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Petitioner: Col. (R) JAVED AGHA and others VS Respondent: ARSHAD MEHMUD and others
Court Name: Islamabad High Court Judge(s): Shaukat Aziz Siddiqui Title: Col. (R) JAVED AGHA and others vs ARSHAD MEHMUD and others Case No.:Writ Petitions Nos.1337 of 2001, 2209 of 2008, 2175 of 2009, 4032 of 2010, 1790
JUDGMENT
Reported As: 2015 YLR 998, 2015 C.L.R. 402 Result: Petition dismissed Judgment JUDGMENT SHAUKAT AZIZ SIDDIQUI, J.---Through this Single Judgment, Writ Petitions detailed in the table given below are being disposed of together, having same subject matter i,e, regarding use of the residential accommodations for commercial activities commonly known as Nonconforming use in Islamabad. Writ Petitions No with title, nature of usage and business conducted by the petitioners is given as under:-- Sr. No. Writ Petition Number with Title of the CaseNature of usage and Detail of Business 1. Writ Petition No. 1337 of 2001, Col. (R) Javed Agha And others v. Arshad Mehmud , and othersGuest House 2. Writ Petition No. 2209 of 2008, Khawar Manzoor Atta and others v. Sajjad Hussain and othersT.V. 1 Channel
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3. Writ Petition No. 2175 of 2009 Dr. Manzoor Hussain Chaudhry v. Muhammad Najeeb Aslam and othersGuest House 4. Writ Petition No. 4032 of 2010 Muhammad Yousaf v. Ajmal Bukhari, Deputy Commissioner, CDAGuest House 5. Writ Petition No. 1753 of 2012 Cristina Afridi v. Special Magistrate CDA and othersRestaurant 6. Writ Petition No. 1754 of 2012 Muhammad Naeem Asmat v. Special Magistrate, CDA and otherRestaurant 7. Writ Petition No. 1755 of 2012 Attique Ullah Khan v. Special Magistrate, CDA and othersRestaurant and Catering Services 8. Writ Petition No. 1756 of 2012 Mobeen Nisar and others v. special Magistrate, CDA and othersClub/Restaurant 9. Writ Petition No. 1757 of 2012 Messr Hang Chang Enterprises other v. Special Magistrate CDA and othersRestaurant 10. Writ Petition no. 1799 of 2012 Raja Fida Hussain v. special Magistrate, CDA and othersRestaurant/K.C. Grill 11. Writ Petition No. 1908 of 2012 Baigum Nussrat Akhtar and others v. special Magistrate, CDA and othersRestaurant 12. Writ Petition No. 2038 of 2012 Mrs. Samina Malik Lakhani v. special Magistrate, CDA and otherRestaurant and Boutique 13. Writ petition No. 2744 of 2012Association/ Centre of arts culture and dialogue and others
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Messrs kuch Khaas v. special Magistrate, CDA and others 14. Writ Petition No. 2098 of 2013 Rizwan Ullah and others v. Capital Development Authority, and otherGuest Houses 15. Writ Petition No. 3249 of 2013 Syed Basir Ali Shah v. Capital Development Authority, and otherStudent Hostel 16. Writ Petition No. 3250 of 2013 Muhammad Munir v. Capital Development Authority, and othersStudent Hostel 17. Writ Petition Ni. 4360 of 2013 Sikandar Ali v. Capital Development authority, and otherGuest House 18. Write petition No. 4507 of 2013 Tanveer Ahmed v. Capital Development Authority and othersBoys Hostel 19. Writ Petition No. 313 of 2014 Tanveer Akhtar v. special Magistrate CDA, and othersRestaurant 20. Writ Petition No. 1203 of 2014 Sameer Randhawa v. special Magistrate CDA, and othersRestaurant 21. Writ Petition No. 2025 of 2014 Muhammad Shahid v. Deputy Commissioner, CDA, and othersOffice for Architectural work 22. Writ petition No. 2165 of 2014 Alayz School v. Deputy Commissioner, CDA and othersSchool 23. Writ Petition No. 2239 of 2014Restaurant
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Attique Ullah Khan v. Special Magistrate CDA, and other 24. Writ Petition No. 4056 of 2014 K.C. Grill and others v. Federation of Pakistan and othersRestaurant Saloons, shopping centers, Caf, Gym, etc. The petitioners have prayed for the issuance of similar nature of writs in their separate writ petitions, so the prayer made in the Writ Petition No,1337 of 2001 is being reproduced as under:-- (A) A declaration that petitioners have a constitutional right to engage in any lawful trade or profession and that business of running guest houses in residential buildings where short term residential facilities are provided is a lawful business which cannot be stopped by the CDA and the action of the CDA of forcible closure of the guest houses is violative of Articles 9, 12, 14 and 18 of the Constitution. (B) A declaration that the summons issued by respondent No,1 under section 68 of Cr.P.C. To the petitioners and proceedings taken by him pursuant to the same are without lawful authority and of no legal effect; (C) A declaration that use of the residential premises for providing short terms residential facilities, is neither violative of any provision of the CDA Ordinance, 1960 nor it is a criminal offence and the action of the respondents to treat it as criminal offence or to lodge criminal prosecution of the petitioner is illegal, mala fide, abuse of the official authority, void and of no legal consequence. (D) A declaration that residential buildings are being used for non residential purposes by scores of other category of