AAMER FAROOQ, J.---Through this judgment the petitions mentioned in Schedule-A shall be decided as common questions of law and facts are involved. In this behalf the instant petition as well as the petitions mentioned in Schedule-B were decided by this Court vide judgment dated 21.01.2015, however, Civil Petitions for leave to appeal were filed and judgment dated 21.01.2015 passed by this Court was set aside; consequently the matter was remanded. In addition, number of petitions involving same questions of law and facts were filed subsequent to the remand of the case which are mentioned in Schedule-C.
2. The facts, in brief, are that the petitioners in most of the petitions are running guest houses in the residential areas of Islamabad which are controlled and regulated by the respondent i,e, Capital Development Authority (CDA). In the other petitions the petitioners are carrying on activities which are alleged as commercial; in residential areas of Islamabad regulated by the CDA. The respondent authority has served notices in most of the cases for discontinuation of the activities carried by the petitioners or has initiated action by imposition of penalties including fine and even sealing of the premises. The petitioners being aggrieved of the actions of CDA have challenged the provisions of Capital Development Authority Ordinance, 1960 (the Ordinance) as well as Islamabad Land Disposal Regulations, 2005 (ILDR) and Islamabad Residential Sectors Zoning (Building Controlled Regulations), 2005 (IRSZR).
3. Syed Naeem Bukhari, Senior Advocate Supreme Court appeared in the instant petition as well as Writ Petitions Nos.1790/2011, 3769/2015 and 3773/2015 and submitted that taking in gusts does not change residential character of the building. In support of his contention learned counsel submitted that the establishment of a guest house is not a phenomena unique to Islamabad or even Pakistan and contended that guest houses exist all over the world; that the lodging industry in Pakistan is governed and controlled by the Government of Pakistan, however, by taking in guests the residential nature of the building does not change and it remains house and is used by visitors as a temporary dweller. Secondly, it was contended by the learned counsel that in essence renting out a room or rooms for any period is not different from renting out premises for a few months or a year. In this behalf it was contended that in ILDR as well as IRSZR the land use is divided in various categories including residential and commercial and the renting out a room for a day or so is in essence the same as renting out a house or a building for a longer period of time. Thirdly, it was contended that by allowing a guest to stay in residential premises the property in question does not become a Hotel or Motel; that Hotel is defined in section 2(g) of Pakistan Hotels and Restaurants Act, 1976 which requires that there must be minimum of 10 rooms for letting for a hotel and for a restaurant under section 2. Ibid there has to be a public eating place. Therefore, the guest houses are neither hotels or motels but rather are registered under Sarai Act, 1867 and have commercial connections for electricity and gas supplies. It was contended next that there is no law which prohibits keeping of the paying guests in a house, therefore, the impugned actions of the CDA are in violation of Article 4 (2)(b) of the Constitution which provides that no person shall be prevented from doing that which is not prohibited by law. Learned counsel also contended that the very nature of a guest house is that it accommodates guests in house. It was submitted that the regulations framed by. CDA under section 51 of the Ordinance are on the altar of expediency and are mere instructions without any statutory status; that under section 51 of the Ordinance the authority has the power to make regulations which are to be published in the official gazette.
Learned counsel further submitted that under regulation 1.2.92 of IRSZR the concept of non- conforming use was introduced which is alien to the Ordinance; that the regulations are made in exercise of executive authority and are not a statutory instrument but mere instructions. It was also contended that the Regulations cannot be placed at a higher pedestal than Rules or the Ordinance; that Rules are different from Regulations and are statutory in nature. Learned counsel also submitted that under the garb of Regulations CDA cannot prohibit an activity which otherwise is lawful and legal or even regulate the same. In this behalf learned counsel placed reliance on the case reported as PLD 2005 SC 193 to substantiate that reasonable restriction does not mean prohibition or prevention and the validity of prescribed qualification or the prohibition can be examined by the Superior Courts. Reliance was also placed on the cases reported as PLD 2011 SC 44 and 1997 SCMR 641. Learned counsel further contended that the fact that the phrase non- conforming use is not used in the parent Ordinance, therefore, it cannot be used in the Regulations framed by the CDA. Learned counsel also contended that the prohibition contained in the Ordinance and Regulations is in violation of Articles 2-A, 3, 4, 9, 10-A, 18, 24 and 25 of the Constitution. In this behalf reliance was placed on the case reported as PLD 2005 SC 193, PLD 1997 SC 342, PLD 1994 SC 693, PLD 2012 SC 292 and AIR 1986 SC 180. Reliance was also placed on PLD 2012 SC 664 and PLD 2012 SC 292. Learned counsel further contended that there is no law or provision in the Constitution which prohibits any citizen from keeping a paying guest in a residential accommodation, therefore, the actions of respondent authority are not tenable. Reliance was placed on PLD 2004 Lahore 376, PLD 1999 SC 80 and 2012 CLC 958. Learned counsel also contended that sections 46, 49-C, 50 and 51 of the Ordinance are unconstitutional as they- are hit by doctrine of excessive delegation of legislative powers. In support of his contention learned counsel placed reliance on the cases reported as PLD 1993 SC 341, PLD 1994 SC 105, PLD 1996 Lahore 542 and PLD 1989 Karachi 404. It was further contended that executive authority cannot be used to create offences and on this principle the charging sections are rendered ultra vires of the Constitution.
Reliance was placed on PLD 1965 Dhaka 156, PLD 1983 SC 358, PLD 1988 SC 610. Learned counsel further contended that the CDA has failed to develop various sectors and hence is negligent to its statutory obligations while the population of Islamabad continues to grow exponentially.
4. Mr. Ali Raza, Senior Advocate Supreme Court argued in Writ Petition Nos.313/2014, 1799/2012, 1908/2012 (remanded cases) as well as Writ Petitions Nos.3446/2015, 3973/2014 and 4505/2014.
Learned counsel contended that CDA under the Ordinance is obliged to prepare a Master Plan and phased Master Programme for the specified areas which should be approved by the Federal Government. Learned counsel also contended that there is no Master Plan approved by the.
