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Official Citation: 2024 CLC 1299
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Maemona Azhar etc. vs Capital Development Authority through its JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2024 CLC 1299. In this matter between Maemona Azhar etc. and Capital Development Authority through its JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 CLC 1299
Court Name: Islamabad High Court Judge(s): Aamer Farooq (C.J) Title:Maemona Azhar etc. vs Capital Development Authority through its
JUDGMENT
Reported As: 2024 IHC 90, 2024 CLC 1299 Result: Petition Dismissed Judgment
JUDGMENT AAMER FAROOQ C.J. Through this judgment, the petitions mentioned in Schedules-A and B, shall be decided as common questions of law and facts are involved. 2. The facts, in brief, are that the Petitioners in most of the petitions are running hostels/shared student accommodations in the residential areas of Islamabad which are controlled and regulated by the Respondent Authority i.e. Capital Development Authority (CDA). In some of the petitions, the Petitioners are requesting for directions from this Court to the Respondent Authority to take action against owners/operators of such hostels/shared student accommodations in residential areas of Islamabad. In the other set of cases, the Respondent Authority has either served notices for discontinuation of the non-conforming use by the Petitioners, or has initiated action by imposition of penalties including imposing fine and even sealing of the premises. The Petitioners being aggrieved of the actions of CDA have challenged the notices issued, and have challenged the vires of Islamabad Residential Sectors Zoning (Building Controlled Regulations), 2005 ("the 2005 Regulations") (as listed in Schedule-A) and the Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020 ("the 2020 Regulations") (as listed in Schedule-B). 3. The Petitioners submit that they are providing shared student accommodation/hostels facilities and as such the students are using these premises as places of residence as shared households. The Petitioners argue that they are not engaging in any commercial activity and are only using the premises for residential purposes. It has also been argued that their rights to life, liberty, freedom of trade and right to hold property are being violated and as such the rights guaranteed under
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Articles 18, 10A, 23, and 24 of the Constitution are being infringed. The Petitioners have also claimed that there is no specific prohibition in law against operating hostels in residential areas. They argue that "nonconforming use" has not been defined by the CDA Ordinance, 1960, while the term "building" as defined under section 2(d) of the Ordinance has been given too wide a definition which cannot be whittled down through Regulations. The Petitioners point out the difference between "commercial activity" and "commercial use", and have argued that using a residential building as shared accommodation/hostel is different from using the same as a school, hospital, restaurant, office, etc. The Petitioners claim that using residential buildings as hostels does not change the residential character of the building and thus does not fall under the definition of "non- conforming use". Furthermore, the Petitioners have challenged the 2005 Regulations as well as the 2020 Regulations for being ultra vires the Constitution, specifically Articles 18, 23 and 24. They state that classification of use of premises can only be created by the legislature and that in this case there is no parent legislation permitting such classification. The Petitioners have also called into question the competence of CDA to create a prohibition through Regulations. 4. The Respondent Authority (CDA) submits that in all the connected petitions, the plots in question are in the nature of Residential Houses and as such can only be used for residential purposes. The use of residential houses as shared accommodation/hostels is non-conforming use under the relevant Regulations and as such the Petitioners are liable to the penalty provided under law. The Respondent Authority has placed reliance on, inter alia, Col.(R) Javed Agha and 31 others vs. Arshad Mahmud and 4 others[2017 MLD 627 Islamabad], Mrs. Shamshad Butt vs. Deputy Commissioner CDA, Islamabad and 3 others[2023 CLC 304 Islamabad]. 5. Arguments by all parties have been heard at length and record perused. 6. At this juncture, it is important to note that the petitions challenging the vires of the 2005 Regulations, as listed in Schedule-A, have become infructuous for two reasons; firstly, this Court has already decided the question of vires of the 2005 Regulations in its judgment in the case of Col. (R) Javed Agha and 31 others vs. Arshad Mahmud and 4 others dated 22.09.2016, reported as 2017 MLD 627 Islamabad, and, secondly, the 2005 Regulations stand repealed by virtue of clause 5.8(i) of the 2020 Regulations which reads as follows: "5.8 REPEAL AND SAVINGS Following Regulation is hereby repealed: i. Islamabad Residential Sectors Zoning (Building Control) Regulation 2005 is hereby repealed" 7. In the petitions listed in Schedule-B, the Petitioners have challenged the actions taken under, and the vires of, the 2020 Regulations; and, have also questioned competence of CDA to classify use of property. Each of these challenges will be discussed in sequence. 8. Under section 49C of the CDA Ordinance, if any premises are being used in contravention of the Ordinance or Regulations, the Authority is empowered to require the user of such premises to desist from unauthorized use by an order in writing. If such order is not complied with, the Authority may, after providing an opportunity to be heard to such user, remove, demolish or alter the premises, or alternatively, may stop the use of the land and may use such force including police force as is necessary. The Authority is also entitled to recover the cost thereof from the person responsible for such use. The said provision is reproduced hereunder: "49C. Removal of building, etc., erected or used in contravention of this Ordinance.- (1)If any building, structure, work or land is erected, constructed or used in contravention of the provisions of this Ordinance or of any rule, regulation or order made thereunder, the Deputy Commissioner, or any person empowered in this behalf by the Authority, may, by order in writing, require the owner, occupier, user or person in control of such building, structure, work or land to remove, demolish or so alter the building, structure or work, or to desist from using or to so use the land, as to be in accordance with the said provisions.