persons, and only petitioners are being discriminated and forced to close their business of Guest Houses, which action of the respondents is violative of Article 25 of the Constitution, is mala fide in law and facts and is liable to be declared a nullity in the eye of law. (E) A declaration that respondent No, 1 is not "Magistrate" appointed under the Cr.P.C. And does not have any judicial powers hence he cannot try the petitioner for any criminal offence and in any case the allegation against the petitioner for violation of any Regulation does not constitute a criminal offence. (F) A direction restraining the respondent No, 1 for issuing any notice/summons to the petitioner in respect of the running of their business of Guest Houses on the ground/allegation that the same constitutes a "non-conforming use" or that activity is violative of the Building Control Regulations 1993 and from entertaining any complaint of CDA official in this behalf. (G) A declaration that cognizance of any offence under the CDA Ordinance 1960, can only be taken by a Court and that respondent No, 1 is not a criminal court constituted or governed under Section 6 Cr.P.C. (H) A declaration that respondent No, 1 is not a duly appointed member of "Bench of Magistrate" for Islamabad Capital Territory not vested with the powers of a Magistrate of any class by the "Provincial Government" for purposes of "Islamabad Capital Territory" (I) A declaration that respondent No, 1 who is receiving salary and other facilities from the CDA is not a Court subordinate to the High Court and that his appointment as a CDA Magistrate is violative of the Constitutional provisions relating to separation of judiciary from the executive. (J) A declaration that the proceedings before respondent No, 1 being violative of injunctive orders of the Senior Civil Judge, Islamabad are otherwise also without lawful authority and of no legal effect. (K) A declaration that respondent No, 2 is not a Deputy Commissioner of the District. Also, he has not vested the powers of District management and is not a court constituted under any law and
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notice dated 10-4-2001 issued by respondent No, 2 is absolutely without lawful authority, an abuse of the nomenclature of "Deputy Commissioner" which is of no legal effect or consequence. (L) A direction to respondent No, 2 to refrain from passing orders of similar nature, to any of the other petitioner. (M) A declaration that section 49(c) of the CDA (Amendment) Act, 1966 in ultra vires of the CDA Ordinance, 1960, the constitution and a declaration under sections 15, 46b and 51 are simultaneously tined and can have no application qua Building Regulations, 1993 ' made by Capital Development Authority itself. (N) A declaration that the Building Regulations, 1993 have not been made "to carry out the purpose of" the CDA Ordinance and the said Regulations have not been approved by the parliament nor made by the Central Government hence the same have no legislative significance. (0) A declaration that so-called "non-confirming use" is not an offence under the Ordinance or the Rules and cannot be treated as a criminal offence in exercise of general powers under the Ordinance. The notices issued by the respondent by No, 3 are without lawful authority and of no legal effect. (P) A declaration that Regulations Nos. 2.15, 2.20, 2.21, 2.25, 2.38, 2.39, 2.44, 5.01, 5.02 and 5.03 of the Building Control Regulation, 1993, are ultra vires of the CDA Ordinance, 1960, suffer from excessive delegation, are violative of the fundamental rights of the petitioners, are unreasonable and irrational and/or use of residential buildings as Guest Houses does not constitute a nonconforming use. (Q) A direction to CDA to act in accordance with law, justice, fairness and honesty to regulate the business of the petitioners under a uniform scheme without destroying their livelihood. (R) A direction to respondent No, 2 through its chairman to refrain from initiating proceedings of any sort against the petitioners for alleged violation of Building Control Regulation, 1993, prohibiting business of Guest Houses as 'non-conforming use' of residential buildings. (S) A direction to WAPDA and SSP Islamabad to refrain from acting upon any direction from CDA qua the petitioners based on 'non-confirming use or commercial activity' and refrain from disconnecting electric connections to the guest houses at the behest of CDA or to forcibly close the guest houses. (T) Appropriate orders enforcing the fundamental rights (Articles 9, 14 and 18) of the petitioners to run the Guest houses in the residential buildings without interference from CDA and its officials on the basis or grounds that the same constitutes "nonconforming use" or a commercial activity and from disconnecting water supply to the guest houses on the above basis or ground. (U) A declaration that the action of CDA qua the petitioners business activity of Guest Houses is per se discriminatory and appropriate orders enforcing fundamental rights guaranteed by Article 25 of the Constitution. (V) Any other relief, writ, or order , or direction deemed just, appropriate or neccessary by the honourable Court may be granted, issued or passed. 