Federal Government vis-a-vis establishment of Capital Territory, therefore, the Regulations framed by the CDA allegedly in pursuance of the Master Plan have no legal sanctity. Reliance was placed on the cases reported as 1998 SCMR 2013 and PLD 1990 Peshawar 192. It was also contended that till to-date the Master Plan has not been produced in the Court. Learned counsel took the Court through various provisions of the Ordinance including sections 11, 12, 13, 14, 15 and 17 to 21 as well as ILDR including Regulations 3, 4, 5 and 6. Learned counsel also highlighted the provisions of IRSZR, 2005, in particular, Regulations 2.1, 2.1.1, 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.1.7, 4.1.23, 2.17.1, 2.17.3 and 2.17.5. Learned counsel contended that the reading of above provisions shows that CDA has certain obligations and duties such as to prepare a Master Plan and a Scheme and in this behalf to respond to the trends in the development. It was also contended that the bare reading of the Building Control Regulations shows that CDA has vested on to itself discretion to change the land-use as principle Regulation 2.1.5, however, the same cannot be read in isolation and has to be read in harmony with other provisions, therefore, change of the land-use as provided in Regulation 2.1.5 is ultra vires the Ordinance. Reliance was placed on the cases reported as PLD 1972 SC 279, PLD 2010 SC 759, PLD.
2006 SC 394, PLD 2011 SC 619 and 2005 SCMR 186. It was also contended that vide Regulation 2.1.7 CDA has exempted a class of professionals who used residential premises for the purpose of home occupation. In this behalf it was submitted that the list of professionals is not exhaustive and the CDA retains the discretion to allow any entity or individual the exemption under the garb of this Regulation, therefore, Regulations are discriminatory and also place excessive discretion on the authority. It was contended next that under the Regulation 4.1.23 the CDA has vested on to itself unfettered and unbridled powers which is excessive delegation and vested unfettered discretion in CDA, therefore, the same is liable to be struck down. Reliance was placed on the case reported as 2006 SCMR 705. It was also contended that the Regulations 2.17.3 and 2.17.5 are ultra vires the CDA Ordinance as the same vests discretion in the CDA to impose penalties which leads to discrimination, therefore, are liable to be struck down. It was contended finally that most of the definitions provided in 2005 Regulations are absurd and vague, therefore, need to be struck down.
5. Mr. Akram Sheikh, Senior Advocate Supreme Court in Writ Petition Nos.3537/2015 and 3796/2015 inter alia submitted that the CDA has been grossly negligent in fulfilling its statutory duty to develop the capital city, adhering to the best global practices of town planning. In this behalf learned counsel made a reference to the various cities as to how they have been developed over a period of time. Reference was also made to cases reported as PLD 2011 SC 619 and PLD 1993 Lahore
855. It was further contended that Article 268(6) of the Constitution places an obligation on Courts to construe the CDA Ordinance, 1960 with such adaptation that it conforms to scheme of tracheotomy of powers and inviolability of fundamental rights as enshrined in 1973 Constitution.
Reference was made to the case reported as 1959 SCMR .1477 and Director of Public Prosecutions v.
Mollison (2003 UKPC 6); that the Ordinance violates the Constitutional scheme of tracheotomy of powers by conferring judicial functions on an executive authority making them a judge in their own cause; that imposition of penalty and fine by CDA violates Article 10-A 'of the Constitution.
Reference was made to Reyes v. R (Belize) (2002) UKPC 11 and PLD 2005 SC 873, PLD 1975 SC 506. It was also contended that CDA does not have the jurisdiction to determine whether non-conforming use has in fact occurred. Reliance was placed on the case reported as PLD 1965 SC 698; that enforcement of civil rights and obligations must be preceded by judicial determination through due process and fair trial by an impartial tribunal. Reliance was placed on the case reported as PLD 2012 SC 553, PLD 2012 SC 923 and 2015 PLC (CS) 537. It was also contended that the Ordinance violates the Constitutional scheme of tracheotomy of powers by delegating legislative functions to an executive authority thereby giving it unfettered power of legislating offences, penalties and restrictions. Reliance was placed on the case reported as 2005 SCMR 186, PLD 2002 Lahore 521 and PLD 2016 Lahore 35; that enacting law restricting the fundamental rights of a person is legislative function of the Parliament under the Constitutional scheme of tracheotomy of powers and cannot be delegated to another organ such as an administrative authority under executive control.
Reliance was placed on the cases reported as 2007 YLR 2183, 1999 YLR 42 and 1995 MLD 1728; that arbitrary or unfettered powers are outside the scope of reasonable restriction, therefore, any classification into zones which does not flow from the referred rational is arbitrary and hence ultra vires. Reliance was placed on the cases reported as PLD 2007 SC 642 and 2001 PLC (C.S.) 933. It was also submitted that restriction imposed by the CDA on the fundamental rights to the property under Articles 23 and 24 of the Constitution fail proportional its test of reasonable restriction as laid down by the Superior Courts. Reliance was placed on the case reported as PLD 2013 Lahore 693 and PLD 1958 SC 41; that the CDA did not consider the true essence and meaning of the term 'Regulation' while making the impugned Regulations, therefore, the same is different from restriction. Reliance was placed on the case reported as PLD 2005 SC 193. It was also contended next that the Rules and Regulations made by the Capital Development Authority under the Ordinance are ultra vires the Ordinance. Reliance was placed on the cases reported as PLD 2011 SC 619 and 2005 SCMR 186. Finally, it was contended that the offence of nonconforming use created under Regulation 2.17.3 of IRSZR is vague and arbitrary. Reliance was placed on the cases reported as PLD 2000 SC 1.11 and 2005 SCMR 728.
6. Mr. Jawad Hassan, Advocate Supreme Court appearing in a number of petitions adopted the arguments of learned counsel for the petitioners and contended that the Regulations framed by the CDA are vague and arbitrary and through them no penalty can be imposed. It was also contended that running of guest houses from residential buildings does not amount to commercial activity as the word commerce is not attracted.
7. Barrister Natalya Kamal, adopted the arguments of the learned counsel for the petitioners but added that there is no Master Plan vis-a-vis Islamabad. In this behalf with respect to the concept of Master Plan reference was made to LDA Master Plan Rules, 2014 and reference was also made to Master Plan Delhi, 2021. It was also contended that in Regulations, 1993 the guest houses were not included in commercial sectors, however, in 2005 Regulations the same is regarded as commercial activity, hence, no plot as such has been earmarked in the said activity or has been sold/auctioned as such.
