1999 PLP 897 (CLC)

' Date of hearing: 26th March, 1997. BASHARAT AHMAD SHAIKH, J.‑‑‑ There is a dispute between the appellants and the Custodian of Evacuee Property which arose when the Custodian deducted an amount of Rs.4,18,857 from the compensation which was payable to the appellants in lieu of acquisition of evacuee land which stood allotted to the appellants. When the Custodian finally refused to pay the amount mentioned above the appellants filed a writ petition in the High Court which has been dismissed. This appeal arises out of the judgment pronounced by the High Court on 16th of May, 1996. Before the High Court a number of points were raised to attack the action of the respondent, Custodian of Evacuee Property, in deducting one‑third of the compensation amount as his share. However, before us only one point has been raised by the learned counsel for the appellants, Mr. Muhammad Rafique Dar. He contended that the deduction of one‑third amount as share of the Custodian is based on a Government order passed on 27th of July, 1967 which is not applicable to the case in hand. A perusal of the order by the Custodian on 14th of June, 1995, which was challenged in the writ petition, shows that the respondent did take the stand that the Government Order mentioned above authorised him to make the deduction as aforesaid. Therefore, the Order may be taken under consideration. Order was issued on 27th of June, 1967 and is known as "Evacuee Property Allottees (Compensation) Order, 1967". It was issued in pursuance of section 56 of the Administration of Evacuee Property Act, 1957 read with section 18 of the same Act. Paragraph 3 of the Order lays down that where any evacuee property is acquired by the Government for the execution of any development scheme, the allottee shall be paid two‑third of the amount of A compensation money. It is provided in paragraph 4 that two‑third of the amount of compensation shall be paid to the allottee if the Custodian is satisfied that "the case is covered by this Order". It was contended by Mr. Muhammad Rafique Dar that deduction of one‑third share can only be made by the Custodian if the case is one in which land has been acquired for a development scheme but in the present case land was acquired not for a development scheme but for defence purposes. He referred us to clause (3) of paragraph 2 which contains the definition of a "development scheme". It reads as follows:‑‑ "(3) 'Development Scheme' means a scheme pertaining to the development of the Azad Jammu and Kashmir Territory certified to be as such for the purposes of this Order, by the Development Secretary to the Azad Government of the State of Jammu and Kashmir. " It was averred by the appellants in clause (viii) of paragraph 6 of the writ petition that land under reference had not been acquired for the development scheme but for defence purposes. This assertion was supported by an affidavit. The reply of the Custodian of Evacuee Property to this averment was as follows:‑‑ (viii) the reply to sub‑para. (viii) is that land was acquired for public purposes whether it was defence purpose or development scheme, it does not give any right to the petitioners to receive full amount of compensation. " The reply does not contain any denial and, thus, amounts to admission of the position adopted by the appellants that the land had not been acquired for development scheme. The High Court rejected the arguments under discussion by making the following observations:‑‑ "The objection raised by the learned counsel for the petitioner with a stress laid on the words development scheme' used in the aforementioned provisions in reference toward, carries no substance as the share of the allottee in case of award has been determined and is not qualified by the abovementioned words. As such, is of no avail to him particularly, when the relevant law has been framed in the background of the status of the land discussed above." In our view the view taken by the High Court cannot be upheld. Paragraph 3 of the Order of 26th of June, 1967 is only applicable to a development scheme. The definition of a development scheme, reproduced above, clearly lays down that a development scheme is only that which is 8 certified to be so by the Development Secretary. No such proof has been brought on the record by the respondent. In fact, as already mentioned, it was not denied that it was not a development scheme for which land had been acquired. It was contended by Ch. Shah Wali, the learned counsel for the Custodian that if paragraph 3 of the Order is not applicable to the case the appellants cannot receive compensation at all. We see no force in the argument. The appellants were allottees of the evacuee land and their right to. receive compensation has not been in dispute at any time. For the reasons stated above the appeal is accepted and the judgment of the High Court is set aside. Consequently, the writ petition filed by the appellants is accepted and the Custodian of Evacuee Property is directed to make immediate payment of Rs.4,18,857 to the appellants. However, the parties will bear their own costs throughout. Q.M.H./M.A.K./318/SC(AJ&K) Appeal accepted.