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January 22, 2015

CDA ordered to bring residential areas to original condition immediately

Islamabad

January 22, 2015

Islamabad
Justice Shaukat Aziz Siddiqui of the Islamabad High Court (IHC) here on Wednesday directed the CDA to immediately take steps for bringing the residential areas into their original condition within three months where commercial activities like guesthouses, restaurants, display centres, showrooms, beauty parlours, saloons, office of government departments, private sector, NGOs, educational institutions, offices of TV channels, clinics etc and in any other name and style are being carried out and falls within the definition of non-conforming use.
The IHC bench issued these directions while dismissing 23 writ petitions in which the petitioners had been contending that the Capital Development Authority (CDA) bylaws regarding commercial activities in residential areas were against constitution and fundamental rights.
A 19-page detailed judgment has been issued in which the court observed “the petitioners have failed to make out a case for the issuance of the writ in their favour. These petitions are hereby dismissed with the directions to the respondents to act in accordance with law and regulations”. The judgment says that Article 4 and 25 of the constitution provides that every citizen is equal before the law. If petitioners want to protect their source of livelihood they have option to purchase land and establish their hotels and guesthouses.
It was on June 6, 2014 when the same IHC bench had vacated as many as 70 stay orders obtained by different persons from civil courts against non-conforming use of their residential properties for commercial purposes.
As many as 70 petitioners had adopted before the court that they have got stay orders from civil courts for using the residential areas for commercial activities while the CDA has issued them notices and its officials harassed them. The IHC bench had directed to the CDA chairman to take action against the violators.
After June 6, 2014 when these stay orders were vacated, the

petitioners then filed writ petitions with contentions that the bylaws of development authority were in contravention to the constitution.
Justice Siddiqui through this recent judgment has adjudicated the said matter.
The judgment noted “no discretion lies with civic body to allow non-conforming use and if powers containing under regulations number 2.1.1, 2.1.2, 2.17 and 4.1.7 permit so, they lead to arbitrary exercise of authority, paving ways of corruption, and calling questions about the master plan therefore, same are declared to be of no consequence. CDA is not vested with powers to allow commercialisation of residential buildings offensive and invading to the sector/zonal master plan of ICT”.
The IHC judgment further noted “the non-conforming use is certainly an offence provided in section 46 of the ordinance and also in regulation 2.17.3 of the building regulations”.
It further says that Islamabad residential sector zoning regulations 2005 provides the penalty for the non-conforming use of the property which is also in accordance with the law and it is not discriminatory in any manner whatsoever. The Islamabad Land Disposal regulations 2005 in the classification of plots have provided the plots for commercial activities while mess of non-conforming use has disrupted civic fibre of the city, judgment also says.
Justice Siddiqui has noted that CDA was established in 1960 with high hopes that it would manage the establishment of a state of the art city in Pakistan but it appears that the authority has failed or reluctant to discharge its lawful obligations as a number of commercial activities have commenced right under the nose of the authority but nobody has taken strict action in this regard. Only when some matter comes before the courts and direction issued then authority shows some fake progress and thereafter shuts its eyes. It appears that either authority is helpless to respond to the violations of the laws, rules and regulations or it has given the consent to such sort of activities for ulterior motives. IHC judgment noted that it appears from the list of buildings being used commercially ‘that havoc is being committed with the city as a large number of residential buildings have been changed to commercial purposes and strict action has been taken’.

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