8. Learned counsel for the respondents inter alia submitted that 2005 Regulations do not exceed the primary legislation i,e, the Ordinance. In this behalf regarding the nature and scope of delegated legislation reference was made to the case reported as PLD 1965 Dhaka 156. In this behalf it was contended that the legislature through Ordinance has provided the basic structure/framework, however, the details have been left for the executive to fill in by way of Rules and Regulations. In this behalf reliance was made to sections 2(c) 11, 12, 13 and 49(c) of the Ordinance to show that the basic framework has been provided by the legislature by way of Master Plan for a new city and development of scheme including zoning and imposition of prohibition on use of property in contravention of provisions of the Ordinance as well as Rules and Regulations.
Reliance was made on the case reported as 2005 SCMR 186. In this backdrop it was contended that the executive has been authorized to make Rules and Regulations under sections 50 and 51 of the Ordinance. It was also submitted that it has been argued that Regulations impose fine whereas the Act does not provide so, this does not make the Regulations ultra vires. Reliance was placed on the case reported as 2016 SCMR 69. In light of the referred judgment it was submitted that section 46 provides for imposition of six 'months punishment or fine for violating any provision of the Ordinance, Rules or Regulations and that the penalty imposed under Regulation does not exceed the ,maximum penalty provided under the referred provision. Learned counsels also submitted that in PLD 2011 Islamabad 36 this Court elaborately discussed the Building Regulations, 1993 and 2005 but did not Mike them down. Similarly, reliance was placed on the case reported as PLD 2004 Lahore 305. Learned counsel also submitted that the prohibition to run guest houses from residential building is not in violation of Articles 4, 9, 18 and 25. Reliance was also placed on PLD 2004 Lahore 305. It was also contended that restriction imposed fulfills the criteria as propounded by the Superior Courts in various judgments; that CDA Magistrate exercising the powers under the Ordinance and the Regulations does not violate the tracheotomy of powers, reliance was placed on the case reported as PLD 2016 SC 637. Learned counsel also submitted that in a. Recent judgment the Peshawar High Court in case reported as 2015 PTD 2114 held that the power exercised by Customs Officers were judicial in nature; that running of guest houses from residential building is a commercial activity. Reliance was placed on 2015 CLC 84. It was also contended that the Master Plan duly approved by the Federal Government exists and the notification/decision of the Cabinet- in this regard was also placed on record. Learned Additional Attorney-General adopted the arguments of the learned counsel for the CDA.
9. The basic grievance of the petitioners is that they are being restrained by CDA from running guest houses or other activities which are commercial in nature from houses/buildings constructed in residential areas of Islamabad. In this behalf earlier petitions mentioned in Schedule-B were filed and decided by this Court vide judgment dated 21.01.2015. Against the referred judgment various Civil Petitions for leave to appeal were filed bearing C.Ps. Nos.121, 126, 128,129 and 372 to 373 and 1137 of 2015. The referred petitions came up for hearing before the august Apex Court on 14.10.2015 and after hearing the learned counsel for the parties the Hon'ble Supreme Court of Pakistan was pleased to pass the following order:-- "We deliberated over the arguments address at the bar but we noticed is that many of these provisions have not been read altogether nor have they been considered in their proper perspective. It would not be possible for us to hear these cases as a Court of first instance and give verdict without having the benefit of a verdict of the High Court which under the law is bound to give its verdict one way or the other vis-a-vis the application, interpretation and effect of the provisions relevant in this behalf. In this view of the matter, all the learned ASCs for the parties agree to the remand of all these petitions to the High Court for decision afresh in accordance with law."
' Therefore, in light of the order of Hon'ble Supreme Court of Pakistan the matter was remanded to this Court for decision afresh regarding the provisions of the Ordinance, their application, interpretation and effect.
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.
' 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 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."
11. The various provisions of the Ordinance relevant for the purposes of the instant petitions are sections 11, 12, 13, 1445,46, 49(c), 50 and 51. For the sake of brevity and convenience the referred provisions are reproduced below and are as follows:- "11 . Master Plan And Master Programme. ---The Authority shall prepare a 'master plan and a phased master programme for the development of the Capital Site, and may prepare a similar plan and programme for the rest of the Specified Areas, and all such plans and programmes shall be submitted to the [Federal Government] for approval.
12. Preparation Of Schemes By Local Bodies Or agencies.---(1) The Authority may, pursuant to the master plan and the master programme, call upon and local body or agency operating in the Specified Areas to prepare, in consultation with the Authority, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency and thereupon the local body or agency shall be responsible for the preparation of the scheme or schemes within a reasonable time.
(2) Such schemes, may relate to:
(a) Land use, zoning and land reservation,
(b) Public buildings.
(c) Industry.
(d) Transportation and communications, highway, roads, streets, railways, aerodromes.
(e) Telecommunication, including wireless, television, radio, telephone.
(f) iodization of water, power and other natural resources.
(g) Community planning housing slum clearance amelioration.
(h) Community facilities including water supply, sewerage, drainage, sewage, disposal, electricity supply, gas supply and other public utilities
(I) preservation of objects or places of historical or scientific interest or natural beauty.
(3) The (Federal Government) by notification in the official Gazette, add to alter or amend the list of subjects given in subsection (2) and any such addition alteration or modification shall take effect as if it had been enacted in this Ordinance.
(4) The expenditure incurred on the preparation of any such schemes as aforesaid shall be borne as agreed to between the Authority and the local body or agency, and in the event of disagreement between them as may be determined by the (Federal Government)
(5) No planning or development scheme shall be prepared by any person or by any local body or agency except with the concurrence of the Authority.
13. Preparation of schemes by Authority.---The Authority may, pursuant to the master-programme, itself prepare, when it considers it desirable to do so in the public interest, schemes for the Specified Areas relating to the matters enumerated in sub section (2) of section 12.
