The petitioner is a school functioning under the name and style of Seeds High School and is housed in property Bearing No, 2, Street No, 26, F-6/2, Islamabad. According to the petitioner, the said school was established in the year 1997 and was operating in a smaller house in Islamabad. In April, 2003, however, the school was shifted to its present location which is situated at a Double Carriage Road and which is located in Sector F-6/2, Islamabad.
2. The petitioner is aggrieved of the act of the Capital Development Authority (CDA), which has been manifested through a notice published in daily "News" in its issue of August 14, 2003 whereby the owner/occupier/user or any other person in control of a building which is being used in contravention of the provisions of the CDA Ordinance or of any rule/regulations or order made thereunder to desist from putting the building to a non-conformist use and threatened to take coercive measures to stop such alleged contravention. The petitioner stresses that the threat extended by the CDA to remove, demolish or desist the petitioner from running the school is illegal and without any lawful authority on the grounds that there is no provision in the CDA Ordinance, 1960 wherein there is any prohibition of running a school in a residential area; that the Islamabad Residential Sectors Zone (Building Control) Regulations, 1993 particularly Regulation 5 thereof is inconsistent with and ultra-wires of the CDA Ordinance, 1960; that in any event Regulation 5 mentioned above is in excess of the power given to the CDA to make regulations under Section 51 of the Ordinance.
The impugned act of the CDA has also been challenged upon the touchstone of various fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. It is urged that firstly the proposed prohibition violates Articles 18 of the Constitution which guaranteed every citizen of Pakistan the right to enter upon a lawful profession or occupation and to conduct a lawful trade or business. The impugned act of the CDA does not amount to a legal regulation of the said trade or business. It is next submitted that as a matter of fact, there is a large number of schools functioning in the residential sectors of the Islamabad Capital Territory and that the petitioner has been discriminated in violation of Article 25 of the Constitution which provides that all citizens are equal before law and are entitled to equal protection of law. Apart from educational Institutions, it is urged there are other establishments which can be said to be violating the Zoning Regulations of the CDA but the CDA is following the policy of pick and choose and is guilty of not following a uniform and consistent policy.
3. It is further submitted that the embargo upon educational Institutions even in the name of the alleged violation of the Zoning Regulations are against the principles of policy as envisaged in the Constitution of 1973 wherein the state has undertaken the responsibility of providing education and eradicating illiteracy.
4. Conversely, the learned counsel for the CDA/Respondent No, 2 controverted the claim of the petitioner that the school was established in the year 1997 or that it was working in a different smaller house in Islamabad. It is contended that it was only in April, 2003 that the petitioner-school was established for the first time at its present location in Street No, 26, F-6/2, Islamabad which is purely a residential area. It is further contended that according to the minutes dated 28.5.2003 of the meeting held under the chairmanship of the Chairman, CDA regarding issues relating to non- conforming use of residential building, it was decided that no new school shall be allowed to be opened in residential sectors and in order to accommodate only those schools which were functioning prior to December, 1999 that it was decided that such schools which were located in internal streets may be allowed to be re-located to other houses situated along Dual Carriage way which has satisfactory accommodation and subject to obtaining of NOC from the owner and the neighbours of the locality. Even this arrangement was purely temporary in nature.
The learned counsel for the CDA has strenuously contended that the petitioner school was never operative prior to April, 2003 in any Sector. The petitioner has not specified any house or building wherein the petitioner might be functioning prior to April, 2003. According to him, no new school is allowed to be established in a residential sector. A survey of schools operating prior to 1999 had been carried out and obviously the petitioner school did not figure in any such list.
5. It is further contended that the private schools in Islamabad are inanaged.by the Private Schools Association, Islamabad. A delegation of this Association agreed to the proposal of (a) not opening any new school in residential Sector (b) to shift the schools established prior to December, 1999 as per criteria laid down by the CDA. It has been further pointed out that the notice impugned by the petitioner was issued to as many as 21 private schools including the petitioner. The elimination of the non-conforming use is to take place progressively in stages. In the case of the petitioner, notice was issued by the Deputy Commissioner, CDA. Amongst others, the representatives of the petitioner also appeared before the said forum. Vide order dated 16.4.2003, the functioning of the petitioner-school was found to be illegal action to prevent the non-conforming use was directed.
6. As 'regards the violation of fundamental rights, it is submitted that the freedom of trade and profession is subject to its regulation under the law. Regarding discrimination, it is submitted that a perpetrator of an illegal act cannot claim protection on the ground that similar action has not been taken against other violators.
