' This petition under Article 199 of the Constitution of Pakistan, 1973 calls in question the order dated 31-12-1976, passed by the Additional Commissioner & Settlement Commissioner (Lands), Karachi determining the categories of the petitioner and respondents 1 to 4 under the Settlement Scheme No, 6.
2. The order impugned in this petition was passed pursuant to the order dated 12-6-1974, passed by Mr. Justice Agha Ali Hyder (as he then was) in Writ Petitions Nos. 135 of 1972 and 384 of 1972, respectively filed by Moosa and S.Ali Akhtar respondent Nos. 1 and 2 against the petitioner and respondent Nos.3 and 4, whereby the case was remanded to the Additional Settlement Commissioner, Karachi. The operative part of the order reads as follows: ' I am therefore clearly of the opinion that the impugned order is not sustainable. I will therefore set aside the order, allow the petitions, and remand the case to the Settlement Commissioner (Land)
Hyderabad, who is now empowered to hear these cases, for a fresh decision in accordance with the directions dated 22-2-1971 of this Court reproduced earlier."
3. The directions dated 22-2-1971, were given in earlier writ petitions filed by Moosa and S.Ali Akhtar Jafri which were allowed by consent of the parties. The directions were as follows:- "As a result of the arguments which went on the whole of yesterday, all the learned counsel agree that the order of the Additional Settlement Commissioner (Land), dated 30-8-1968, be quashed.
The case is therefore remanded to the Settlement Commissioner and the parties to the petition will be entitled to press their entitlement which will be decided according tqrlaw under Scheme No,6."
4. In the impugned order, the learned Additional Commissioner & Settlement Commissioner (Lands) has placed the petitioner in the Fifth Category and Moosa, respondent No,1, in the Fourth Category, and S.Ali Akhtar in the Third Category.
5. I have heard Mr.Abdul Majeed Khan learned counsel for the petitioner and Mr.S.H.Rizvi learned counsel for respondent No,1, one of the legal heirs of respondent 2 namely, Ghulam Hussain has appeared in person. No one has appeared on behalf of respondents 3 and 4. The department is also not represented before me.
6. Mr.Abdul Majeed Khan has submitted that the petitioner has been placed in a wrong category and he was entitled to be placed in the Fourth Category. Alternatively, he submitted that respondent. 1 has been wrongly placed in the Fourth Category and he should have been placed in the Fifth Category.
7. In order to appreciate the submission of the learned counsel it is necessary, if relevant provisions on the basis of which the categories of the petitioner and respondents 1 to 4, have been determined in the impugned order, which are contained in Chapter II of Settlement Scheme No,6 a copy of which has .been placed on record may be reproduced herein below:- "ELIGIBILITY:
3. The following order of priority between the claimants shall be followed namely:- ' Firstly those who already hold valid temporary allotment of land (other than lease for any specified period) within the same date.
' Secondly those who are holding temporary allotment of land previously but have since been displaced or are liable to dispossession under Scheme No,5.
' Thirdly those who have registered their claims for the allotment of land in the old Federal Area of Karachi to whom no temporary allotments have so far been made ; ' Fourthly those who permanently reside and also owned immovable property in former Federal Area of Karachi, who had registered their claims outside former Federal Area of Karachi but before the enforcement of this scheme got their claims transferred to that area; and ' Fifthly other claimants whose claims are registered in some other districts but may subsequently be transferred to former Federal Area of Karachi provided that preference will be given to such claimants whose claims have not at all been satisfied anywhere else."
8. Now, reverting to the first submission, the learned counsel for the petitioner submitted that the finding of the learned Additional Commissioner & Settlement Commissioner (Lands), Karachi, that the petitioner did not own any immovable property in Karachi except the property which was the subject-matter of the enquiry, was wrong. In support of the contention the learned counsel referred to a photo stat copy of the Extract from P.T.I. Register, which shows that the petitioner own property No,1-A-6/7, Nazimabad, Karachi and another photo stat copy of the Form of an allotment order dated 27-7-1965, showing that plot No,19 in Sector 24, measuring 2,222 square yards was allotted to him.
9. The learned Settlement Commissioner in the impugned order has stated that there is no record to show that the petitioner and respondents 3 and 4 hold immovable property Mr.Abdul Majeed Khan has not been able to show that the documents on which he is placing reliance now were placed before the learned Additional Commissioner & Settlement Commissioner. He has not even taken the stand that they are available on his record. Therefore, the finding given by Settlement Commissioner was on the basis of the record and evidence produced before him at the relevant time. Even otherwise the extract of the P.T.I. Register shows that the change of ownership took place on 2-12-1972, but the ownership of the property on that date will not relevant. Similarly allotment letter relied upon by Mr.Abdul Majeed Khan is dated 27-7-1965, while the material date would be the date that the Scheme came into force i.e., 15-3-1967. Therefore, it was necessary for the petitioner to have proved before the Settlement Commissioner that at the relevant time he continued to own this property. I, therefore, find that the petitioner has been rightly placed in the Fifth Category.
10. Yet there is another aspect of the matter and that is that for an entitlement for being placed in the Fourth Category, the petitioner should have got their claim transferred to Karachi before enforcement of the Scheme but their claims were admittedly transferred on 24-8-1967, almost more than five months after the enforcement of the scheme.
11. As regards the alternate submission that respondent Moosa should have been in Fifth Category, it is submitted by Mr.Abdul Majeed Khan that his claim was registered at Hyderabad, but was transferred to Karachi after the enforcement of Settlement Scheme No,6, and therefore, he should have been placed in the Fifth Category.
' In reply, Mr.Rizvi has relied on a photo stat copy of certified copy of an application made to the Settlement Commissioner, Hyderabad stated that the petitioners claim were registered at Hyderabad and were transferred to Karachi under his No,TRAN/1/R/62 (Hyd), dated 26-3-1962. The learned Settlement Commissioner in the impugned order has stated as follows:- "He is a claimant of urban area having urban entitlement certificates for 5,276 P.I.Units. His claim for urban land was satisfied under Scheme No,V and his remaining claim was to be satisfied under Scheme No,VI. His claim was verified by Central Record Office, Lahore on 20-1-1967. Revalidated on 1-6-67. He is residing at Karachi where he also holds immovable property and his was registered at Karachi. Scheme No,VI came in operation in March 1967. His entitlement certificate regarding urban evacuee area abandoned in India was issued as a Certificate on Form UR V-130 85 Book No,437 for 5276 units in respect of his application and was authenticated on 20-1-67 and Revalidated on 1-5-
67. According to this certificate his form was registered at Karachi vide No,2880 VI. This was revalidated by the Office on Special Duty, Central Record Office Lahore on 1-5-67. Copy to him was delivered on 23-5-67."
' It is, therefore, clear that respondent Moosa's claim was transferred to Karachi prior to enforcement of the scheme.
12. However, Mr.Khan wanted me to read the date of revalidation i.e., 1-5-67 as the date of registration of the claim. The claim cannot be said to have been registered or transferred at a particular place when it is revalidated. It is the actual date when it is registered or transferred and in the present case claim of Moosa was transferred to Karachi on 26-3-1962 which was the date much prior to the enforcement of the scheme I, therefore, find that Moosa has also been rightly placed in the fourth category.
13. I, therefore, find no merits in this petition and accordingly dismiss it. Keeping the background of the litigation, in view, the parties are left to bear their own costs.