14. MANNER AND FORM ETC. OF SCHEME.
' All schemes under section 12 and section 13 shall be prepared in such manner and form 'as the Capital Government may specify, and shall contain among other things the following information namely:-
(a) description of the scheme and the manner of its execution;
(b) estimate of costs and benefits;
(c) allocation of costs to the various purposes to be served by the scheme.
15. Power of the Authority.---(1) Subject to the other provisions of this Ordinance and the rules, the Authority may take such measures and exercise such powers as may be necessary for the carrying out of the purposes of this Ordinance.
(2) Without prejudice to the generality of powers conferred by subsection (1), the Authority may.
(i) acquire any land in the specified Areas in accordance with the procedure laid down in Chapter IV. ii) undertake any works in the Specified Areas in pursuance of any scheme prepared under Section 13; iii) incur any expenditure. Iv) procure plant, machinery, instruments and materials required for its use, v) enter into and perform all such contracts as it may consider necessary; vi) cause studies, surveys, experiments and technical researches to be made or contribute towards the cost of any such studies, surveys, experiments or technical researches made by any other agency at the request of the Authority, vii) issue interim development orders for areas for which a master plan is under preparation and restrict or prohibit by general or special order any change in the use of land and alteration in buildings, structures and installations; viii) cause removal of any works obstructing the execution of its scheme. ' any local body or agency and such local body or agency shall give the advice and assistance sought by the Authority to the best of its ability, knowledge and judgment, and the additional expenditure, if any, involves in giving such advice or assistance shall be borne by the Authority.
46. Penalty.---Whoever contravenes any provision of this Ordinance or of any rules or regulations made or scheme sanctioned thereunder shall, if no other penalty is provided for such contravention, be punishable with imprisonment which may extend to six months or fine or with both.
49C. Removal of building, etc erected or used in contravention of this Ordinance.---(1) If any building, structure, work or land in erected, constructed or used in contravention of the provisions of this Ordinance or of any rule, regulation or order made hereunder, the Deputy Commissioner, or any person 53 empowered in this behalf by the Authority may by order in writing, require the owner, occupier, user or person control of such building, structure, work or land to remove demolish or to 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,
(2) If an order under subsection (1) in respect of any building, structure, work or and is not complied with within such time as may be 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.
50. Power to make rules. The (Federal Government) may, by notification in the official Gazette, make rules to carry out the purposes of this Ordinance. Provided that no rules shall be made on any of the matters specified in section 38.
51. Power to make regulations: The Authority may make regulations, not inconsistent with the rules, if any, on all matters for which regulations are necessary or expedient; and such regulations shall be published in the official Gazette.
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 appeal1d 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, SECRET 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 DECISION ' Cabinet approved the master plan and master programme of Islamabad.
Authority.
Master Plan of Islamabad
13. The bare reading of the minutes shows that the Cabinet approved the Master Plan and Master- Programme of Islamabad, therefore, the Master Plan and phased Master-Programme duly approved by the Federal Government exists as required under section 11 of the Ordinance. Under sections 12 and 13 of the Ordinance, CDA in pursuance of the Master Plan and phased Master- Programme can develop a scheme or schemes through local bodies or agencies or itself pertaining to the matters provided in subsection (2) of section 12 ibid. Under clause-a of the referred subsection a scheme -may relate to land use, zoning and land reservation. In order to develop the scheme and execute the same, a comprehensive procedure for land acquisition is provided under the Ordinance which for the present purposes is not relevant. Under section 46 of the Ordinance penalty for contravention of the provisions of the Ordinance, Rules or Regulations or scheme sanctioned is provided by way of punishment for a maximum period of six months or fine or both. In this behalf the trial is summary in nature and is to be conducted by a Magistrate and the cognizance of an offence punishable under the Ordinance can only be made on a complaint in writing by the CDA or any officer authorized by the CDA for the said purpose. In case any building, structure work or land is erected, constructed or used in contravention of the provisions of the Ordinance, Rules or Regulations made thereunder is prohibited under section 49(C), of the Ordinance and the Deputy Commission may order inter alia a person to desist from using the land in violation of the prohibition. Finally section 51 of the Ordinance empowers CDA to make Regulations with respect to matters which are necessary or expedient and the same are to be published in the official gazette. Exercising powers under section 51 the CDA from time to time has framed Regulations and the ones relevant for the present purposes are the Islamabad Land Disposal Regulations, 2005 and Islamabad Residential Sectors Zoning (Building Controlled Regulations), 2005. In ILDR plots have been classified into different categories (Regulation 3) viz (i)
Residential plots (ii) Commercial and Business Plots. (iii) Community Buildings and Facilities Plots.
(iv) Administrative and Public Sector Plots.(v) Industrial Plots. (vi) Diplomatic Plots. (vii) Public Parks, Playing Fields, Graveyards and Incidental Open Spaces. (viii) Agro-Farming and Agro-Industry Plots. (ix) Plots in Model Villages and Sub-Urban Centers. Similarly, IRSZR were framed spelling out the various concepts regarding building use and definitions involved with respect thereto. In this behalf under Regulation 2.1.3 no land or building is to be put to a non-conforming use. Under Regulation 2.1.4 the nonconforming use of a building would render the owner and occupant of the building liable to penalty and eviction and even cancellation of the allotment of the plot. Under Regulation 2.1.5 CDA may change the land use provided the same is permissible under the layout plan and the functional plan. Regulation 2.17 restricts non-conforming use by way of imposition of penalty. The most relevant Regulation for the ease of convenience is reproduced below and is as follows:-- "2.17. Ban on non-conforming uses 2.17.1. No land or building shall be put to a non-conforming use.
2.17.2. Any building or structure designed or intended for a use not authorized or Permitted under these Regulations or conditions of allotment, shall either be removed or 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 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 Commission only."
14. The bare examination of the Regulations shows 'that no land or building is to be used for non- conforming and the violation of the same renders the occupant and the owner of the building liable to fine to the tune of Rs,500,000/- and in case of continuous violation 15 days of additional fine to the extent of Rs,5000/- every day and subsequently eviction and or cancellation of the allotment. By virtue of a recent amendment CDA also has the power to seal the premises. Under Regulation 4.1.23 CDA can by a general order or special order exempt any land or building from the operation of any one or all Regulation.
