Mrs. SHAMSHAD BUTT vs DEPUTY COMMISSIONER C — 2023 CLC 304 ISLAMABAD

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Mrs. SHAMSHAD BUTT VS DEPUTY COMMISSIONER C.D.A., ISLAMABAD S.49-C---Non-conforming use of building---Deputy Commissioner, duties and powers---Deputy Commissioner, Capital Development Authority (CDA) on the basis of such report may initiate proceedings in terms of section 49-C of Capital Development Authority Ordinance, 1960 read with relevant clauses of Islamabad Residential Sector Zoning (Building Control) Regulations, 2005, and issue notice to the occupant/allottee/owner accordingly---Deputy Commissioner, CDA after issuing notice to the occupant at the first instance, if comes to conclusion that building is continuously under non-conforming use and he has given due opportunity of hearing to the occupant, who whether joins proceedings or otherwise, may pass an-interim order of sealing of the premises by all means without final verdict---In case, occupant undertakes to remove subject non-conforming use within reasonable time, Deputy Commissioner, CDA may on undertaking give such opportunity for removal of the non-conforming use for a limited period, which can be verified after specified time line---In case, occupant has not removed property from non-conforming use, Deputy Commissioner, CDA may pass a final order of imposing penalty and sealing of premises---Deputy Commissioner, CDA issues notice to allottee along with report of Building Control Inspector conveying him non-conforming use of property---Deputy Commissioner, CDA has to ensure proper service of notice to occupant by way of Registered Post and also by Special Messenger and may even affix notice upon subject premises before taking action---Deputy Commissioner, CDA has to take report of Building Control Section, CDA and may put the same or confront to occupant or allottee for his input or rebuttal by way of affidavit and may also extend an opportunity to occupant/landlord/allottee to rebut the same---Deputy Commissioner, CDA while imposing fine upon occupant has to pass speaking order justifying his penal action against occupant/allottee. Citation Name: 2023 CLC 304 ISLAMABADBookmark this Case Mrs. SHAMSHAD BUTT VS DEPUTY COMMISSIONER C.D.A., ISLAMABAD S.49-C---Non-conforming use of building---Cancellation of allotment---Estate Management Section of CDA---Duties and functions---Estate Management Section of Capital Development Authority (CDA) can only cancel allotment or conveyance deed of such premises under non-conforming use, if Deputy Commissioner, CDA reaches to the conclusion that owner is guilty/liable for non-conforming use under the law and even persistently using building in a similar manner, despite passing of the order---Estate Management Section, CDA has to independently issue a notice to allottee before cancellation of allotment on the basis of order of Deputy Commissioner, CDA if no plausible explanation has been rendered by allottee within prescribed time referred in the notice. Citation Name: 2023 CLC 304 ISLAMABADBookmark this Case Mrs. SHAMSHAD BUTT VS DEPUTY COMMISSIONER C.D.A., ISLAMABAD S.49-C---Non-conforming use of building---Determination---Duties of Building Control Inspector---Report of Inspector---Necessary ingredients---Building Control Inspector who visits building / office / house, which is under non-conforming use, has to submit a written report clearly stating therein name, date, time when the building was visited as well as reasons on the basis of which he reaches to the conclusion that building is under non-conforming use---Report must contain timeline of non-conforming use tentatively to assess quantum of fine by Deputy Commissioner, Capital Development Authority (CDA) till removal of non-conforming use---Any visiting card, sign board, pictures, video evidences, letter head correspondence, which can be made basis of opinion of non-conforming use of the building may also be made part of the report including but not limited to statement of individuals who are occupant in the building, if any. Citation Name: 2023 CLC 304 ISLAMABADBookmark this Case Mrs. SHAMSHAD BUTT VS DEPUTY COMMISSIONER C.D.A., ISLAMABAD Regln.2.17.5---Non-conforming use of building---Sealing of premises---Procedure---In terms of Regln. 2.17.5 of Islamabad Sector Zoning Building Regulation 2005, building under non-conforming use may be sealed after expiry of 15 days of first notice issued by Building Control Directorate by Director Enforcement, CDA or any person empowered by the Authority in presence of Magistrate of Capital Development Authority (CDA) upon issuance of order for sealing of said premises by Director Building Control CDA. Citation Name: 2023 CLC 304 ISLAMABADBookmark this Case Mrs. SHAMSHAD BUTT VS DEPUTY COMMISSIONER C.D.A., ISLAMABAD S.49-C---Constitution of Pakistan, Art. 199---Constitutional petition---Non-conforming of use of building---Penalty, imposition of---Petitioner was owner of building in question and was aggrieved of penalty imposed on her for use of building by her lessee other than residential purpose---Validity---Petitioner landlady did not lease out the premises on commercial basis---Any such non-conforming of use was the sole act of lessee---No direct evidence was available on record and even Capital Development Authority (CDA) did not demonstrate as to why they had not taken action against subject premises by sealing the same by issuing notice to subject occupant--- Such a pick and choose exercise by CDA authorities was in violation of principle of fairness--- Orders passed by Deputy Commissioner CDA or by Estate Management, CDA were in excess of jurisdiction and passed in violation of principle of natural justice---High Court in exercise of remedial jurisdiction could not review findings of case rendered by lower forum---Factual aspect of the matter was not appreciated by Deputy Commissioner as well as CDA authorities under CDA By-laws---Authorities violated fundamental rights of petitioner and imposed a fine which was not proved under the principle of due process of law and fair trial---Findings of authorities are based upon no evidence---Orders passed by authorities could not be termed as fair rather passed in disregard to statutory provisions of law and resulted into complete failure of justice---High Court set aside orders passed by authorities and remanded the matter to Deputy Commissioner, CDA for decision afresh---Constitutional petition was allowed accordingly.

Mrs. SHAMSHAD BUTT vs DEPUTY COMMISSIONER C — 2023 CLC 304 ISLAMABAD

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