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Official Citation: 2017 MLD 627
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2016
Decision Date: 2016-09-22
Parties: Col.(R) JAVED AGHA and 31 others vs ARSHAD MAHMUD and 4 others
This judicial decision was delivered by the Islamabad High Court on 2016-09-22. The matter involves proceedings between Col.(R) JAVED AGHA and 31 others and ARSHAD MAHMUD and 4 others, officially reported as 2017 MLD 627. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2017 MLD 627
Court Name: Islamabad High Court Judge(s): Aamer Farooq Title: Col.(R) JAVED AGHA and 31 others vs ARSHAD MAHMUD and 4 others Case No.: Writ Petition No,1337 of 2001 Date of Judgment:2016-09-22 Reported As: 2017 MLD 627 Result: Petition dismissed
JUDGMENT
JUDGMENT AAMER FAROOQ, J.---Through this judgment the petitions mentioned in Schedule-A shall be decided as common questions of law and facts are involved. In this behalf the instant petition as well as the petitions mentioned in Schedule-B were decided by this Court vide judgment dated 21.01.2015, however, Civil Petitions for leave to appeal were filed and judgment dated 21.01.2015 passed by this Court was set aside; consequently the matter was remanded. In addition, number of petitions involving same questions of law and facts were filed subsequent to the remand of the case which are mentioned in Schedule-C. 2. The facts, in brief, are that the petitioners in most of the petitions are running guest houses in the residential areas of Islamabad which are controlled and regulated by the respondent i,e, Capital Development Authority (CDA). In the other petitions the petitioners are carrying on activities which are alleged as commercial; in residential areas of Islamabad regulated by the CDA. The respondent authority has served notices in most of the cases for discontinuation of the activities carried by the petitioners or has initiated action by imposition of penalties including fine and even sealing of the premises. The petitioners being aggrieved of the actions of CDA have challenged the provisions of Capital Development Authority Ordinance, 1960 (the Ordinance) as well as Islamabad Land Disposal Regulations, 2005 (ILDR) and Islamabad Residential Sectors Zoning (Building Controlled Regulations), 2005 (IRSZR). 3. Syed Naeem Bukhari, Senior Advocate Supreme Court appeared in the instant petition as well as Writ Petitions Nos.1790/2011, 3769/2015 and 3773/2015 and submitted that taking in gusts does not change residential character of the building. In support of his contention learned counsel submitted that the establishment of a guest house is not a phenomena unique to Islamabad or
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even Pakistan and contended that guest houses exist all over the world; that the lodging industry in Pakistan is governed and controlled by the Government of Pakistan, however, by taking in guests the residential nature of the building does not change and it remains house and is used by visitors as a temporary dweller. Secondly, it was contended by the learned counsel that in essence renting out a room or rooms for any period is not different from renting out premises for a few months or a year. In this behalf it was contended that in ILDR as well as IRSZR the land use is divided in various categories including residential and commercial and the renting out a room for a day or so is in essence the same as renting out a house or a building for a longer period of time. Thirdly, it was contended that by allowing a guest to stay in residential premises the property in question does not become a Hotel or Motel; that Hotel is defined in section 2(g) of Pakistan Hotels and Restaurants Act, 1976 which requires that there must be minimum of 10 rooms for letting for a hotel and for a restaurant under section 2. Ibid there has to be a public eating place. Therefore, the guest houses are neither hotels or motels but rather are registered under Sarai Act, 1867 and have commercial connections for electricity and gas supplies. It was contended next that there is no law which prohibits keeping of the paying guests in a house, therefore, the impugned actions of the CDA are in violation of Article 4 (2)(b) of the Constitution which provides that no person shall be prevented from doing that which is not prohibited by law. Learned counsel also contended that the very nature of a guest house is that it accommodates guests in house. It was submitted that the regulations framed by. CDA under section 51 of the Ordinance are on the altar of expediency and are mere instructions without any statutory status; that under section 51 of the Ordinance the authority has the power to make regulations which are to be published in the official gazette. Learned counsel further submitted that under regulation 1.2.92 of IRSZR the concept of non- conforming use was introduced