15. As can be discerned from the provisions of the Ordinance that CDA is a regulator i,e, its functions inter alia includes to regulate the affairs of the Capital City. The way it has been exercising its powers or functions is not exemplary and there are lapses on its part in performance of functions.
The Ordinance is a legislative enactment prior to the present Constitution and under Article 268(6) of the Constitution all such enactments are to be interpreted in a way so as to adapt the same according to the provisions of the Constitution. In this behalf various judgments cited by the learned counsel for the petitioners are relevant and there is no cavil with the principles laid down in the same, in particular, the decision of House of Lords in case titled Ghaidan v. Godin-Mendoza
(FC) [2004] UKHL 30. The basic question is that whether the Ordinance violates the Constitutional scheme of trichotomy of powers by conferring essential judicial function on an executive authority by way of determining/adjudication and sentencing in violation of Article 10-A of the Constitution.
Under the Ordinance and Regulations framed by the CDA the Magistrate of CDA as well as Deputy Commissioner has the power to determine whether there is any violation of the provisions of the Ordinance or Rules or Regulations. Reliance was placed by the petitioners in case titled President of Pakistan v. In the matter of Reference No,2 of 2005 by the President of Pakistan (PLD 2005 SC 873) wherein the Hon'ble Supreme Court of Pakistan observed that the executive authority by judicial orders of binding nature violates the fundamental rights of the citizens. Similar observations were also made by the august Apex Court in Mahram Ali case reported as 1998 SCMR 1447. The Hon'ble Division Bench of Peshawar High Court in case titled Messrs Al-Khair Traders through Sole Proprietor v. Collector Customs and 2 others (2015 PTD 2114) while interpreting section 195 of the Customs Act, 1969 observed as follows:-- "Canvassing the provisions of the Act, it becomes very evident that the legislature had envisaged three distinct regimes for regulating and carrying out the essential aims embodied in the Act. The same can generally be categorized as follows:--
(i) Administrative or Executive Authority.
(ii) Quasi-Judicial adjudicating Authority..
(iii) Judicial Authority trying penal provisions.
The issue in hand relates to the first two categories mentioned above. The stark distinction between the said two regimes has been extensively discussed in Khan Trading Company's case (2002 CLC 705) in terms that:- "In the adjudicatory scheme, which has been incorporated in the Customs Act by the Finance Ordinance of 2000, an hierarchy has been established for adjudication of disputes between the Customs department and persons dealing with it such as importers. Such hierarchy is separate and distinct from the Collectorate of Customs exercising the function of administering the Customs Act and effecting recoveries thereunder, on the executive side. The Collectorate on the executive side, entrusted with the collection of revenue has been deliberately and consciously removed from the adjudicator)? Process.
Section 195 of the. Customs Act, which has been relied upon by learned counsel for the respondents to oppose the present petition and to provide justification for the issuance of the impugned show-cause notice, has to be read in the context of the adjudicatory scheme which now forms part of the judicial process under the Customs Act. The revisional power set out in Section 195 also needs to be examined and circumscribed in the light of various statutory provisions including Section 179 of the Customs Act and the Notification No,S.R.O. 448(1)12000 issued thereunder by the CBR. It is clear from the aforesaid Notification read in the context of Section 179 and Section 5 of the Customs Act that adjudication authorities have been created to deal with matters of -contention between the customs department and those having dealing with it such as the petitioner.
The distinction between the two species of Collector which are envisaged by the various provisions of the Customs Act and in particular Section 194-A, Section 179, Section 5 and Section thereof. The aforesaid distinction between the two is now very much and essential feature of the Customs department.
In the light of the segregation of functions between collection and adjudication which now forms an integral part of the Customs Act, the officers of Customs designated as adjudication authorities have to remain conscious of the fact that they are no longer collectors of revenue but are meant to be impartial adjudicators whose decisions are subject only to the appellate jurisdiction of the Appellate Tribunal and of this Court as provided for in the Customs Act.
The power of revision in general terms, which has been provided for in Section 195 of the Customs Act, has to be read in the context of the Customs Act as amended by the Finance Ordinance, 2000.
In this respect, as noted above, the distinction between an adjudicating authority on the one has and a Collector or other Customs functionaries has been well recognized in the legal provisions referred to above and in particular."
This Court is in accord with the general principle laid down in the above cited case that the Administrative/Executive and Adjudicatory Authorities, are not only distinct and independent of each Other but have been assigned separate role in the Act. Surely, like all other authorities, the two authorities presently under review, have to remain within their assigned legal jurisdictions; the Adjudicatory Authority is to decide impartially, the disputes which arise between persons and the Executive Authority, while the latter is carrying on its functions, as the collecting arm of the Revenue; the Executive/ Administrative Authority, on the other hand, apart from passing administrative decisions, relating to matters concerning export, import, preventive or anti-smuggling operations has to also decide, whether the decisions so made by the Adjudicatory Authorities, require any correction for it to be assailed before the appellate forums provided in the Act."
16. Similarly the distinction between the administration acts and quasi-judicial functions was elaborated by the Hon'ble Supreme Court of Pakistan in a recent judgment titled Dr. Zahid Javed v.
Dr. Tahir Riaz Chaudhary and others (PLD 2016 Supreme Court 637) held as follows:-- "Now the next question would be whether the powers conferred under Section 11-A of the Act are administrative powers and/or quasi-judicial powers to be exercised by the Chancellor. The word "Quasi" is defined 'as if', as though, as it were, in a manner, in a certain sense or degree, seeming, seemingly, analogous to and it may mean resemblance. The quasi-judicial power is a duty conferred by words or by implication on an officer to look into facts and to act on them in the exercise of discretion, and it lies in the judgment and discretion of an officer other than a judicial officer. A "quasi-judicial power" is one imposed on an officer or an authority involving the exercise of discretion, judicial in its nature, in connection with, and as incidental to, the administration of matters assigned or entrusted to such officer or authority. A "quasi-judicial act" is usually not one of a judicial tribunal, but of a public authority or officer, which is presumably the product or result of investigation, consideration, and human judgment, based on evidentiary facts of some sort in a matter within the discretionary power of such authority or officer. A quasi-judicial power is not necessarily judicial, but one in the discharge of which there is an element of judgment and discretion; more specifically, a power conferred or imposed on an officer or an authority involving the exercise of discretion, and as incidental to the administration of matters assigned or entrusted to such officer or authority."
