' SHAUKAT AZIZ SIDDIQUI, J. --- Through this Single Judgment, Writ petitions detailed in the table given below are being disposed of together, having same subject-matter i.e. Regarding use of the residential accommodations for commercial activities commonly known as Non-conforming use in Islamabad. Writ Petitions No. With title, nature of usage & business conducted by the petitioners is given as under:- {{TABLE}} Sr. No. --'TITLE WRIT PETITION NUMBER WITH OF THE CASE ' NATURE OF USAGE & DETAIL OF BUSINESS W.P. No. 1337 of 2001 Col. (R) Javed Agha etc. Vs. Arshad Mehmud, etc. Guest Houses W.P. No. 2209 of 2008 T.V 1 Channel {{TABLE}} Khawar Manzoor Atta etc. Vs. Saila() Hussain Shah and others W.P. No. 2175 of 2009 Dr. Manzoor Hussain Chaudhry Vs. Mohammad Najeeb Aslam & others Guest House W.P. No. 4032 of 2010 Muhammad Yousaf Vs. Capital Development Authority etc. Guest House 4A W.P. No. 1790 of 2011, Mian Naeem Afzal Vs. Ajmal Bukhari, Deputy Commissioner, CDA Guest House 5, W.P. No. 1753 of 2012, Cristina Afridi Vs. Special Magistrate, CDA etc. Restaurant W.P. No. 1754 of 2012, Muhammad Naeem Asmat Vs. Special Magistrate, CDA etc. Restaurant W.P. No. 1755 of 2012, Attique Ullah Khan Vs. Special Magistrate, CDA etc. Restaurant & Catering Services W.P. No. 1756 of 2012, Mobeen Nisar, etc. Vs. Special Magistrate, CDA etc. Club/Restaurant W.F. No. 1757 of 2012, M/s. Hang Chang Enterprisers, Vs. Special Magistrate, CDA etc. Restaurant W.P. No. 1799 of 2012, Raja Fida Hussain Vs. Special Magistrate, CDA etc. Restaurant/K.C. Grill W.P. No. 1908 of 2012, Baigum Nussrat Akhtar etc. Vs. Special Magistrate, CDA etc. Restaurant W.P. No. 2038 of 2012, Mrs. Samina Malik Lakhani Vs. Special Magistrate, CDA etc. Restaurant & Boutique W.P. No. 2744 of 2012, M/s. Kuch Khaas Vs. Special Magistrate, CDA etc. Association/centre for Arts, Culture & dialogue etc. W.P. No. 2098 of 2013, Rizwan Ullah etc. Vs. Capital Development Authority, etc. Guest Houses W.P. No. 3249 of 2013, Syed Basir Ali Shah Vs. Capital Development Authority, etc. Student Hostel W.P. No. 3250 of 2013, Muhammad Munir Vs. Capital Development Authority, etc. Student Hostel W.P. No. 4360 of 2013, Sikandar Ali Vs. Capital Development Authority, etc. Guest House W.P. No. 4507 of 2013, Tanveer Ahmed Vs. Boys Hostel {{TABLE}} Capital Development Authority, etc. W.P. No. 313 of 2014, Tanveer Akhtar Vs. Special Magistrate CDA, etc. Restaurant W.P. No. 1203 of 2014, Sameer Randhawa Vs. Special Magistrate CDA, etc. Restaurant W.P. No. 2025 of 2014 Muhammad Shahid Vs. Deputy Commissioner, CDA, etc. Office for Architectural work W.P. No. 2165 of 2014, ALAYZ School Vs. Deputy Commissioner, CDA, etc. School W.P. No. 2239 of 2014, Attique Ullah Khan Khattak, Vs. Special Magistrate CDA, etc. Restaurant W.P. No. 4056 of 2014, K.C. Grill & others Vs. Federation of Pakistan, etc. Restaurants, Saloons, shopping centres, Cafe, Gym, etc. {{TABLE}} ' The petitioners have prayed for the issuance of similar nature of writs in their separate writ petitions, so the prayer made in the writ petition No. 1337 of 2001 is being reproduced as under:--- ' A. A declaration that petitioners have a constitutional right to engage in any lawful trade or profession and that business of running guest houses in residential buildings where short term residential facilities are provided is a lawful business which cannot be stopped by the CDA and the action of the CDA of forcible closure of the guest houses is violative of Articles 9, 12, 14 and 18 of the constitution. B. A declaration that the summons issued by Respondent No. 1 under Section 68 of Cr.P.C. To the petitioners and proceedings taken by him pursuant to the same are without lawful authority and of no legal effect; C. A declaration that use of the residential premises for providing short terms residential facilities, is neither violative of any provision of the CDA Ordinance, 1960 nor it is a criminal offence and the action of the Respondents to treat it as criminal offence or to lodge criminal prosecution of the petitioner is illegal, mala fide, abuse of the official authority, void and of no legal consequence. D. A declaration that residential buildings are being used for non residential purposes by scores of other category of persons, and only petitioners are being discriminated and forced to close their business of Guest Houses, which action of the respondents is violative of Article 25 of the Constitution, is mala fide in law and facts and is liable to be declared a nullity in the eye of law. E. A declaration that respondents No. 1 is not "Magistrate" appointed under the Cr.PC and does not have any judicial powers, hence he cannot try the petitioner for any criminal offence and in any case the allegation against the petitioner for violation of any Regulation does not constitute a criminal offence.