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(2)If an order under sub-section(1) in respect of any building, structure, work or land is not complied with within such time as maybe specified therein, the Deputy Commissioner, or any person empowered in this behalf by the Authority, may, after giving the person affected by the order an opportunity of being heard, remove, demolish or alter the building, structure or work, or stop the use of the land and, in so doing, may use such force including police force as may be necessary and may also recover the cost therefor from the person responsible for the erection, construction or use of the building, structure, work or land in contravention of the provisions as aforesaid." 9. The 2020 Regulations provide a comprehensive mechanism to be followed by CDA while exercising its powers to regulate use of property, to determine any use to be non-conforming and to seal subject premises on basis of non-conforming use. Before discussing the procedure provided, it is worthwhile to note the relevant definitions under the 2020 Regulations. Clause 1.2 sub-clause (9)defines "Authority" as the Capital Development Authority as defined under the CDA Ordinance; sub-clause (10) defines "Authorized Use" as use of the building as authorized by the Authority except otherwise specifically prescribed or permitted; sub-clause (35)defines "Competent Authority" as Chairman CDA, concerned Member, or any other officer empowered by the Authority to approve plans and to control the building activity; sub-clause (52) defines "Family" as a group of persons related by blood or marriage, and if not so related, of not more than five persons living together and maintaining a common household; sub-clause (72)defines "House" as a building to be used for residential occupancy of one or more families as prescribed under these Regulations; sub-clause (92)defines "Non conforming Use" as the use of a plot or structure thereon not conforming to the purpose authorized or permitted under these regulations or the conditions of allotment; sub-clause (121) defines" Residential Building" as a building authorized for residential occupancy by one or more families but does not include hostels or lodging houses or guest houses; sub-clause (122)defines "Residential Plot" as a plot allotted exclusively for residential purpose; sub-clause (123)defines "Residential Use" as a building or part of it authorized for residential occupancy by one or more families; sub-clause (146) defines "Use" as the purpose for which a plot or building thereon is authorized or permitted under these regulations. Clause 2 of the Regulations provides for authorized uses of buildings and clause 2.17 specifically prohibits non- conforming uses. Clause 2.17.1 bans non-conforming use of any land or building or part of a building; clause 2.17.2 provides that any building or structure designed for an intended use which is not authorized under these regulations or conditions of allotment shall either be removed or converted into a building or structure designed for a use which is authorized under these regulations or conditions of allotment. Clause 2.17.3 provides fines to be imposed on first conviction of non-conforming use and, in case of re-occurrence, provides that the fine to be paid on second conviction will be twice the amount payable upon first conviction, and that the user/occupier shall be evicted and the Authority shall take control of the premises. Clause 2.17.4 provides that only the Director Building Control, CDA may impose the fines. Clause 2.17.5 provides that where non- conforming use exists, show cause notice of 07 days is to be issued by the Building Control Directorate, after which 15 day notice may be issued to cease non-conforming use. After expiry of the 15 days notice period then, Director Building Control, CDA, or any other officer so empowered, may issue an order to seal the premises and in pursuance of such order the premises shall be sealed by Director Enforcement CDA, or any person empowered by the Authority in this regard, in the presence of Magistrate, CDA. The relevant provisions are reproduced as follows: "2.17 BAN ON NON-CONFORMING USES 2.17.1 No land or building or part of the building shall be put to a nonconforming use. 2.17.2 Any building or structure or part of the building designed or intended for a use, not authorized or permitted under these Regulations or conditions of allotment, shall either be removed or
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converted into a building or structure designed or intended for a use authorized or permitted under these Regulations or conditions of allotment. 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 mentioned below:-- Residential Rs. 500,000/- Class-III Shopping Centre & I&T Centre, Rs. 750,000/- F&V, Industrial building Marakiz Rs.1,000,000/- Blue Area Rs.1,500,000/- Mauve area, H-Series& all other types Rs.1,000,000/- and in the case of re-occurrence, on 2nd conviction to pay a fine double as mentioned above and 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 shall also be cancelled and possession of the building will be taken over by the Authority. 