2. Learned counsel for petitioners in Writ Petition No,1337/2001, Mr. S. Naeem Bukhari, ASC, argued that Guest houses in Residential premises exist not only all over Pakistan but around the world. That CDA Ordinance 1960 defines a building but not a residential house and by taking in guest, the nature of a residential plot does not change as there is no difference between a residence for rent for a month or for a week or a night. The bar is created by CDA Regulations under which the authority can regulate an activity which per se is not illegal but cannot prohibit. The section 46 read with 49-C order ibid makes it an offence to contravene a Regulation, suffer from excessive delegation of powers. The Regulations are unreasonable and irrational apart from exceeding the parameters of the Ordinance; therefore, direction or challan or threat to close down the guest houses is in violation of Articles 9, 14, 18, 24, 38(b) of the Constitution of Islamic Republic of Pakistan.
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It is lastly contended that house magistrate is being paid salary by CDA but exercise judicial powers, which violates the doctrine of separation of powers. 3. Learned counsel for petitioners, in other connected Writ Petitions argued that it is the domain of the Federal Government to notify Rules viz subject matter of land required to be used with respect to the master plan; therefore, in absence of such rules, the CDA cannot exercise its power under section 51 of the Ordinance to frame Regulation which pertain to the specific issue of land use. The impugned Zoning Regulations and ILD Regulations on account of the subject matter of the impugned regulations are without authority and issued in excess of powers vested in the CDA. Hence, they are illegal and of no legal effect. The impugned Regulation 2.1.5 is in conflict with the apparent unexceptional and prohibitory provisions of the earlier stated regulations, allows for an exemption and vests in the CDA the unfettered discretion to change the nature of land use on request of allottees provided that the layout and functional plan permits such changes. Therefore, the declared 'land use' at the time of allotment by CDA's own formulation is not written on stone and is capable of being altered when necessary. By virtue of CDA Ordinance, the CDA has been vested with a certain discretion, which it may use in discharge of its statutory functions. However, such discretion as per the judgments of the Superior Courts has to be reasonable and within the four corners of the law. That the Regulation 4.1.23 of the Zoning Regulations vests in CDA power to exempt any person, form any of these regulations as no criteria or parameters or circumstances are defined or prescribed through which the discretion can be regulated. Resultantly, the same falls under the domain of unfettered discretion and is liable to be declared as unlawful and illegal. Similarly, in Regulation 2.1.7 the Authority has itself retained the power to exempt or permit resident professionals from using the residential premises for home occupation. Learned counsel further contended that such unfettered discretion can be nothing but a patent violation of the Constitutional guarantees as enshrined under Articles 9, 18 and 25 of the constitution and a gateway to corruption which has destroyed the fabric of our society. 4. On the other hand, learned counsel for respondents/CDA has contended that CDA is a development authority which is focused towards taking care of the general public of the Capital and important community interests. Chapter 2 of the CDA Ordinance provides the duties and powers of CDA. Section 11 provides that "the authority shall prepare a master plan and a phased master-programme for the development for the rest of the specified Areas and all such plans and programmes shall be submitted to the Federal Government for approval". This section is followed by section 12 which provided that the Authority may, pursuant to the master plan and the master programme, call upon any local body or agency operating in the Specified Areas to prepare, in consultation with the Authority, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency and thereupon the local body or agency shall be responsible for the preparations of the scheme or schemes within a reasonable time. Such schemes may relate to:-- (a) Land use, zoning and land reservation. (b) Public buildings. (c) Industry. (d) Transportation and communications, highway, road, streets, railways, aerodromes. (e) Telecommunication, including wireless, television, radio, telephone. (f) Atilization of water , power and other natural resources. (g) community planning housing slum clearance amelioration. (h) Community facilities including water supply, sewerage, drainage, sewage, disposal, electricity supply, gas supply and other public utilities. (I) Preservation of objects or places of historical, scientific interest or natural beauty.
