is being paid.

(b) For Relief "B" - Rs.5,00,000/-, on which the prescribed

court fee has been paid.

(c) For Relief "C" -Rs.5,00,000/-, on which the prescribed

court fee has been paid."

In O.S. No. 25 of 2013, the averment with respect to valuation for purposes

of court fees, is as below:

11

"15. That the valuation of the suit for the purpose of court fee

and jurisdiction is as under: -

(a) Relief "A" is for cancellation of sale deed.

The relief "A" is valued for the purpose of court fee and

jurisdiction at Rs.1,00,00,000/- Hence, relief "A" is valued for

the purpose of court fee and jurisdiction at 30 times of the

land revenue, i.e., Rs.3,000/-. The plaintiff was not a party to

the sale deed, hence the court fee of 1/5 of Rs.3,000/- is being

paid.

(b) For Relief "B" - Rs.5,00,000/-, on which the prescribed

court fee has been paid.

(c) For Relief "C" -Rs.5,00,000/-, on which the prescribed

court fee has been paid."

11. The reliefs sought in each case were:

(i) for a decree for declaration that the sale deed dated 08.03.2013

executed by defendant no. 1 in favour of defendant no. 3 (suit no. 24 of

2013) is void and not binding on the plaintiff and a decree of

cancellation thereof;

(ii) for a decree for declaration that the sale deed dated 08.03.2013

executed by defendant nos. 1 and 2 in favour of defendant no. 3 (suit

no. 25 of 2013), is void and not binding on the plaintiff and a decree of

cancellation thereof;

(iii) a decree for permanent injunction restraining defendant nos. 1 to

3, their agents, employees, representatives etc. from interfering in any

way with the property more fully described in the schedule of the

plaint, till the disposal of the suit (in both suits); and

(iv) a decree of permanent injunction restraining defendant no. 3, his

agents, employees, representatives etc. from in any way transferring,

alienating or creating third party interest in the property more fully

described in the schedule of the plaint till the disposal of the suit (in

both suits).

12. In Suhrid Singh alias Sardool Singh v. Randhir Singh & Ors. (2010) 12 SCC

112, this court noted that the trial court ruled that the claims relating to the sale

deeds amounted to seeking cancellation of the sale deeds and therefore, ad valorem

12

court fee was payable on the sale consideration in respect of the sale deeds. The

said view was affirmed in the revision. The court addressed the issue of court fee

payable in regard to the claim for a declaration that the sale deeds were void and not

"binding on the coparcenary", and for the consequential relief of joint possession

and injunction. After referring to the provisions of the Court Fees Act, 1870 as

amended in Punjab (as the controversy arose from the High Court of Punjab and

Haryana), the Court held:

“Where the executant of a deed wants it to be annulled, he has

to seek cancellation of the deed. But if a non-executant seeks

annulment of a deed, he has to seek a declaration that the deed

is invalid, or non est, or illegal or that it is not binding on him.

The difference between a prayer for cancellation and

declaration in regard to a deed of transfer/conveyance, can be

brought out by the following illustration relating to A and B,

two brothers. A executes a sale deed in favour of C.

Subsequently A wants to avoid the sale. A has to sue for

cancellation of the deed. On the other hand, if B, who is not the

executant of the deed, wants to avoid it, he has to sue for a

declaration that the deed executed by A is invalid/void and non

est/illegal and he is not bound by it. In essence both may be

suing to have the deed set aside or declared as non-binding.

But the form is different and court fee is also different. If A, the

executant of the deed, seeks cancellation of the deed, he has to

pay ad valorem court fee on the consideration stated in the sale

deed. If B, who is a non-executant, is in possession and sues for

a declaration that the deed is null or void and does not bind

him or his share, he has to merely pay a fixed court fee of Rs.

19.50 Under Article 17(iii) of the Second Schedule of the Act.

But if B, a non-executant, is not in possession, and he seeks not

only a declaration that the sale deed is invalid, but also the

consequential relief of possession, he has to pay an ad valorem

court fee as provided under Section 7(iv)(c) of the Act.

Section 7(iv)(c) provides that in suits for a declaratory decree

with consequential relief, the court fee shall be computed

according to the amount at which the relief sought is valued in

the plaint. The proviso thereto makes it clear that where the

13

suit for declaratory decree with consequential relief is with

reference to any property, such valuation shall not be less than

the value of the property calculated in the manner provided for

by Clause (v) of Section 7.”