17. In light of the recent judgments by the Hon'ble Peshawar High Court as well as august Apex Court it is evident that distinction is drawn between the executive functions and judicial/quasi- judicial powers exercised by the same authority, however, the fact that within the administrative/executive regime judicial powers are being exercised does not violate the trichotomy of powers as enshrined in the Constitution. It was also argued that CDA does not have the authority to determine whether non-conforming use has infact occurred. The petitioner placed reliance on the case titled Muhammad Jamil Asghar v. Improvement Trust (PLD 1965 SC 698). The Magistrate under section 46 of the Ordinance is empowered to impose fine or even order imprisonment. Under section 46 (D) the Magistrate is to try the offence in a summary way as provided in section 260, Cr.P.C. On a complaint to be filed in writing by the CDA. This clearly shows that the Magistrate under rdinance exercises judicial functions independent of CDA who is a complainant in the matter, therefore, acts independent of the authority. The trial is conducted in a summary way is as provided in Criminal Procedure Code, 1898 wherein due regard to the principles of natural justice as well as fair trial is to be given.
18. The Ordinance provides that CDA can make Regulations where it is necessary and expedient and the same is to be published in the official gazette. The powers given under section 51 ibid to CDA is valid and when Regulations are made in compliance with the provisions of the Ordinance they are law. Reliance is placed on the case titled M.D. Tahir Advocate v. Federal Government through Secretary Cabinet Division Islamabad and others (1996 CLC 1987). The petitioners argued that by delegating legislative functions to an executive authority i,e, CDA vast unfettered powers of creating offence and imposing of penalties have been given to the executive which is not sustainable and is in violation of the Constitution. In case titled Haji Ghulam Zamin and another v.
A.B. Khondkar and others (PLD 1965 Dacca 156) it was observed as follows:-- "37. It is also undeniable that legislation must also be adapted to the complex conditions involving a host of details with which the Legislature cannot deal directly. The Legislature, therefore, having formulated the norms of its main legislative policy, must, of necessity, leave the working of details, with which it cannot deal directly, to other agencies, in the proper fulfillment of its legislative duty, that is, to perform its essential law-making function. In this background, the Constitution has never been regarded as denying, to the Legislature the necessary resources of flexibility and feasibility in laying down policies and establishing standards, while leaving it to selected functionaries the making of D incidental and auxiliary provisions, within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without such power of assignment the Legislature would face the anomaly of being called upon to exercise a legislative power, which, under various circumstances, would be but a futility. The Legislature is not allowed to become impotent, but the necessity and validity of such delegated legislation, and the wide range of administrative authority which has been developed thereby, cannot obscure the limitations of authority to delegate.
38. Delegation by the Legislature is permitted within prescribed limits in order to execute the legislative norms an E provisions that have been enacted. Thus a restricted delegation in aid of the proper functioning of legislative power has not been regarded as unconstitutional. There are innumerable decisions to support the aforesaid proposition and before we discuss some of them, we would like to observe that the principles we have discussed above resolve themselves thus:
(1) Legislation being the exclusive function of the Legislature, it cannot abdicate such function.
(2) The Legislature, after having enunciated the essential legislative principles and standards, is, however, entitled to delegate to outside agencies such functions which are essential to an effective exercise of the legislative power with which it has been endowed by the Constitution.
(3) The Legislature, however, cannot efface itself and delegate all its functions to an extraneous agency.
39. The justification for such a delegation is that the Legislature, being the exclusive machinery for legislation, cannot be allowed to be paralysed if and when an ancillary delegation becomes a physical necessity for its proper function. In the United States of America, under the Constitution itself the power is specifically provided, but in the context of our Constitution such a power is implied in the exclusive legislative function with which the Legislature is vested.
40. It is not, however, permissible for a Legislature to substitute in its place any other authority. It cannot ask anybody else to perform its function. There is a positive embargo upon self-effacement and a total abdication of legislative function."
19. The legislature under section 51 authorized CDA to make Regulations where it is necessary and expedient. CDA in exercise of powers framed Regulations from time to time and also framed Regulations mentioned above. As mentioned above, in the referred Regulations plots have been divided into different categories. The referred division or categorization of plots under the ILDR 2005 is in A pursuance of section 12(2)(a) as well as 49(C) of the Ordinance which permits that a scheme or schemes to be developed by CDA can have zones and the land or building is to be used with respect to the referred zones or use provided either in the Ordinance or Rules or Regulations, in this behalf, hence it cannot be said that under section 51 ibid legislature has given vague or wide powers and/or CDA by framing 2005 Regulations have exceeded its authority or acted in violation of/or contrary to the provisions of the Ordinance. The judgement relied upon by the learned counsel for the petitioners in support of their contentions with respect to the referred arguments are in consonance with the principles mentioned above. In past as well various attacks were made on the zoning Regulations/categorization by Capital Development Authority. In Seeds High School through Project Director v. Government of Pakistan through Secretary of Ministry of Law and Justice, Islamabad and 2 others (PLD 2004 Lahore 305) wherein CDA acted against establishment of School in a residential area and the same was assailed before the Hon'ble Lahore High Court in the referred case observed as follows:-- "2. The impugned act of the C.D.A. Has also been challenged upon the touchstone of various fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973,
6. As regards the violation of fundamental rights, it 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.
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 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. "
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 C.D.A. 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 C.D.A. Lay out plans and instruments such as the C.D.A. Master Plan under the C.D.A. Ordinance. The submission of the learned counsel for the petitioner that the Zoning Regulations are ultra-vices of the C.D.A.
Ordinance has not overly impressed this Court.
15. From the argument addressed on behalf of the respondents, it appears that the C.D.A. Is serious in its efforts to curb/ eliminate non-conformist 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.
20. Similarly this Court in case titled Faisal Zafar Malik v. Ajmal Bukhari Deputy Commissioner CDA and 3 others (PLD 2011 Islamabad 36) while examining Regulation 2.17.3 of IRSZR, 2005 upheld the same.