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The perusal of above schemes clearly shows that CDA is aimed towards protecting important community interest and the whole community of the capital and not individual, therefore, restriction on non-conforming use provided by CDA is a restriction which is actually aimed at serving the interest of the whole community view and even if it affects the constitutional rights of a, few individuals, it cannot be considered as unreasonable but a reasonable restriction permitted by law. It has been held through number of pronouncements by the superior courts of the country that Fundamental rights are subject to law and reasonable restrictions can be imposed by law. The reasonableness of restriction has also been elaborated upon in these case-laws such that the restrictions are reasonable if they have been made to protect the rights of other persons or important community interest, reliance is placed on PLD 2011 SC 44, PLD 2013 Lahore 693 and PLD 2007 SC 642. It is further contended, that Authority may make regulations, not inconsistent with the rules, if any, on all matters for which regulations are necessary or expedient; and such regulations shall be published in the official Gazette. Moreover, section 50 provides that the Federal Government may, by notification in the official Gazette, make rules, to carry out the purposes of this Ordinance. Provided that no rules shall be made on any of the matters specified in section 38 and intention behind enacting of this section was to allow the authority to make regulations so as the effectively dispose of the policies provided for in the Act. The question whether the Building Control Regulations, 1993 suffer from excessive delegation is concerned, it is contended that excessive delegation takes place where a certain piece of legislation does not provide any policy or framework and shifts the same to the executive to legislate but the policy framework for nonconforming use has already been provided in section 49C and these regulations are simply elaborating the same for effective disposal, therefore, these regulations are not inherent of excessive delegation. 5. It is further contended that Special Magistrates and Deputy Commissioner, CDA are the employees of CDA for the purpose of acquisition proceedings and is not a court under section 4 of the Cr.P.C., therefore, cannot pass any sentence or impose any penalty thereof or is authorized to pass judicial order or have the power to pass any sentence order under the CDA Ordinance, 1960, since are being paid from CDA thus is not a Court subordinate to High Court. Therefore, the appointments as CDA Deputy Commissioner or Magistrate is in violation of the constitutional provisions. So far the separation of judiciary from the Executive is concerned, the Islamabad High Court, Islamabad vide its judgment reported as PLD 2011 Islamabad 36 already observed that notice dated 23-5-2011 issued by the Deputy Commissioner CDA is in accordance with the CDA Rules and suffer from no legal infirmity on the grounds that under section 36-A(2) of the Capital Development Authority Ordinance, 1960, the Deputy Commissioner or the Commissioner exercising powers under this Ordinance shall be deemed to be a Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898. A proceeding before him shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Pakistan Penal. Code, (XLV of 1860). Moreover, clause 2.17.3 of the Islamabad Residential Sectors, Zoning, (Building Control) Regulation-2005, empowers the Deputy Commissioner to impose penalty on nonconforming use of a residential building which reads as under:- 2.17.3 "A non-conforming use of a residential building may render the owner and the occupant of the building liable on first conviction to pay a fine of Rs.0.5 Million and in the case of failure to discontinue to non-conforming use within 15 days of the conviction, to an additional fine which may extend to five thousand rupees (Rs.5000) for every day during which he has persisted in the failure. After a persistent non-conforming use for a period of three months, the owner or as the case may be the occupant shall be liable to be evicted from the building summarily and the allotment/ conveyance deed of the plot may also be cancelled.
