2024 C L C 1299
[Islamabad]
Before Aamer Farooq, CJ
MAEMONA AZHAR and others----Petitioners
Versus
CAPITAL DEVELOPMENT AUTHORITY through Chairman and others----Respondents
Writ Petition No.3272 of 2016, decided on 17th May, 2024.
(a) Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020---
----Regln. 2.17---Ban on non-confirming use---Residential plot, use of---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, does not fulfill criteria for residential use---Use of "Residential Building" as hostels or lodging houses or guest houses has been clearly and specifically excluded.
(b) Capital Development Authority Ordinance (XXIII of 1960)---
----S.49C---Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020, Regln. 2.17---Constitution of Pakistan, Arts. 24 & 199---Use of building---Non-confirming use of building---Notice issued by Capital Development Authority challenged by way of writ petition---Petitioners were using their residential buildings as hostels, lodges or guest houses---Respondent / Capital Development Authority after issuing show cause notices initiated proceedings against petitioners by imposing fines and sealing of their properties---Validity---Powers conferred upon respondent / Authority by legislature in Capital Development Authority Ordinance, 1960, were justified by the purpose for which those had been conferred---There was no question of competence of Capital Development Authority or of vires of Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020, where the Authority had exercised its powers in accordance with law and had only done so in furtherance of its mandate as the prescribed regulator---Notices issued in compliance with the procedure could not be challenged in constitutional jurisdiction as there was no adverse action taken nor order was issued whereby questions of vires and infringement of rights could arise---Issuance of show cause notice was merely a procedural requirement to provide time and an opportunity of being heard---Petitioners should have responded to notices of non-conforming use and should have stated their case before the Authority instead of skipping the prescribed procedure and directly invoking constitutional jurisdiction of High Court---Notices were issued in compliance with prescribed procedure and were intra vires and thus could not be challenged through constitutional petition---Provisions of Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020, were intra vires the Constitution and did not infringe fundamental rights---Authority had followed prescribed procedure in letter and spirit, therefore, action of sealing premises could not be challenged on grounds of vires---High Court declined to interfere in the matter as the Authority was well within its powers while determining certain use of a premises to be non-conforming under Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020---Constitutional petition was dismissed, in circumstances.
Col. (R.) Javed Agha and 31 others v. Arshad Mahmud and 4 others 2017 MLD 627; Mrs. Shamshad Butt v. Deputy Commissioner CDA, Islamabad and 3 others 2023 CLC 304 and Lahore Development Authority through D.V. and others v. Imrana Tiwana and others 2015 SCMR 1739 rel.
Ms. Natalya Kamal, Dr. G.M. Chaudhry, Raja Muhammad Shafait Abbasi, Awais Haider Malik, Mir Afzal Malik, Zohaib Hassan Gondal, Syed Kazim Raza Naqvi, Safraz Hussain, Rashid Hafeez, Shafiq-ur-Rehman Dab, Malik Huzaifa, Zia ul Haq, Khurram Ibrahim Baig for Petitioners (in their respective writ petitions).
Shaharyar Tariq, Ch. Haseeb Muhammad (L.A.), CDA, Muhammad Taimoor Khan, Mushtaq Ahmed Awan, Muhammad Akram Shaheen, Syed Ghulam Mustafa, G. Shabbir Akbar, Jam Mati Ullah Bobra, Uzma Aslam Mughal, Zafar Hussain Ahmed, Khurram Mehmood Qureshi, Faisal Bin Khurshid, Ch. Muhammad Asif Khan, Ch. Aziz ur Rehman Zia, Surriya Marriam Khaleeq, Amir Latif Gill, Wasim Abid, Husnain Haider Thaheem, Ms. Mahnoor, Sajida Khanum, Babar Saeed Butt, Sajid Mehmood Abbasi, Naveed Akhtar Joiya, Kalsoom Rafique, Ms. Hadiya Tayyaba, Syed Masood Hussain, Muhammad Anwar Dar, Samar Anwar Dar, Mian Haseeb Ali Bhatti, Usman Ahmad Ranjha, M. Naeem Siddique Bhatti, Muhammad Akhtar Awan, Ms. Mehwish Riffat and Faisal Nawaz for Respondents.
Nisar Ali Shah, D.D. (BCS), CDA.
Assisted by: Ms. Maheen Zeeshan (Law Clerk).
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