13. In Shailendra Bhardwaj & Ors. v. Chandra Pal & Anr. (supra), this court had

to consider whether a suit for declaration that a will and a sale deed are void

resulting in their cancellation, fell under Section 7(iv-A) of the Court Fees Act,

1870 as amended by the U.P. Amendment Act (Act 19 of 1938) or Article 17(iii) of

Schedule II of the Court Fees Act, 1870 for the purpose of valuation. The trial court

had held that the court fee had to be paid under Section 7(iv-A) and the High Court

affirmed that view. This court noted the provisions of the Court Fees Act, 1870 as

amended by the U.P. Amendment Act (Act 19 of 1938) and held as follows:

“On comparing the above mentioned provisions, it is clear that

Article 17(iii) of Schedule II of the Court Fees Act is applicable

in cases where the Plaintiff seeks to obtain a declaratory decree

without any consequential relief and there is no other provision

under the Act for payment of fee relating to relief claimed.

Article 17(iii) of Schedule II of the Court Fees Act makes it

clear that this Article is applicable in cases where the Plaintiff

seeks to obtain a declaratory decree without consequential

reliefs and there is no other provision under the Act for payment

of fee relating to relief claimed. If there is no other provision

under the Court Fees Act in case of a suit involving cancellation

or adjudging/declaring void or voidable a will or sale deed on

the question of payment of court fees, then Article 17(iii) of

Schedule II shall be applicable. But if such relief is covered by

any other provisions of the Court Fees Act, then Article 17(iii)

of Schedule II will not be applicable. On a comparison between

the Court Fees Act and the U.P. Amendment Act, it is clear that

Section 7(iv-A) of the U.P. Amendment Act covers suits for or

involving cancellation or adjudging/declaring null and void

decree for money or an instrument securing money or other

property having such value.”

14

14. The Court observed that the suit was filed after the death of the testator, and

that the suit property covered by the will had to be valued. The court felt that since

Section 7(iv-A) of the U.P. Amendment Act specifically provided that payment of

court fees in cases where the suit is for, or involving cancellation or

adjudging/declaring null and void a decree for money or an instrument, Article

17(iii) of Schedule II of the Court Fees Act was inapplicable. The U.P. Amendment

Act, therefore, was applicable despite the fact that no consequential relief had been

claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act,

court fees were to be computed according to the value of the subject-matter. The

trial court and the High Court correctly held it to be so. The court distinguished

Suhrid Singh's case (supra) stating that:

“10. We are of the view that the decision of this Court in Suhrid

Singh (supra) is not applicable to the facts of the present case.

First of all, this Court had no occasion to examine the scope of

the U.P. Amendment Act. That was a case in which this Court

was dealing with Sections 7(iv)(c), (v) and Schedule II Article

17(iii), as amended in the State of Punjab. The position that we

get in the State of Punjab is entirely different from the State of

U.P. and the effect of the U.P. Amendment Act was not an issue

which arose for consideration in that case. Consequently, in our

view, the said judgment would not apply to the present case.

11. The Plaintiff, in the instant case, valued the suit at Rs. 30

lakhs for the purpose of pecuniary jurisdiction. However, for the

purpose of court fee, the Plaintiff paid a fixed court fee of Rs.

200 Under Article 17(iii) of Schedule II of the Court Fees Act.

The Plaintiff had not noticed the fact that the above mentioned

Article stood amended by the State, by adding the words "not

otherwise provided for by this Act". Since Section 7(iv-A) of the

U.P. Amended Act specifically provides for payment of court fee

in case where the suit is for or involving cancellation or

adjudging/declaring void or voidable an instrument securing

property having money value, Article 17(iii) of Schedule II of the

Court Fees Act shall not be applicable.”

15

15. It is evident from the above discussion that it is undisputed that the point in

issue was with respect to valuation for purposes of court fee; equally, it is not in

issue that since the plaintiff (i.e. petitioner herein) sought, in addition to a

declaration, in both the suits, decrees of cancellation, the crucial point was what the

correct value for purposes of court fee was. Now, market value has been

specifically defined, in the context of a litigation like the present one. According to

Section 7 (iv-A), in case the plaintiff (or his predecessor-in-title) was not a party to

the decree or instrument, the value was to be according to one-fifth of the value of

the subject matter, “and such value shall be deemed to be” under Section 7 (iv-A),

“if the whole decree or instrument is involved in the suit, the amount for which or

value of the property in respect of which the decree is passed or the instrument

executed”. Importantly, the explanation to Section 7 (iv-A) created a deeming

fiction as to what constitutes the “value of the property” by saying that “in the case

of immovable property shall be deemed to be the value as computed in accordance

with the sub-section (v), (v-A) or (v-B) as the case may be.”