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2.17.4. The, penalty mentioned above in this regard, shall be imposed by the Deputy Commissioner only." In view of above, the court observed that, petitioner in the instant petition has not denied the non- conforming use of the premises; hence, respondent No.1 has rightly issued the impugned notice dated 23-5-2011 to the petitioner. The notice dated 23-5-2011, issued by the Deputy Commissioner; CDA is in accordance with the CDA Rules and suffers from no legal infirmity. 6. Learned counsel for respondents further argued that although Article 18, of the Constitution of Islamic Republic of Pakistan provides the freedom to conduct lawful trade business or profession provided that nothing in this Article shall prevent:-- (a) The regulation of any trade or profession by licensing system; or (b) The regulation of trade, commerce or industry in the interest of free competition therein; or (c) The carrying on, by the Federal Government or a provincial government, or by a corporation controlled by any such Government, or by a corporation controlled by any such Government, of any trade, business, industry or service to the exclusion, complete or partial of other persons. The freedom of trade, business or profession is Controlled by the said Article itself. The word lawful trade, business or profession is sufficient to qualify such right. A profession, trade or business can be hedged to the extent of a lawful prohibition imposed upon it by law where after such trade or business becomes unlawful." In view of above, the word lawful trade, business or profession is sufficient to qualify such right. The right to life and liberty of a citizen can only be restricted or abridged if it is in "accordance with law"; such right is therefore, not unfettered. It is lastly contended that comparison with such type of other wrongs by the Government itself in Islamabad and other individuals/ corporations in other cities has no force as it cannot be made basis to justify further wrongs on the plea of equal treatment or non-discrimination. In view of above submissions, learned counsel for CDA prayed for dismissal of writ petitions. 7. I have considered the arguments advanced by the learned counsel for the parties and have gone through the available material with their eminent assistance. 8. The perusal of pleadings of the parties reveal that there is no controversy about the fact that the premises which are in the use/occupation of the petitioners were allotted to the petitioners or their predecessor in interest for residential purpose and as per the terms and conditions of the allotment orders these premises should only be used for residence and any other use of these premises would tantamount to non-conforming use which is not within the mandate of the allotment. In their petitions the petitioners have admitted that they have established or intend to establish restaurants, schools, guest houses, offices and other commercial entities in the premises which are/were allotted to them or their predecessors in interests. The main contention of the petitioners who have been using their premises as guest houses is that even after the establishment of the guest houses, the nature and use of these premises had not been changed as the guest use the premises for residence. 9. Learned counsel for the petitioners who have been using their premises as guest houses has contended that concept of guest house is well established not only in the developed countries of the West but also in the neighboring States as guest houses provide shelter to the persons visiting the Capital City at a cheaper rate. It is the contention of the learned counsel for these petitioners that the guest houses were established after obtaining the license under the Sarais Act, 1867 and the alleged interference by the respondents in the business of The petitioners is violation of the fundamental rights of the petitioners enshrined in the Article 18 of the Constitution of Islamic Republic of Pakistan. The learned counsel for the petitioners who have established the schools and other commercial activities in the premises has argued that right to life and liberty is fundamental right enshrined in the Constitution of Islamic Republic of Pakistan. Learned counsel for the
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petitioners has further argued that Article 9 gives the right of life and liberty and if the state or any of its agency stops the source of livelihood from any person moreso from the petitioners, this will be the attempt to take the right of life as no one can survive without source of making both ends meets. Learned counsel for the petitioners has further referred to Article 25 of the Constitution of Islamic Republic of Pakistan wherein it is provided that all the citizens will be equal before the law and Article 4 which provides that every citizen will be treated equally in accordance with law and contends that a number of government offices, courts and even the office of respondent No. 1 are established in the residential premises and so far no action has been taken against them but the petitioners have been screened out by the respondents who are being targeted without any legal excuse and justification in the sheer violation of the Article 25 of the Constitution of Islamic Republic of Pakistan. Learned counsel for the petitioners has further argued that the most of the commercial activities in the disputed premises were established prior to the making of the Islamabad Residential Sector Zoning (Building…
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