which is alien to the Ordinance; that the regulations are made in exercise of executive authority and are not a statutory instrument but mere instructions. It was also contended that the Regulations cannot be placed at a higher pedestal than Rules or the Ordinance; that Rules are different from Regulations and are statutory in nature. Learned counsel also submitted that under the garb of Regulations CDA cannot prohibit an activity which otherwise is lawful and legal or even regulate the same. In this behalf learned counsel placed reliance on the case reported as PLD 2005 SC 193 to substantiate that reasonable restriction does not mean prohibition or prevention and the validity of prescribed qualification or the prohibition can be examined by the Superior Courts. Reliance was also placed on the cases reported as PLD 2011 SC 44 and 1997 SCMR 641. Learned counsel further contended that the fact that the phrase non- conforming use is not used in the parent Ordinance, therefore, it cannot be used in the Regulations framed by the CDA. Learned counsel also contended that the prohibition contained in the Ordinance and Regulations is in violation of Articles 2-A, 3, 4, 9, 10-A, 18, 24 and 25 of the Constitution. In this behalf reliance was placed on the case reported as PLD 2005 SC 193, PLD 1997 SC 342, PLD 1994 SC 693, PLD 2012 SC 292 and AIR 1986 SC 180. Reliance was also placed on PLD 2012 SC 664 and PLD 2012 SC 292. Learned counsel further contended that there is no law or provision in the Constitution which prohibits any citizen from keeping a paying guest in a residential accommodation, therefore, the actions of respondent authority are not tenable. Reliance was placed on PLD 2004 Lahore 376, PLD 1999 SC 80 and 2012 CLC 958. Learned counsel also contended that sections 46, 49-C, 50 and 51 of the Ordinance are unconstitutional as they- are hit by doctrine of excessive delegation of legislative powers. In support of his contention learned counsel placed reliance on the cases reported as PLD 1993 SC 341, PLD 1994 SC 105, PLD 1996 Lahore 542 and PLD 1989 Karachi 404. It was further contended that executive authority cannot be used to create offences and on this principle the charging sections are rendered ultra vires of the Constitution. Reliance was placed on PLD 1965 Dhaka 156, PLD 1983 SC 358, PLD 1988 SC 610. Learned counsel
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further contended that the CDA has failed to develop various sectors and hence is negligent to its statutory obligations while the population of Islamabad continues to grow exponentially. 4. Mr. Ali Raza, Senior Advocate Supreme Court argued in Writ Petition Nos.313/2014, 1799/2012, 1908/2012 (remanded cases) as well as Writ Petitions Nos.3446/2015, 3973/2014 and 4505/2014. Learned counsel contended that CDA under the Ordinance is obliged to prepare a Master Plan and phased Master Programme for the specified areas which should be approved by the Federal Government. Learned counsel also contended that there is no Master Plan approved by the. Federal Government vis-a-vis establishment of Capital Territory, therefore, the Regulations framed by the CDA allegedly in pursuance of the Master Plan have no legal sanctity. Reliance was placed on the cases reported as 1998 SCMR 2013 and PLD 1990 Peshawar 192. It was also contended that till to-date the Master Plan has not been produced in the Court. Learned counsel took the Court through various provisions of the Ordinance including sections 11, 12, 13, 14, 15 and 17 to 21 as well as ILDR including Regulations 3, 4, 5 and 6. Learned counsel also highlighted the provisions of IRSZR, 2005, in particular, Regulations 2.1, 2.1.1, 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.1.7, 4.1.23, 2.17.1, 2.17.3 and 2.17.5. Learned counsel contended that the reading of above provisions shows that CDA has certain obligations and duties such as to prepare a Master Plan and a Scheme and in this behalf to respond to the trends in the development. It was also contended that the bare reading of the Building Control Regulations shows that CDA has vested on to itself discretion to change the land-use as principle Regulation 2.1.5, however, the same cannot be read in isolation and has to be read in harmony with other provisions, therefore, change of the land-use as provided in Regulation 2.1.5 is ultra vires the Ordinance. Reliance was placed on the cases reported as PLD 1972 SC 279, PLD 2010 SC 759, PLD. 2006 SC 394, PLD 2011 SC 619 and 2005 SCMR 186. It was also contended that vide Regulation 2.1.7 CDA has exempted a class of professionals who used residential premises for the purpose of home occupation. In this behalf it was submitted that the list of professionals is not exhaustive and the CDA retains the discretion to allow any entity or individual the exemption under the garb of this Regulation, therefore, Regulations are discriminatory