7. Mr. Munawar Akhtar, Advocate has appeared on behalf of as many as 38 persons who are owners/occupiers of respective residential buildings of the Sectors wherein the petitioner-school is located. He has also supported the submissions made by the learned counsel for the CDA/Respondent No,
2. He has also placed reliance upon the cases of Ardeshir Cowasjee and 9 others vs. Muhammad Naqi Nawab and 5 others (PLD 1993 Karachi 631). Mrs. Naz Shaukat Khan and 3 others vs. Mrs. Yasmin R. Minhas and another (1992 CLC 2540), Arif and another vs. Jaffar Public School through Principal/Administrator and 8 others (2002 MLD 1410) and Bashiran and others vs. Divisional Superintendent, Pakistan, Railways, Zarghoon Road, Quetta and others (2001 CLC 1229) to contend that even if the concerned authorities have not taken action against some similarly placed Schools this shall give no vested right to another school to operate in a residential area; if it is prohibited by law or rules. He further submitted that classification of pre 1999 and post 1999 schools was reasonable and had ample rationale behind it.
8. The learned counsel for the parties agree that as the entire matter is to be heard at length and in detail, the writ petition may be heard as a regularly admitted case.
9. Arguments have been heard and record perused.
10. The main plank of argument of the petitioner is that this was a school which was initially started in smaller premises in the year 1997 in Islamabad and that it was in April, 2003 that the school was shifted to the larger premises presently in possession of the petitioner. Initially, as is reflected from the order passed by this Court on 21.8.2003, the contention of the petitioner was that the petitioner-School, having been started prior to 1999 and latter shifted to its present location was protected under the policy of the CDA.
11. In view of this position taken by the petitioner, it is idle for the learned counsel for the petitioner to challenge the said policy of relaxation of the CDA upon the grounds now urged. It is also noticed that the petitioner has not made any attempt to disclose the identity of the premises wherein the petitioner-school was functioning prior to December, 1999. This is so despite the clear denial of this position by the CDA. It can thus, be safely concluded that in the absence of any material on the record, the claim of the petitioner that the school was already functioning before December, 1999 is not correct.
12. No case can be built by the petitioner on the basis of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. Article 18 is reproduced is as under:-- Art. 18. Freedom of trade, business or profession.-- "Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: 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, of any trade, business, industry or service, to the exclusion, complete or partial of other persons."
(d) 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 whereafter such trade or business becomes unlawful.
13. The claim of the petitioner that the act of CDA amounts to discrimination and is in violation of Articles 4 and 25 of the Constitution is also devoid of force. Article 4 guarantees every citizen the right to enjoy protection of law and to be treated in accordance with law. According to Article 4(2)
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law.
The law in this context does not refer to Statute Law only. According to Salmond, the body of principles recognized and applied by the State in the administration of justice" would equally be recognized as law as contemplated by this Article. The Islamabad Capital Territory Zoning Regulations have the intent and force of law as indeed is possessed by the CDA lay out plans and instruments such as the CDA Master Plan under the CDA Ordinance. The submission of the learned counsel for the petitioner that the Zoning Regulations are ultra vires of the CDA Ordinance has not overly impressed this Court.
14.The submission made by the learned counsel for the petitioner on the basis of Article 25 of the Constitution also does not advance the case of the petitioner. Mere differentiation and in-equality of treatment does not per se amount to discrimination, as it is necessary to show that selection or differentiation is un-reasonable or arbitrary. This Court is supported in its view by the dicta rendered in Ardeshir Cowasjee's case (supra) and the following extract from the said judgment shall aptly described the present situation:-- "Finally, Mr. Farogh Nasim submitted that now that there are numerous schools running in the residential areas of Karachi and that such state of affairs has become a "fact of life" which must be accepted. The short answer to that argument is that not only two wrongs, but even numerous wrongs plus one, cannot be make a right."
14.From the argument addressed on behalf of the respondents, it appears that the CDA is serious in its efforts to curb/eliminate nonconformist use of the particular sectors and in this it is earnestly acting to attain the objective. That no action has yet been taken against some schools shall give no right to the petitioner to operate in a residential sector if the same is otherwise prohibited.
15.It can also not be ignored that private schools operating in Islamabad have formed a Private schools Association. The CDA had acted in concurrence with this Association in formulating the classification of pre 1999 and post 1999 schools alongwith the embargo that no new schools in residential localities shall be opened. The criteria laid down is lawful and reasonable. Whether the petitioner is a member of the Private Schools Association or not, the petitioner cannot escape the responsibility incurred by the said Association.
16.In view of the fore-going there is no merit in this writ petition which is hereby dismissed.