16. The plaintiff/petitioners’ contention was and continues to be that the value

determinable is in terms of clause (v) of Section 7, by reason of Section 7 (iv-A).

Section 7 (v) (i) contains two clauses- (a) and (b): both are in respect of revenue

paying lands. The petitioner valued its suits on the basis of revenue which

according to it, was payable. While so stating, the value (for purposes of court fee)

was determined to be ₹ 3000/- in each of the suits.

17. A plain reading of the impugned judgment reveals that what weighed heavily

with the High Court was the fact that the plaintiff valued the suits differently for the

purposes of court fees and jurisdiction, and secondly that:

“no other market value has been proved by the

petitioners/plaintiff that the settled revenue of the land is Rs.

3,000/- and in the absence of any evidence in this regard, the

trial court has rightly considered the market value of the

property in dispute in accordance with the market value fixed by

the Collector in order to charge the stamp duty, which is the

correct market value.”

16

In the opinion of this court, there was no compulsion for the plaintiff to, at

the stage of filing the suit, prove or establish the claim that the suit lands were

revenue paying and the details of such revenue paid. Once it is conceded that the

value of the land [per explanation to Section 7 (iv-A)] is to be determined according

to either sub clauses (v), (va) or (vb) of the Act, this meant that the concept of

“market value” – a wider concept in other contexts, was deemed to be referrable to

one or other modes of determining the value under sub clauses (v), (va) or (vb) of

Section 7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this

case. The reasoning and conclusions of the High Court, are therefore, not

sustainable.

18. In view of the above discussion, the impugned judgment and order, and that

of the trial court, cannot stand. Consequently, the question of what is the market

value, based on the revenue payable, would be an issue to be tried in the suit.

Resultantly, the appeals succeed and are allowed without any order on costs.

.…....................…….....................J.

 [ARUN MISHRA]

.…....................…….....................J.

 [M. R. SHAH]

..……….......................................J.

 [S. RAVINDRA BHAT]

New Delhi,

February 19, 2020.

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 15 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. 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 16 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.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._414 of 2021

(arising out of SLP(C)Nos.27651 of 2008)

THE CONSERVATOR AND

CUSTODIAN OF FOREST & ORS. ...APPELLANT(S)

VERSUS

SOBHA JOHN KOSHY & ANR. ...RESPONDENT(S)

J U D G M E N T

 ASHOK BHUSHAN, J.

Leave granted.

2. 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. Writ Appeal was filed by

the appellants questioning 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

1

petitioners compensation for the land directed to be

restored to them by the earlier judgment of the High

Court.

3. Brief facts of the case giving rise to this

appeal are:-

3.1 The land which is subject matter of this

appeal alongwith other land situate at Pannu

Valley in Wayanad, State of Kerala was said

to be vested in the Government under the

Kerala Private Forest (Vesting and

Assignment) Act, 1971 (hereinafter referred

to as “Act, 1971”). The respondents with

their predecessor-in-interest filed

application in the Forest Tribunal under

Section 8 of the Act, 1971 for declaration

that the lands were not vested forest.

3.2 The Forest Tribunal rejected the claim,

against which matter was taken to the High

Court, the High Court remanded the matter to

the Tribunal for fresh determination. After

prolong litigation, ultimately by Division

2

Bench judgment of the Kerala High Court dated

10.02.1998, the MFA filed by the respondents

was allowed by the High Court and it was

declared that land in questions are exempted

from provisions of Act, 1971. The High Court

also held that writ petitioners proved

cultivation and that the area was cultivated

with plantation and crop. The judgment of

the Forest Tribunal was set aside declaring

that land not vested in the Government on the

appointed date under Act, 1971.

3.3 After the above judgment of the High Court,

it was incumbent upon the custodian to

restore back the possession of the land.

Restoration of several other pockets of land

which were subject matter of MFA No.934 of

1990 before the High Court were done to the

owners, but the land, which were subject

matter of O.A. No.67 of 1995 and O.A. No. 68

of 1995 could not be restored due to one or

other reasons.

3.4 On part of land, Adivasis were in possession,

who could not be dispossessed by the State.

