1. ' By this writ petition orders dated 5-2-1962 and 24-12-1978 respectively passed by the learned Custodian and the learned Additional Custodian stand challenged. The order of the Custodian is challenged only to that extent wherein he had misdirected himself asking the petitioner-decree- holder of the lands in question to obtain a certificate under section 23 of the Pakistan Administration of Evacuee Property Act, 1957 for restoration of the property in writ decree in her favour by the Deputy Custodian.
2. ' The Custodian confirmed the decree dated 25-2-1961 passed by the Deputy Custodian vide his judgment dated 5-2-1962. The decree of the Deputy Custodian is to the effect that the land in suit was not an evacuee property as its owners were unable to leave this part of the territory for the occupied part of Jammu & Kashmir or India because they were killed in Mirpur during the war of liberation started by the people of Azad Kashmir in 1947 and the petitioner was the only heir surviving the deceased persons who (petitioner) never left her native land for any place outside Azad Kashmir and as such she was not an evacuee.
3. ' As soon as petitioner's brother Ram Saroop by name was killed and her brother's widow Shela Devi committed suicide by jumping into a well to escape the miseries of life, within the territory of Azad Kashmir; the lands left behind by them devolved upon her as a sole-heir under the provisions of Hindu Law. Despite the decree of the Deputy Custodian in favour of the petitioner, her land was allotted to the refugees by the Rehabilitation Authorities who on acquisition of the pieces of lands allotted under the provisions of the Land Acquisition Act, for construction of Mangla Dam, even received the compensation of the lands acquired under Government Order No,. 428/63 dated 23- 10-1963. By this order the evacuee lands allotted to the refugees were to be transferred to them by sale by the Costodian in order to award compensation to the allottees. The allottees of the lands acquired were entitled to 2/3rd of the compensation money or Rs, 20,000 whichever less. In other words by this order 2/3rd of the compensation of the lands or . a sum of Rs, 20,030 whichever was less, was received by the allottees of the lands owned by the petitioner and the remaining 1/3rd of the compensation money was received by the Custodian.
4. ' The question involved in this case is very simple.
5. ' The Character of the property in writ was determined by the competent authorities namely Deputy Custodian and the Custodian both. By their orders referred to above, the lands in question were declared as non-evacuee property. This being the case, by no stretch of law, the Custodian could have legally asked the petitioner to obtain a certificate from the Government as required by section 23 of the Pakistan Administration of Evacuee Property Act. This section relates to the evacuee property and not otherwise. The proper direction in respect of the restitution of possession of the property to the petitioner after confirming the decree was to be made advising her to go to a civil Court and not to the Government as the property in question was not an evacuee property.
6. This simple point escaped the notice of the learned Custodian as well as that of the learned Additional Custodian while determining the question of payment of compensation of the lands acquired.
7. The allotments of the lands of the petitioner in view of the decree passed by the Deputy Custodian and confirmed by the Custodian thereat, could not legally be made in favour of the refugees by the Rehabilitation Authorities. By this writ she has not proceeded against the refugee-allottees and no claim to the compensation paid to them was laid by her before me. As a matter of course, she has given-up her claim against them and it was why that they were not even impleaded herein as a party.
8. ' The Custodian is the only party from whom that much amount of compensation of the lands acquired is claimed by the petitioner-owner which was awarded to him by the Collector as his share under Order No,. 428/63 dated 23-10-1963 after deducting the amount of compensation paid to the refugee allottees.
9. ' The learned Custodian's direction in question to the petitioner is to the following effect : "Mst. Iqbal Begum has in her plaint prayed for restoration of the suit land to her. The prayer, I am afraid, cannot be acceded to unless she gets a certificate from the Government under section 23 of the Pakistan Administration of Evacuee Property Act, 1957."
10. Obviously, this direction was given without jurisdiction as Custodian had no power to give such a direction under section 23 of the Administration of Evacuee Property Act, 1957 because such a direction is envisaged therein in respect of evacuee property. The character of the property involved in the instant case is not that of evacuee property i,e, it is non-evacuee property And this being so, the aforesaid direction composed, is of no legal effect so also the impugned judgment of the learned Additional Custodian who was misguided by the impugned direction of the Custodian which stands annulled and deleted as such.
11. In the light of what has been stated above, this writ petition is accepted and the impugned part of the judgment dated 5-2-1962 of the learned Custodian is declared to be without lawful authority and of no legal effect so also the impugned judgment of the learned Additional Custodian dated 24-12-1978 and consequently, the petitioner is held entitled to the compensation of the lands acquired for which she has a decree dated 25-2-1961 of the Deputy Custodian and confirmed by the Custodian, to the tune of what has been left with the Custodian, after having made the payment of the amounts of compensation money to the refugee-allottees of the portions of lands allotted. The amount of compensation awarded to the petitioner by this order shall be paid to her either by the Collector, Land Acquisition concerned or the Custodian, as the case may be.