' F. A direction restraining the respondent No. 1 for issuing any notice/ summons to the petitioner in respect of the running of their business of Guest Houses on ,the ground/allegation that the same constitutes a "non-conforming use" or that activity is violative of the Building Control Regulations, 1993 and from entertaining any complaint of CDA official in this behalf.
' A declaration that cognizance of any offence under the CDA Ordinance, 1960, can only be taken by a Court and that Respondent No. 1 is not a Criminal Court constituted or governed under Section 6, Cr.P.C.
H. A declaration that Respondent No. 1 is not a day appointed member of "Bench of Magistrate" for Islamabad Capital Territory not vested with the powers of a Magistrate of any class by the "Provincial Government" for purposes of "Islamabad Capital Territory".
I. A declaration that Respondent No. 1 who is receiving salary and other facilities from the CDA is not a Court subordinate to the High Court and that his appointment as a CDA Magistrate is violative of the Constitutional provisions relating to separation of judiciary from the executive. J. A declaration that the proceedings before Respondent No. 1 being violative of injunctive orders of the Senior Civil Judge, Islamabad are otherwise also without lawful authority and of no legal effect. K. A declaration that Respondent No. 2 is not a Deputy Commissioner of the District. Also, he has not vested the powers of District management and is not a Court constituted under any law and notice dated 10.04.2001 issued by Respondent No. 2 is absolutely without lawful authority, an abuse of the nomenclature of "Deputy commissioner" which is of no legal effect or consequence. L. A direction to Respondent No. 2 to refrain from passing orders of similar nature, to any of the other petitioner. M. A declaration that Section 49-C of the CDA (Amendment) Act, 1966 ins ultra vires of the CDA Ordinance, 1960, the constitution and a declaration under Section 15, 46B & 51 are simultaneously tined and can have no application qua Building Regulations, 1993 made by capital Development Authority itself. N. A declaration that the Building Regulations 1993 have not been made "to carry out the purpose of the CDA Ordinance and the said Regulations have not been approved by the parliament nor made by the central Government hence the same have no legislative significance.
0. A declaration that so-called "non-confirming use" is not an offence under the Ordinance or the Rules and cannot be treated as a criminal offence in exercise of general powers under the Ordinance. The notices issued by the Respondent No. 3 are without lawful authority and of no legal effect. P. A declaration that Regulation Nos.
