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Writ Petition No. 50 of 1980, decided on 16th May, 1983.

--: S. 23-Land acquired, compensation of-Owner of property stands on fundamentally firm footing as compared to mere allottee of evacuee property whose right being very weak-Custodian, trustee of compensation to money, held, bound to pay, compensation to

owners of property acquired.

B. A. Sheikh for Petitioners.

Ch. Shah Bali for Respondents.

Date of institution : 28th September, 1980.

By this writ, order dated 5th February, 1980 passed by the learned Additional Custodian in review is under challenge. By the impugned order, the order dated 8th January, 1968 and the subsequent orders thereto passed by the learned Custodian were amended by the learned Additional Custo dian to the effect that whatever land in writ comprising Khewat No.'27 measuring 175 kanals and 18 marlas situate in village Bharmat, Tehsil Mirpur was allotted by the Rehabilitation authorities, cannot legally be restored by the Custodian under section 23 of the Administration of Evacuee Property Act. There is no quarrel with this proposition. This is also the finding of the learned Custodian. To what extent the land could be restored, the Custodian and the Additional Custodian differ and further it was also held by the learned Additional Custodian that the Custodian was wrong in giving compensation of the land acquired to the petitioners and another to the extent it was awarded to the Custodian.

It was for the construction of Mangla Dam that lands including the evacuee property were acquired by the Government.

The evacuee property which stood allotted to the refugees or other wise, its compensation was ordered to be apportioned between the allottees and the Custodian in the ratio of 2/3 and 1 /3 or Rs. 20,000 to the allottees out of the compensation whichever is less i.e. either 2/3 of the compensation or Rs. 20,000 whichever was less. At the time, the orders reviewed were made by the Custodian, the entire land in question stood already acquired by the Government. By the application of the principle viz. fiction of law, it was declared by the learned Additional Custodian that it would be deemed that the compensation of the lands allotted stood allotted to the allottees so also for the lands unallotted taken as restored and consequently to this extent, the petitioners were held entitled.

The learned Custodian as well as the learned Additional Custodian failed to find out the exact area of the land not allotted. The Additional Custodian was mistaken because some of the record was not traceable so as to be available to him for consideration.

From the perusal of the files of the Collector, it transpires that the entire lands comprising Khewat No. 27 were allotted to different persons. The allotments were so carelessly and capriciously made by the Rehabilitation authorities that survey No. 25 stood allotted to many persons even over and above its actual area. In other words, allot ments over allotments were made by the Rehabilitation authorities. The allottees were to receive their due share of compensation on execution of sale deeds in their favour by the Custodian. As a result of many an allotment over an allotment, the: sale-deeds were also executed in favour of different persons in respect of the same land allotted to each. The learned Custodian finding himself in such a capricious situation cancelled some of the allot ments and sale-deeds thereof telling that fraud was practiced upon him by the Rehabilitation authorities(Revenue Officers, namely, Messrs Aziz-ur Rehman and Khalil Ahmad and some others with the result that sale-deeds were executed in respect of the same land allotted to different persons by the Rehabilitation authorities. It is on record that the allotments of 51 kanals and 11 marlas out of survey No. 25 in the names of Riasat Khan, Muhammad Faazil, Ali Muhammad and Muhammad Khan were cancelled and so the sale-deeds on basis of these bogus allotments executed in their names were also annulled. 87 kanals of lands stood allotted to Alam Din and one Ghulam Nabi out of survey No. 25 which measures 1.04 kanals and 13 marlas. There is an insertion in record in relation to allotment of Ghulam Nabi showing that leis allotment was made from survey Nos. 25 and 34. Survey No. 34 measures 20 kanals and 16 marlas which is found inserted in ink into the typed matter without any initials thereon. It is not clear from the record before me as to what amount of land is allotted to him from survey No. 25 and what from survey No. 34. Therefore, it will be for the Collector to ascertain whether there was any tampering or foul play in respect of survey No. 34. Allotment in respect of survey No. 33 is also to be ascertained. The allotments which were cancelled from the names of above mentioned persons thereby causing release of land measuring 51 kanals and 11 marlas under survey No. 25, shall be deemed restored to the extent; it remains unallotted, that is to say that after deduction of the area of valid allotments of survey No. 25, the remaining shall be taken as restored. Again after the ascertainment of the valid allotments of the lands actually allotted from Khewat No. 27, if any of the land is found unallotted, the entire compensation of the same shall be the entitlement of the legal heirs of Bhola Nath and Mst. Jeewani as determined by the learned Custodian, When the amount of compensation of the evacuee land allotted to a person can be awarded to him for appropriation, there is no sense to stop the remaining portion of the compensation from being paid to the owners of the evacuee property acquired. The petitioners and their sister 'were held entitled to inherit the property left by their father and grand-mother by the learned Custodian. Here law of equity and good conscience is to prevail. An owner of the property stands on a, fundamentally, firm footing as com pared to a mere allottee of the evacuee property who has a very weak type of right. And whereas Custodian is the trustee of the compensation money, which he is bound to pay, in right of, to the owners of the property acquired in question.

That being so, I am of the view that whatever amount of compensation is left with the Custodian, after making payments of the compensation to the allottees of the petitioner's land acquired, shall go to the legal heirs of Bhola Nath and Mst. Jeewani as rightly determined by the Custodian.

The impugned judgment of the learned Additional Custodian and the Custodian shall stand rectified in view of the order of this Court in hand. The Collector, Land Acquisition concerned shall hold an enquiry so as to see what was the actual area of the lands in question allotted and what was left behind which would be deemed restored as declared by the learned Custodian as well as by the learned Additional Custodian. Steps for re covery of the amount from the bogus allottees are to be taken by the Col lector in the manner provided by law. This writ petition stands disposed of accordingly.

M. A. K. Petition disposed

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