21. It is case of the petitioners that since there is no prohibition in any law on establishment and running: of guest houses, therefore, the same can be done from any building. It has also been argued that by putting a restriction of carrying on the activity of running a guest house is not a restriction but amounts to prohibition and is also in violation of Articles 18, 23 and 24 of the Constitution. The Hon'ble Supreme Court of Pakistan in case titled Arshad Mehmood and others v.
Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 Supreme Court 193) laid down the guidelines regarding the restrictions which are to be imposed and their scope and observed that the word reasonable restriction did not say that it would mean prohibition or prevention completely except under certain circumstances. Similarly the Hon'ble Supreme Court of Pakistan in case titled Pakistan Muslim League (N) through Khawaja Muhammad Asif MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 Supreme Court 642) observed as follows: "28. The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory manner but while "interpreting Fundamental rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable. "(Nasirabad Properties Ltd. v.' Chittagong Development Authority PLD 1966 Dacca 472).
22. Capital Development Authority by categorization of plots and restricting the land use according to the said categorization does not prohibit the petitioners from carrying on or establishing the guest houses rather, a restriction has been imposed whereby such a business/activity can only be carried out from commercial plots/land. Such a restriction does not violate the fundamental rights of the petitioners as observed by the august Apex Court hereinabove; the fundamental rights do not have an overriding effect but balance has to be struck between the rights of an individual and interest of the community.
23. Similar interpretation was made in case titled Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011' Supreme Court 44) wherein the Hon'ble Supreme Court of Pakistan observed as follows:-- "52. The interpretation of Article 18 has been made variously and the judicial consensus seems to be that the "right of freedom of trade, business or professions guaranteed by Art. 18 of the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore not unfettered. The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right. They must, however be reasonable and bear true relation to 'trade' or profession and for purposes of promoting general welfare. Even in those countries where the right to enter upon a trade or profession is not expressly subjected to conditions similar to this Article, it was eventually found that the State has, in the exercise of its police power, the authority to subject the right to a system of licensing, i,e,, to permit a citizen to carry on the trade or profession only if he satisfies the terms and conditions imposed by the prescribed authority for the purposes of protecting and promoting general welfare" (PLD 1989 Kar.
219, Govt. Of Pakistan v. Akhlaque Hussain PLD 1965 SC 527)."
24. Similarly in case titled Higher Education Commission through Project Manager v. Sajid Anwar and others (2012 SCMR 186) the Hon'ble Supreme. Court of Pakistan observed that fundamental rights are subject to law and reasonable restriction imposed by law. In case titled Pakistan Broadcasters Association and 10 others v. Pakistan Electronic Media Regulatory Authority through Chairman and another (PLD 2014 Sindh 630). The Division Bench of Hon'ble Sindh High Court observed that provisions of Article 18 of the Constitution provides that the right of a citizen and freedom of trade business or profession has been organized as a fundamental right of every citizen which can be enforced by law, however, such right is not absolute and is subject to such qualifications as prescribed by law. In case titled Muhammad Qureshi and others v. Mayor, Hyderabad Municipal. Corporation, Iqbal Hyderabad and another (1992 SCMR 857) the august Apex Court observed that right to acquire land and dispose of property under Article 23 of the Constitution is subject to reasonable restriction. In case titled D.G. Khan Cement Company Ltd.
Through Chief Financial Officer v. Federation of Pakistan through Secretary Ministry of Law and 3 others (PLD 2013 Lahore 693) the Hon'ble Lahore High Court observed as follows:-- "17. Fundamental rights and their protection is essential to a modern democracy. "Take human rights out of democracy, and democracy has lost its soul. Human rights are the crown jewels of democracy. A democracy without human rights is like an empty vessel " However, even in a democracy fundamental rights have limitations, this is because "in a democratic society, a human right may be limited to ensure the very existence of the state; to ensure its continued existence as a democracy; to ensure public health; to ensure public education; as well as several other national causes. These are the purposes for which a democratic society may limit the rights of its members ... This demonstrates the special nature of democracy, which is based on the idea that the state protects the rights of the individual, and the individual protects the State - its safety and peaceful existence."
18. In the context of this case, constitutional limitations are embedded in Articles 23 and 24 of the Constitution. The right to acquire, hold and dispose of property under Article 23 of the Constitution is subject to "reasonable restrictions". While the right to property under Article 24 states that no person shall be deprived of his property save in accordance with law. It is essential to understand the meaning and scope of "law" and "reasonable restrictions" under the Constitution.
19. "Laws could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests. Any restriction of human rights not only needs a constitutionally valid reason but also to be proportional to the rank and importance of the right at stake" "Reasonable restriction" or any sub-constitutional limitation (`law') on a constitutional fundamental right must also flow from the Constitution to protect lawful rights and interests of the others or the society at large. The "law" or "reasonable restrictions" in pith and substance must promote and advance fundamental rights of the community at large in order to qualify as a limitation to override the fundamental rights guaranteed to an individual under the1 2 3 Constitution. The "law" or the "reasonable restrictions" must be fashioned to uphold the constitutional themes of democracy, freedom, equality, tolerance, social justice and advance the principles of policy under the Constitution. The roots of sub-constitutional limitation ("law" or "reasonable restrictions") must be grounded in the Constitution itself only then can they possess the constitutional character and strength to take away the fundamental rights of an individual."
25. Insofar as the levy of penalty or fine through Regulations is concerned, the same was dealt with in detail by the Hon'ble Supreme Court of Pakistan through Pakistan Telecommunication Authority
(PTA) Islamabad through Chairman v. Pakistan Telecommunication Company Limited, Headquarters, G-8 Markaz, Islamabad (2016 SCMR 69) wherein the august Apex. Court observed as follows:- "22. Perhaps the Regulation 18(2) of the Regulations of 2005 may not be happily worded and could have been constructed with a greater care and accuracy. It is an ancient and consistently applied principle of Interpretation of Statutes that where "object and intention of statute is clear, it must not be reduced to a nullity by the draftsman's unskillfulness or ignorance" (The Interpretation of Statutes 7th Edition by Sir Peter Mexwer).