2.15, 2.20, 2.21, 2.25, 2.38, 2.39, 2.44, 5.01, 5.02 and 5.03 of the Building Control Regulation, 1993, are ultra-vires of the CDA Ordinance, 1960, suffer from excessive delegation, are violative of the fundamental rights of the petitioners, are unreasonable and irrational and/or use of residential buildings as Guest Houses does not constitute a nonconforming use. Q. A direction to CDA to act in accordance with law, justice, fairness and honesty to regulate the business of the petitioners under a uniform scheme without destroying their livelihood. R. A direction to Respondent No. 2 through its chairman to refrain from initiating proceedings of any sort against the petitioners for alleged violation of Building Control Regulation, 1993, prohibiting business of Guest Houses as 'nonconforming use' of residential buildings. S. A direction to WAPDA and SSP Islamabad to refrain from acting upon any direction from CDA qua the petitioners based on 'non-confirming use or commercial activity' and refrain from disconnecting electric connections to the guest houses at the behest of CDA or to forcibly close the guest houses. T. Appropriate orders enforcing the fundamental rights (Articles 9, 14 and 18) of the petitioners to run the Guest houses in the residential buildings without interference from CDA and its officials on the basis or grounds that the same constitutes "non-conforming use" or a commercial activity and from disconnecting water supply to the guest houses on the above basis or ground. U. A declaration that the action of CDA qua the petitioners business activity of Guest Houses is per se discriminatory and appropriate orders enforcing fundamental rights guaranteed by Article 25 of the Constitution.
V. Any other relief, writ, or order or direction deemed just, appropriate or necessary by the honourable Court may be granted, issued or passed.
2. Learned Counsel for Petitioners in Writ Petition No. 1337/2001, Mr. S. Naeem Bukhari, ASC, argued that Guest houses in Residential premises exist not only all over Pakistan but around the world. That CDA Ordinance, 1960 defines a building but not a residential house and by taking in guest, the nature of a residential plot does not change as there is no difference between a residence for rent for a month or for a week or a night. The bar is created by CDA Regulations under which the authority can regulate an activity which per se is not illegal but cannot prohibit. The Section 46 read with 49-C order ibid makes it an offence to contravene a Regulation, suffer from excessive delegation of powers. The Regulations are unreasonable and irrational apart from exceeding the parameters of the Ordinance; therefore, direction or challan or threat to close down the guest houses is in violation of Articles 9, 14, 18, 24, 38(b) of the constiti on of Islamic Republic of Pakistan. It is lastly contended that house magistrate is being paid salary by CDA but exercise judicial powers, which violates the doctrine of separation of powers.
3. Learned Counsel for petitioners, in other connected Writ Petitions argued that it is the domain of the Federal Government to notify Rules viz. Subject-matter of land required to be used with respect to the master plan; therefore, in absence of such rules, the CDA cannot exercise its power under Section 51 of the Ordinance to frame Regulation which pertain to the specific issue of land use. The impugned Zoning Regulations and ILD Regulations on account of the subject-matter of the impugned regulations are without authority and issued in excess of powers vested in the CDA.
Hence, they are illegal and of no legal effect. The impugned Regulation 2.1.5 is in conflict with the apparent unexceptional and prohibitory provisions of the earlier stated regulations, allows for an exemption and vests in the CDA the unfettered discretion to change the nature of land use on request of allottees provided that the layout and functional plan permits such changes. Therefore, the declared 'land use' at the time of allotment by CDA's own formulation is not written on stone and is capable of being altered when necessary. By virtue of CDA Ordinance, the CDA has been vested with a certain discretion, which it may use in discharge of its statutory functions. However, such discretion as per the judgments of the Superior Courts has to be reasonable and within the four corners of the law. That the Regulation 4.1.23 of the Zoning Regulations vests in CDA power to exempt any person, form any of these regulations as no criteria or parameters or circumstances are defined or prescribed through which the discretion can be regulated. Resultantly, the same falls under the domain of unfettered discretion and is liable to be declared as unlawful and illegal.
Similarly, in Regulation 2.1.7 the Authority has itself retained the power to exempt or permit resident professionals from using the residential premises for home occupation. Learned counsel further contended that such unfettered discretion can be nothing but a patent violation of the Constitutional guarantees as enshrined under Articles 9, 18 and 25 of the constitution and a gateway to corruption which has destroyed the fabric of our society.
4. On the other hand, learned counsel for respondents/CDA has contended that CDA is a development authority which is focused towards taking care of the general public of the Capital and important community interests. Chapter 2 of the CDA ordinance provides the duties and powers of CDA. Section 11 provides that "the authority shall prepare a master plan and a phased master-programme for the development for the rest of the specified Areas and all such plans and programmes shall be submitted to the Federal Government for approval". This Section is followed by Section 12 which provided that the Authority may,