2.17.4 The penalty mentioned above in this regard shall be imposed by Director Building Control, CDA only. 2.17.5 With a view to maintain sanctity of Building Regulations, without prejudice to any proceedings pending under these regulations, premises, where non conforming use exits may be sealed by Director Enforcement CDA or any person empowered by the Authority in the presence of Magistrate, CDA. Sealing may be done after issuance of order for sealing of said premises by Director Building Control, CDA or any person empowered by the Authority and after expiry of notice of 15 days & show cause notice of 07 days, issued by Building Control Directorate. Premises may be de-sealed by the order of the next higher authority i.e. Member (Planning & Design), CDA or any person empowered by the Authority on submission of fine / dues and application along with affidavit (from the owner) that, the said premises shall never be put in non- conforming use again. The case will be processed after confirmation of ownership / dues/ litigation from Directorate of Estate Management, CDA." 10. In case titled Mrs. Shamshad Butt vs. Deputy Commissioner CDA, Islamabad and 3 others cited as [2023 CLC 304 Islamabad] this Court provided comprehensive guidelines regarding the procedure to be followed by the Authority in cases of non-conforming use. The relevant extract is reproduced hereunder: "20. In view of the above discussion, this Court comes to an irresistible conclusion that the CDA authorities including the Deputy Commissioner and Officers of Building Control Section are to follow certain important guidelines for future purpose while dealing with the cases of non- conforming use in Islamabad Capital Territory, which are as under: i. The Building Control Inspector who visit the building / office / house, which was under non- conforming use has to submit a written report clearly stating therein the name, date, time when the building was visited as well as the reasons on the basis of which he reaches to the conclusion that building is under non-conforming use. ii. The report must contain the timeline of non-conforming use tentatively to assess the quantum of fine by the Deputy Commissioner, CDA till the removal of non-conforming use. iii. Any visiting card, sign board, pictures, video evidences, letter head correspondence, which could be made basis of opinion of non-conforming use of the building may also be made part of the report including but not limited to the statement of individual who are occupant in the building, if any. iv. The Deputy Commissioner CDA on the basis of such report may initiate the proceedings in terms of Section 49-C of CDA Ordinance,1960 read with the relevant clauses of Islamabad Residential
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Sector Zoning (Building Control) Regulations-2005, shall issue notice to the occupant/allottee/owner accordingly. v. The Deputy Commissioner after issuing notice to the occupant at the first instance, if comes to conclusion that building is continuously under non-conforming use and he has given due opportunity of hearing to the occupant, who whether joins the proceedings or otherwise, may pass an-interim order of sealing of the premises by all means without the final verdict. vi. In case, the occupant undertakes to remove subject non-conforming use within reasonable time, the Deputy Commissioner may on the undertaking give such opportunity for removal of the non-conforming use for a limited period, which could be verified after the specified time line. In case, the occupant has not removed the property from non conforming use, Deputy Commissioner may pass a final order of imposing penalty and sealing of the premises. vii. The Deputy Commissioner shall issue notice to the allottee along with the report of Building Control Inspector conveying him non-conforming use of the property. viii. The Deputy Commissioner shall ensure the proper service of notice to the occupant by way of Registered Post and also by Special Messenger and may even affix the notice upon the subject premises before taking the action. ix. The Deputy Commissioner shall take the report of Building Control Section, CDA and may put the same or confront to the occupant or the allottee for his input or rebuttal by way of affidavit and may also extend an opportunity to the occupant/landlord/allottee to rebut the same. x. The Estate Management Section of the CDA can only cancel the allotment or conveyance deed of such premises under non conforming use, if the Deputy Commissioner reaches to the conclusion that the owner is guilty/liable for non-conforming use under the law and even persistently using the building in a similar manner, despite passing of the order. xi. The Estate Management Section, CDA shall independently issue a notice to the allottee before cancellation of allotment on the basis of order of the Deputy Commissioner if no plausible explanation has been rendered by the allottee within prescribed time referred in the notice. xii. In terms of clause 2.17.5 of Islamabad Sector Zoning Building Regulation 2005, the building under non-conforming use may be sealed after expiry of 15 days of first notice issued by Building Control Directorate by Director Enforcement, CDA or any person empowered by the Authority in presence of Magistrate of CDA upon issuance of order for sealing of said premises by Director Building Control CDA. xiii. The Deputy Commissioner, CDA while imposing fine upon the occupant shall pass speaking order justifying his penal action against the occupant/allottee." In light of the above, it is abundantly clear that the Authority is required to follow the Regulations in letter and spirit before sealing any premises on the basis of non-conforming use and where the procedure and mechanism as provided in the Regulations has been properly followed, there can be no exception to the sealing of premises. From bare reading of the 2020 Regulations, it is clear that Residential Plots are authorized to be used for residential occupancy by one or more families. Renting out individual rooms to students on shared accommodation basis, as is being done in the instant cases, does not fulfill the criteria for residential use. It must also be noted that under the definition of "Residential Building" the use of the same as hostels or lodging houses or guest houses has been clearly and specifically excluded. This Court is, therefore, of the view that when the Authority has followed proper procedure, has issued the notices as mandated, the action of sealing of premises cannot be said to have been done ultra vires. 