and also place excessive discretion on the authority. It was contended next that under the Regulation 4.1.23 the CDA has vested on to itself unfettered and unbridled powers which is excessive delegation and vested unfettered discretion in CDA, therefore, the same is liable to be struck down. Reliance was placed on the case reported as 2006 SCMR 705. It was also contended that the Regulations 2.17.3 and 2.17.5 are ultra vires the CDA Ordinance as the same vests discretion in the CDA to impose penalties which leads to discrimination, therefore, are liable to be struck down. It was contended finally that most of the definitions provided in 2005 Regulations are absurd and vague, therefore, need to be struck down. 5. Mr. Akram Sheikh, Senior Advocate Supreme Court in Writ Petition Nos.3537/2015 and 3796/2015 inter alia submitted that the CDA has been grossly negligent in fulfilling its statutory duty to develop the capital city, adhering to the best global practices of town planning. In this behalf learned counsel made a reference to the various cities as to how they have been developed over a period of time. Reference was also made to cases reported as PLD 2011 SC 619 and PLD 1993 Lahore 855. It was further contended that Article 268(6) of the Constitution places an obligation on Courts to construe the CDA Ordinance, 1960 with such adaptation that it conforms to scheme of tracheotomy of powers and inviolability of fundamental rights as enshrined in 1973 Constitution. Reference was made to the case reported as 1959 SCMR .1477 and Director of Public Prosecutions v. Mollison (2003 UKPC 6); that the Ordinance violates the Constitutional scheme of tracheotomy of powers by conferring judicial functions on an executive authority making them a judge in their own cause; that imposition of penalty and fine by CDA violates Article 10-A 'of the Constitution. Reference was made to Reyes v. R (Belize) (2002) UKPC 11 and PLD 2005 SC 873, PLD 1975 SC 506. It was also contended that CDA does not have the jurisdiction to determine whether non-conforming use has in fact occurred. Reliance was placed on the case reported as PLD 1965 SC 698; that
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enforcement of civil rights and obligations must be preceded by judicial determination through due process and fair trial by an impartial tribunal. Reliance was placed on the case reported as PLD 2012 SC 553, PLD 2012 SC 923 and 2015 PLC (CS) 537. It was also contended that the Ordinance violates the Constitutional scheme of tracheotomy of powers by delegating legislative functions to an executive authority thereby giving it unfettered power of legislating offences, penalties and restrictions. Reliance was placed on the case reported as 2005 SCMR 186, PLD 2002 Lahore 521 and PLD 2016 Lahore 35; that enacting law restricting the fundamental rights of a person is legislative function of the Parliament under the Constitutional scheme of tracheotomy of powers and cannot be delegated to another organ such as an administrative authority under executive control. Reliance was placed on the cases reported as 2007 YLR 2183, 1999 YLR 42 and 1995 MLD 1728; that arbitrary or unfettered powers are outside the scope of reasonable restriction, therefore, any classification into zones which does not flow from the referred rational is arbitrary and hence ultra vires. Reliance was placed on the cases reported as PLD 2007 SC 642 and 2001 PLC (C.S.) 933. It was also submitted that restriction imposed by the CDA on the fundamental rights to the property under Articles 23 and 24 of the Constitution fail proportional its test of reasonable restriction as laid down by the Superior Courts. Reliance was placed on the case reported as PLD 2013 Lahore 693 and PLD 1958 SC 41; that the CDA did not consider the true essence and meaning of the term 'Regulation' while making the impugned Regulations, therefore, the same is different from restriction. Reliance was placed on the case reported as PLD 2005 SC 193. It was also contended next that the Rules and Regulations made by the Capital Development Authority under the Ordinance are ultra vires the Ordinance. Reliance was placed on the cases reported as PLD 2011 SC 619 and 2005 SCMR 186. Finally, it was contended that the offence of nonconforming use created under Regulation 2.17.3 of IRSZR is vague and arbitrary. Reliance was placed on the cases reported as PLD 2000 SC 1.11 and 2005 SCMR 728. 6. Mr. Jawad Hassan, Advocate Supreme Court appearing in a number of petitions adopted the arguments of learned counsel for the petitioners and contended that the Regulations framed by the CDA are vague and arbitrary and through them no penalty can be imposed. It was also contended that running of guest houses from residential buildings does not amount to commercial activity as the word commerce is not attracted. 