23. Even otherwise, it is a settled law that the Courts should always lean in favour of validity of a.
Statutory Instrument and should be slow to strike it down and an interpretation, which saves the law, should be adopted rather than holding a law to be invalid, unconstitutional or ultra vires.
Reference, in this behalf may be made to the judgments reported as (1) Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others (PLD 1975 SC 397), (2) Multiline Associates v.
Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), (3) Messrs Elahi Cotton Mills Ltd and others v.
Federation of Pakistan through Secretary, M/O Finance, Islamabad and 6 others (PLD 1997 SC 582),
(4) Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others (PLD 2007 SC 133), (5) Syed Aizad Hussain and others v. Motor Registration Authority and others (PLD 2010 SC 983), and (6) Dr. Tari4 Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health; Government of Pakistan, Islamabad and another (2000 SCMR 1956).
24. A perusal of Section 23 of the Act of 1996 reveals that it deals with contravention of any provision of the Act of 1996 or the Rules framed there-under for any term or condition of a License and in terms of Section 23(3) (c) (i) of the Act of 1996, a fine may be imposed in this behalf to a maximum of Rs, 350 million. Regulation 18(2) of the Regulations of 2005 deals only with one of such contravention i,e, 'Regulation 18(1) of the Regulations of 2005 for which a penalty/fine CBS 10% per annum is provided. Obviously, the quantum of fine, if imposed, would be subject to a maximum limit mentioned in Section 23 of the Act of 1996. In the instant case, the fine sought to be imposed is less than the amount mentioned in section 23(3) (c) (i) of the Act of 1996. In view' of the above, it is difficult to hold that Regulation 18(2) of Regulations, 2005 is ultra vires the parent statute i,e, the Act of 1996 and the findings to the contrary by way of the impugned judgment are not sustainable."
26. In light of the above judgment of the Hon'ble Supreme Court of Pakistan it is clear that fine or penalty can be imposed through Rules or Regulations if it remains within the object and scope of the parent statute. The Ordinance provides for levy of penalty and punishment of imprisonment under section 46 ibid and Regulation 2.17 prescribes precise amount of fine that can be imposed for non-conforming use, therefore, the same is within the ambit and scope of the Ordinance.
27. It was also argued on behalf of the petitioners that under Regulation 2.17 of IRSZR a house, apartment or flat in a residential building may be used by its resident professional such as a Lawyer, Doctor and Engineer etc. For Home occupation with prior permission of CDA provided that over all residential character of the building does not change and not more than 25% of covered area is used for professional work. Through the referred Regulation CDA has made reasonable classification by providing a category whereby professionals with permission of CDA can use their properties for professional, work provided the area used for such work is not more than 25% of the C covered area and there is no complaint by neighbours of nuisance, hence the Regulation in question is not discriminatory in any way or is in violation of the parent statute.
28. The key question that calls for adjudication in the instant case is whether use of a residential property for establishment and running of a guest house is in violation of the zoning Regulations inasmuch as whether the same amounts to a commercial activity. IRSZR, 2005 as well as ILDR, 2005 categorize/classify plots into different categories. The relevant classifications for the purposes of the instant cases are into residential and commercial and business. In this behalf in Regulation 3(2) of ILDR running of guest houses has been classified as a commercial and business activity and residential plots have been defined as plots meant only for houses. The word house is defined in Regulation'2(1)(k) as a separate dwelling for human habitation for a family. Similarly, the restriction on any use of residential building which is non-conforming renders the owner and occupant to fine under Regulation 2.17.3 of IRSZR, 2005. In this behalf nonconforming use is defined in Regulation 1.2.92 as use of a plot or structure thereon not conforming to the purpose authorized or permitted under the Regulation or the condition of allotment. Similarly, residential building is defined in Regulation 1.2.121 as a building authorized for residential occupancy by one or more families but does not include hotel or lodging house. Finally. a house is defined in Regulation 1.2.72 of IRSZR, as a building to be used for residential occupancy of one or more families as prescribed under the Regulations. The bare perusal of Regulation 2.17.3 and the definitions of residential building, house and non-conforming use shows that residential use of a property is meant for habitation by a family or families. Similarly Regulation 3 classifies guest houses as commercial activities and takes it beyond the scope of residential house. The Division Bench of Hon'ble Peshawar High Court in case titled Muhammad Sayyah ud Din v. Director General Peshawar Development Authority and 2 others (2015 CLC 84) while dealing with the matter under similar facts and circumstances wherein Peshawar Development Authority had initiated action against guest houses observed that use of residential property for a guest house is a commercial activity and further observed that they cannot be allowed to carry on commercial activities from the said building. The learned counsel for the petitioners during the course of arguments submitted that renting out a residential building for a specified term is permissible and is not in violation of zoning Regulations. Likewise establishing a guest house and taking guest for a short period of time should be allowed and, does not amount to a commercial activity. Admittedly, the guest houses have been given commercial meters for electricity and when guests are accepted for consideration the use does not fall within the definition of residential use as provided in IRSZR, hence the use does not remain residential whereas where the property is let out for residence its use as residential building or a house within the meaning of the concepts as provided in the definition clause of Regulations remain intact. In view of above though the establishing and running of guest houses is not Prohibited Under the law, however, the petitioners are to abide by the zoning Regulations and land use in accordance with the Regulations of 2005 as well as the Ordinance: Any use which does not conform with the classifications made by CDA or as prescribed under the Regulations would tantamount to a non- conforming use within the meaning of the concept as provided in 2005 Regulations and would render the owner and occupant liable for action under the law. In view of above findings there is no justification or basis for striking down any provision of the Ordinance, the Islamabad Land Disposal Regulation, 2005 or the Islamabad Residential Sector (Building Control) Zoning Regulations, 2005.
29. For the foregoing .Reasons the instant petition as well as all the petitions mentioned hereinabove are devoid of merit and are therefore, dismissed.
Schedules - A, B & C (Number of Writ Petitions and party names not reported)
A. Barak, Proportionality (Cambridge) p.161. A. Barak, Proportionality (Cambridge) p.161., p.162. D. Grimm "Human Rights and Judicial review in Germany" in D.M. Beatty (ed) p.139/140 barak, Emphasis supplied.