3

For certain period, there was interim order

operating in favour of the Adivasis against

their dispossession of the land. There were

correspondences between respondents as well

as State Forest Officer regarding restoration

of land. A proposal was submitted by the

Divisional Forest Officer to allot

alternative land to the respondents, which

could not be materialised. Divisional Forest

Officer recommended that instead of

restoration of the land, compensation be paid

to the land owners whose land could not be

restored, the respondent expressed their

agreement to receive compensation.

3.5 A Writ Petition No. 3340 of 2004 was filed by

the respondents in Kerala High Court. In the

writ petition, it was submitted that land in

question was valued by Tehsildar Mananthavady

recommending value of land involved in O.A.

No.67 as Rs.1,000/- per cent and the land

involved in O.A. No.68 as Rs.800/- per cent.

In the writ petition, writ petitioners prayed

4

that either they may be restored the original

land or they may be paid compensation as

assessed by the District Tehsildar. The

learned Single Judge allowed the writ

petition. In paragraph 6 of the judgment,

following was held by the High Court:-

“6. ......................In view

of these developments, I am of

opinion that in so far as the

respondents are not able to

restore the land in compliance

with the judgment of this Court,

the petitioners are certainly

entitled to compensation for the

land, which is to be restored to

them. Now that the Tahsildar has

assessed the value of the land

which, according to him, is very

reasonable compared to the market

value of the land in the area, I

am of opinion that the petitioners

should be paid compensation for

their land at the rate assessed by

the Tahsildar as per Ext. P10.

Accordingly, there would be a

direction to the respondents to

pay to the petitioners

compensation for the land directed

to be restored to them as per Ext.

P1 judgment of this Court in

respect of the lands covered by

O.A.Nos. 67 and 68 of 1975 at the

rates assessed by the Tahsildar as

per Ext. P10. Amounts calculated

as above shall be disbursed to the

respective petitioners within a

5

period four months from the date

of receipt of a copy of this

judgment. The writ petition is

allowed as above.”

3.6 The Conservator of Forest and other State

authorities aggrieved by the judgment filed a

Writ Appeal No.1757 of 2007 before the

Division Bench of the Kerala High Court. The

writ appeal has been dismissed by the

Division Bench. The Division Bench held that

under Section 8 of Act, 1971, the custodian

had statutory duty to restore the possession

of such land on the basis of the order, which

having not done, the statutory duty is

violated. By holding so, the writ appeal was

dismissed. The Conservator of Forest and

other State respondents have filed this

appeal challenging the judgment of the

Division Bench.

4. Shri Pallav Shishodia, learned senior counsel

appearing for the appellants submits that under

Section 8(2), all the land in dispute is a ecological

6

fragile land within the meaning of Kerala Forest

(Vesting and Management of Ecologically Fragile

Lands) Act, 2003 (hereinafter referred to as “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. Learned senior

counsel has referred to Section 8(2) of the Act,

2003, which provides 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). It is submitted

that prior to 2003 enactment, ordinance was

promulgated namely Kerala Forests (Vesting and

Management of Ecologically Fragile Lands) Ordinance,

2000. 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

7

Vikasana Pravarthaka Samithy, possession cannot be

delivered to the respondents. There being no

challenge to the vesting under Act, 2003, learned

Single Judge could not have been directed for payment

of compensation.

5. Learned counsel appearing for the respondents,

Shri Kuriakose Varghese refuting the submissions of

the learned senior counsel for the appellants

contends that right of possession is a crystallised

right. 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. The judgment delivered by learned Single

Judge has rightly recognised the legitimate right of

the respondents. The judgment of the High Court

dated 10.02.1998 in favour of the respondents being

prior in time to Act, 2003, the valid and just

compensation claim of the respondents could be

8

negated. 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. It is further submitted

that Act, 2003 is not applicable in the facts of the

present case. It is submitted 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). The custodian

having violated his duty as entrusted under Section 8

of Act, 1971, 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.

9

6. We have considered the submissions of the learned

counsel for the parties and have perused the records.

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. In paragraph 18 of the judgment,

following was held by the High Court:-

“18. XXXXXXXXXXXXXXXXXXXX

...................They have pleaded

and proved that the lands in question are

exempted from the provisions of Act 26 of

1971. They have proved cultivation and

that the area cultivated with plantation

crops cannot be forest. The appellants

have proved positively their case as on

the appointed day.”

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

10

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.

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

11

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

12

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

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.

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

14

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

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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. 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

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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.

......................J.

( ASHOK BHUSHAN )

......................J.

 ( R. SUBHASH REDDY )

......................J.

 ( M.R. SHAH )

New Delhi,

February 10, 2021.

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