7. Barrister Natalya Kamal, adopted the arguments of the learned counsel for the petitioners but added that there is no Master Plan vis-a-vis Islamabad. In this behalf with respect to the concept of Master Plan reference was made to LDA Master Plan Rules, 2014 and reference was also made to Master Plan Delhi, 2021. It was also contended that in Regulations, 1993 the guest houses were not included in commercial sectors, however, in 2005 Regulations the same is regarded as commercial activity, hence, no plot as such has been earmarked in the said activity or has been sold/auctioned as such. 8. Learned counsel for the respondents inter alia submitted that 2005 Regulations do not exceed the primary legislation i,e, the Ordinance. In this behalf regarding the nature and scope of delegated legislation reference was made to the case reported as PLD 1965 Dhaka 156. In this behalf it was contended that the legislature through Ordinance has provided the basic structure/framework, however, the details have been left for the executive to fill in by way of Rules and Regulations. In this behalf reliance was made to sections 2(c) 11, 12, 13 and 49(c) of the Ordinance to show that the basic framework has been provided by the legislature by way of Master Plan for a new city and development of scheme including zoning and imposition of prohibition on use of property in contravention of provisions of the Ordinance as well as Rules and Regulations. Reliance was made on the case reported as 2005 SCMR 186. In this backdrop it was contended that the executive has been authorized to make Rules and Regulations under sections 50 and 51 of the Ordinance. It was also submitted that it has been argued that Regulations impose fine whereas the
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Act does not provide so, this does not make the Regulations ultra vires. Reliance was placed on the case reported as 2016 SCMR 69. In light of the referred judgment it was submitted that section 46 provides for imposition of six 'months punishment or fine for violating any provision of the Ordinance, Rules or Regulations and that the penalty imposed under Regulation does not exceed the ,maximum penalty provided under the referred provision. Learned counsels also submitted that in PLD 2011 Islamabad 36 this Court elaborately discussed the Building Regulations, 1993 and 2005 but did not Mike them down. Similarly, reliance was placed on the case reported as PLD 2004 Lahore 305. Learned counsel also submitted that the prohibition to run guest houses from residential building is not in violation of Articles 4, 9, 18 and 25. Reliance was also placed on PLD 2004 Lahore 305. It was also contended that restriction imposed fulfills the criteria as propounded by the Superior Courts in various judgments; that CDA Magistrate exercising the powers under the Ordinance and the Regulations does not violate the tracheotomy of powers, reliance was placed on the case reported as PLD 2016 SC 637. Learned counsel also submitted that in a. Recent judgment the Peshawar High Court in case reported as 2015 PTD 2114 held that the power exercised by Customs Officers were judicial in nature; that running of guest houses from residential building is a commercial activity. Reliance was placed on 2015 CLC 84. It was also contended that the Master Plan duly approved by the Federal Government exists and the notification/decision of the Cabinet- in this regard was also placed on record. Learned Additional Attorney-General adopted the arguments of the learned counsel for the CDA. 9. The basic grievance of the petitioners is that they are being restrained by CDA from running guest houses or other activities which are commercial in nature from houses/buildings constructed in residential areas of Islamabad. In this behalf earlier petitions mentioned in Schedule-B were filed and decided by this Court vide judgment dated 21.01.2015. Against the referred judgment various Civil Petitions for leave to appeal were filed bearing C.Ps. Nos.121, 126, 128,129 and 372 to 373 and 1137 of 2015. The referred petitions came up for hearing before the august Apex Court on 14.10.2015 and after hearing the learned counsel for the parties the Hon'ble Supreme Court of Pakistan was pleased to pass the following order:-- "We deliberated over the arguments address at the bar but we noticed is that many of these provisions have not been read altogether nor have they been considered in their proper perspective. It would not be possible for us to hear these cases as a Court of first instance and give verdict without having the benefit of a verdict of the High Court which under the law is bound to give its verdict one way or the other vis-a-vis the application, interpretation and effect of the provisions relevant in this behalf. In this view of the matter, all the learned ASCs for the parties agree to the remand of all these petitions to the High Court for decision afresh in accordance with law." ' Therefore, in light of the order of Hon'ble Supreme Court of Pakistan the matter was remanded to this Court for decision afresh regarding the provisions of the Ordinance, their application, interpretation and effect. 