ASHOK BHUSHAN,J. - (1.) 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 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 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. 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 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 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. ;