IQBAL HAMEED-UR-RAHMAN, C.J.---Through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made the following prayers:--
(i) A declaration to the effect that the cognizance of any alleged offence under the CDA Ordinance, 1960 or Islamabad Residential Sectors Zoning (Building Control) Regulations, 1995, 2003, 2005 can only be tried by a criminal court and respondent No,1 is not a criminal court constituted or governed under section 6 of the Cr.P.C., therefore, the trial of the petitioner and imposition of penalty thereof vide order is in violation of the law and is liable to be set aside and the proceedings are to be quashed.
(ii) Further declaration to the effect that the Deputy Commissioner, CDA is an employee of CDA and was appointed only for the purposes of acquisition proceedings and is not a court under section 4 of the Cr. P. C. And cannot pass any sentence or impose any penalty thereof or to pass judicial order. Further declaration that respondent No,1 is not a Magistrate appointed under the Cr. P. C. And does not have any judicial power to pass any sentence under the CDA Ordinance, 1960.
Furthermore, respondent No,1 is receiving salary from the CDA and other facilities from the CDA, therefore, any employee of the CDA cannot adjudicate upon any matter under the CDA Ordinance or Regulations made thereof. Further, respondent No,1 is not a court subordinate to High Court and its appointment as a CDA Deputy Commissioner or Magistrate is in violation of the Constitutional provisions relating to separate the judiciary from the Executive, hence, appointment of respondent No,1 and delegation of the judicial power thereof is in contravention of the constitutional provisions.
(iii) A declaration to the effect that section 49-C of the CDA Act, 1966 is ultra vires of the CDA Ordinance, 1960 and Constitution. Further that sections 15, 46-B and 51 are tainted and have no application qua the Islamabad Sector Zoning (Building Control) Regulations, 1993,' 2003 and 2005.
(iv) A decree for declaration to the effect that the Building Regulations, 1993, 2003 and 2005 cannot cover the purposes of the CDA Ordinance, 1960 and further the said regulation has not been approved by the Parliament nor made by the Federal Government, hence, have no legislative significance.
(v) A decree for declaration to the effect that the Building Control Regulations are ultra vires and suffer from excessive delegations, unreasonableness and are violative of the law.
(vi) A declaration to the effect that CDA being the public body cannot adopt pick and choose policy. There are lot of offices in the residential areas, the court of respondent No,1 is itself established in a community center which is itself non-conforming use of building and is a violation of Islamabad Residential Sectors, Zoning (Building Control) Regulations, 2005. The CDA has deprived the community of that area by using the said building as a court of Deputy Commissioner, Islamabad. All the courts in Islamabad are established in commercial area which is non-conforming use under the Zonal Regulations.
(vii) A declaration to the effect that creation of subordinate legislation through regulations of 1993, 2003, 2005 and all the decisions thereof, are unconstitutional and suffer from excessive delegation of powers and have to be struck down.
(viii) A declaration to the effect that the subordinate legislation, regulations once relaxed in a particular case, then it shall be considered that the same are not applicable by the authority.
(ix) A declaration to the effect that the impugned order dated 23-5-2011, imposition of fine, proposed penalty of cancellation of the demised premises is liable to be set aside, being in violation of the law.
2. Precisely, the facts necessary for the adjudication of the instant writ petition are that the petitioner is tenant/occupant of House No,24, Street No, 38, Sector F-6/1, Islamabad. Respondent No, 1/Deputy Commissioner, CDA had issued a notice to the owner of premises, regarding non- conforming use of the premises and directed him to put the premises in conforming use.
Thereafter, respondent No,1 vide order dated 23-5-2011 has imposed penalty of Rs,5,00,000 upon the owner of the premises with a further direction that in case the owner of the premises fails to make the payment of fine Rs,500,000 within 15 days, he will be liable to pay fine of Rs,5,000 per day, recovery of which will be made under Land Revenue Act, 1967, hence the instant petition.
3. Learned counsel for the petitioner argued that respondent No,1/Deputy Commissioner, CDA cannot pass any sentence or impose any penalty thereof or pass judicial order; that respondent No,1/Deputy Commissioner, CDA is not a criminal court constituted or governed under section 6 of the Code of Criminal Procedure, 1898, therefore, action of imposition of penalty by respondent No,1 is in sheer violation of the law and the proceedings undertaken by respondent No,1 are liable to be set aside.
4. I have heard the learned counsel for the petitioner and perused the record appended with the instant petition.
5. Petitioner, through the instant petition has alleged that respondent No,1/Deputy Commissioner, CDA has no authority to impose penalty due to non-conforming use of the premises hence, the impugned order dated 23-5-2011 is liable to be set aside. Section 36-A(2) of the Capital Development Authority Ordinance, 1960 reads as under:-- "36A. Deputy Commissioner and Commissioner to have powers of Civil Court etc.
(2) 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, and 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) Regulations- 2005, empowers the Deputy Commissioner to impose penalty on non-conforming use of a residential A building. Clause 2.17.3 of the Islamabad Residential Sectors, Zoning (Building Control)
Regulations-2005 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 the 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 nonconforming 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.
2.17.4. The penalty mentioned above in this regard, shall be imposed by the Deputy Commissioner only."
6. Petitioner, in the instant petition, has not denied the non- conforming use of the premises, hence, respondent No,1 had 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.
7. In view of the above perspective, the instant writ petition has no merits and the same is hereby dismissed in limine.