10. The petitioners have made a challenge to various provisions of the Ordinance which provide framework for exercising functions and powers by CDA and Rules and Regulations framed under the Ordinance. Since challenge has been made to the parent legislation i,e, Ordinance as well as the Regulations framed thereunder, therefore, it is worthwhile to discuss the law on the basis of which the vires of a legislative instrument can be examined. In this behalf the Hon'ble Supreme Court of Pakistan in case titled Lahore Development Authority through D.V. And others v. Imrana Tiwana and others (2015 SCMR 1739) laid down the principles to be applied and considered by the Court when striking down or declaring a legislative enactment as void or unconstitutional; the august Apex Court observed as follows:--
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"Following are the principles which must be applied and considered by the court when striking down or declaring a legislative enactment as void or unconstitutional. ' There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two; (ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity; (iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; (iv) Court should abstain from deciding a Constitutional question, if case could be decided on other or narrower grounds; (v) Court should not decide a larger Constitutional question than was necessary for the determination of the case; (vi) Court should not declare . a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution; (vii)Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality; (viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and (ix) Mala fides should not be attributed to the Legislature." 11. The various provisions of the Ordinance relevant for the purposes of the instant petitions are sections 11, 12, 13, 1445,46, 49(c), 50 and 51. For the sake of brevity and convenience the referred provisions are reproduced below and are as follows:- "11 . Master Plan And Master Programme. ---The Authority shall prepare a 'master plan and a phased master programme for the development of the Capital Site, and may prepare a similar plan and programme for the rest of the Specified Areas, and all such plans and programmes shall be submitted to the [Federal Government] for approval. 12. Preparation Of Schemes By Local Bodies Or agencies.---(1) The Authority may, pursuant to the master plan and the master programme, call upon and 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 preparation of the scheme or schemes within a reasonable time. (2) Such schemes, may relate to: (a) Land use, zoning and land reservation, (b) Public buildings. (c) Industry. (d) Transportation and communications, highway, roads, streets, railways, aerodromes. (e) Telecommunication, including wireless, television, radio, telephone. (f) iodization 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 or scientific interest or natural beauty. (3) The (Federal Government) by notification in the official Gazette, add to alter or amend the list of subjects given in subsection (2) and any such addition alteration or modification shall take effect as if it had been enacted in this Ordinance. (4) The expenditure incurred on the preparation of any such schemes as aforesaid shall be borne as agreed to between the Authority and the local body or agency, and in the event of
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disagreement between them as may be determined by the (Federal Government) (5) No planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority. 13. Preparation of schemes by Authority.---The Authority may, pursuant to the master-programme, itself prepare, when it considers it desirable to do so in the public interest, schemes for the Specified Areas relating to the matters enumerated in sub section (2) of section 12. 14. MANNER AND FORM ETC. OF SCHEME. ' All schemes under section 12 and section 13 shall be prepared in such manner and form 'as the Capital Government may specify, and shall contain among other things the following information namely:- (a) description of the scheme and the manner of its execution; (b) estimate of costs and benefits; (c) allocation of costs to the various purposes to be served by the scheme. 15. Power of the Authority.---(1) Subject to the other provisions of this Ordinance and the rules, the Authority may take such measures and exercise such powers as may be necessary for the carrying out of the purposes of this Ordinance. (2) Without prejudice to the generality of powers conferred by subsection (1), the Authority may. (i) acquire any land in the…
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