AWAIS ASLAM ALI vs CAPITAL DEVELOPMENT AUTHORITY Ss — 2024 YLR 1422 ISLAMABAD

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AWAIS ASLAM ALI VS CAPITAL DEVELOPMENT AUTHORITY Ss. 36(3) & 49-C---Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005 [since repealed], Cl. 2.17.3------Non-conforming use of property---Penalty, imposition of---Commissioner Capital Development Authority (CDA), powers of---Review jurisdiction---Scope---Commissioner CDA, relying on requisitioned report of an Officer CDA, set-aside penalty imposed upon the owner by the Deputy Commissioner CDA vide ex-parte order---Petitioner/owner invoked constitutional petition of the High Court as the (successor)Commissioner re-instated penalty allowing review, filed after four years, by the CDA---Validity---Earlier the Commissioner CDA, in appeal proceedings filed by the petitioner/owner, directed that an inspection of the house-premises be conducted by an Officer (HVC), who found that the premises-in-question had been rented out in residential use and no office was set up in the premises-in-question; on basis of said report, the Commissioner had set-aside penalty/fine imposing order---CDA filed a review pursuant to S. 36(3) of the Capital Development Authority Ordinance, 1960, whereas the proviso to said section reflected that the scope of the review (under said provision/proviso) was quite similar to the scope of review before the Courts---In the present case, it was apparent from the impugned review order that it had not been passed to correct any error floating on the surface of the record---Commissioner, while passing the impugned (review) order, sat in appeal over the decision rendered by his predecessor almost four years ago, and took into account additional factual aspects (screen shot of webpage asserted by the CDA as non-residential address of petitioner)---Said aspect was neither the basis of CDA seeking review nor could have been a valid ground for passing an order in review jurisdiction---If at all, fact(s) suggested that the petitioner/ owner was liable for non-conforming use of his property, fresh proceedings could have been initiated for such non-conforming use---What the CDA sought to do was not to seek the correction of an error floating on the surface of the record, but was to seek the order of the Commissioner to be set-aside through a fresh appreciation of facts---By engaging in such exercise the Commissioner acted beyond his review jurisdiction and sought to decide the matter afresh essentially in exercise of appellate jurisdiction--- Therefore, impugned order having been passed without jurisdiction, was not sustainable in the eye of law--- Constitutional petition, filed by the owner, was allowed under circumstances.

AWAIS ASLAM ALI vs CAPITAL DEVELOPMENT AUTHORITY Ss — 2024 YLR 1422 ISLAMABAD

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