11. The next challenge to be considered is that of vires of the Regulations in reference to constitutional rights and provisions. It must be noted that Fundamental Rights, specifically under Articles 18, 10A, 23, and 24 of the Constitution, invoked by the Petitioners are not absolute and are subject to restrictions and limitations which may be imposed by law. CDA has been created and
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empowered under the CDA Ordinance as the regulator to, inter alia, regulate use of land and to make Regulations as necessary for such regulation of land. There has been no specific attack on CDA's power to frame Regulations, however, in some of the connected petitions, it has been argued that CDA cannot determine or classify use of land to be non-conforming. In this regard, it must be noted that similar questions had arisen, and have been answered by this Court, in previously decided petitions vide consolidated judgement in case titled Col.(R) Paved Agha and 31 others vs. Arshad Mahmud and 4 others dated 22.09.2016, reported as 2017 MLD 627 Islamabad. The main point of contention in these petitions was whether the use of residential properties as guest houses in residential areas of Islamabad was permissible, and whether the respondent (CDA) was legally competent to take action against violations of the relevant law and regulations on the basis of non-conforming use' of residential properties. The main questions arising in the said case were of vires of the provisions of the CDA Ordinance as well as the 2005 Regulations framed there-under; and the competence of the Authority to classify and prohibit types of uses of residential properties. While answering the question of vires, this Court in its previous judgement analyzed the relevant precedents as follows: "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:- "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. (i) 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 a 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."" While placing reliance upon the Supreme Court dicta in Lahore Development Authority through D.V. and others v. Imrana Tiwana and others[2015 SCMR 1739], this Court held the 2005 Regulations to be intra vires and not in conflict with any constitutional rights or provisions. The same principles shall be applied while answering the question of vires of the 2020 Regulations. It must also be
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noted that there is no material change in the provisions regarding non-conforming use under the 2020 Regulations. 12. The overall scheme of CDA Laws, including the Ordinance and the Regulations framed there- under, was discussed in detail by this Court in its previous judgement cited 2017 MLD 627(ibid) and the scheme and purpose of the said provisions was summarized as follows: "12. The bare reading of the referred provisions shows that CDA was required to prepare a Master Plan and phased Master-Programme for the development of Capital Site as well as specified areas. In this behalf plan and programme so prepared were required to be approved by the Federal Government. The petitioners have vehemently argued that there is no Master Plan for Islamabad Capital Territory as no approval was accorded to the plan and programme by Federal Government. During the course of arguments learned counsel for the respondents and representative of the Cabinet Division appeared in person and placed on record Minutes of Meeting of the Cabinet held on 26.10.1960 for approval of the Master Plan and Master-Programme of Islamabad. The minutes placed on record are reproduced below and are as follows: Copy No. SECRETT MEETING OF THE CABINET HELD ON WEDNESDAY, THE 26TH OCTOBER, 1960 AT 4:30 P.M. PRESENT The President. The Minister for Health, Labour and Social Welfare. The Minister for Foreign Affairs and Commonwealth Relations. The Minister for Law. The Minister for Food and Agriculture, Rehabilitation and Works. States and F.R. and Finance. The Minister for Industries. The Minister for Railways and Communications. The Minister for Education. The Minister for Fuel, Power and Natural Resources. The Minister for Commerce. The Minister for National Reconstruction and Information, Kashmir Affairs and Minority Affairs. The Minister for the Interior. The Cabinet Secretary. The Deputy Secretary to the Cabinet. ---- BY SPECIAL INVITATION The Chairman, Capital Development Authority. ---- Case No.796/55/60 ---- Master Plan of Islamabad DECISION Cabinet approved the master plan and master programme of Islamabad. ---- 13. The bare reading of the minutes shows that the Cabinet…
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