COVER STORY

 

The Capital Development Authority: Non-Conforming Use

 

by Wasim Abid & Rahman Ali Khan, Partners at Abid & Khan Law

 

The city of Islamabad, located in the Potohar Plateau, is the capital city of the Islamic Republic of Pakistan. The foundation for the city of Islamabad was laid in the year 1960. As per records available from the website of the Capital Development Authority, “After the formation of Pakistan in 1947, it was felt that a new and permanent Capital City had to be built to reflect the diversity of the Pakistani nation. It was considered pertinent to locate the new capital where it could be isolated from business and commercial activity of (sic) Karachi, and yet is easily accessible from the remotest corner of the country. A commission was set in motion in 1958, entrusted with the task of selecting a suitable site for the new capital with a particular emphasis on location, climate, logistics and defense requirements, aesthetics, and scenic and natural beauty”.

Islamabad was subsequently carved out of the area, which previously fell within the territorial limits of the district of Rawalpindi, and hence declared as the capital city of Pakistan. In 1960, known as the Capital Development Authority Ordinance, 1960 (the CDA Ordinance), was passed, through which an authority was formed which would serve both regulatory and planning and development functions for Islamabad. This authority was to be called the Capital Development Authority (CDA).

CDA was tasked with the preparation of a master plan for Islamabad (the Islamabad Master Plan) and additional phased master programs, based on which the planning and development of the city of Islamabad was to take place. It was apparent that the dual functions of regulation and development entrusted to CDA (through the CDA Ordinance) were intended to be split into three phases. The first phase would encompass preparation of the Islamabad Master Plan. The second phase would institute the development of the city of Islamabad by using the Islamabad Master Plan as a blueprint. The third phase of CDA’s functions was to be of a regulatory nature - to regulate development activities in Islamabad and to ensure that the Islamabad Master Plan does not suffer from any violation.

In 1960, CDA was given free rein to make the best use of its abilities in the development and regulation of the city of Islamabad. There are various planned cities around the world that are evidence of how well a properly planned and regulated city can be run. Zurich (Switzerland), Singapore City (Singapore) and Brasilia (Brazil) are examples of extremely well run cities through the strength of their development and regulatory authorities. CDA had a chance to establish Islamabad’s status as a well-run planned city; it had a blank canvas.

However, as is the case with most executive functionaries in Pakistan, CDA fell prey to political pressures, inefficient administration and corrupt practices, which paved the way for the development of Islamabad in a haphazard manner in clear and patent violation of the Islamabad Master Plan. Planning of the city of Islamabad is a statutory function of CDA that goes hand in hand with the development of Islamabad. A serious lack of planning by CDA for the city of Islamabad is exposed by recent haphazard development and astronomical growth.

Failure of even one of the functions entrusted to CDA (planning, development or regulation) has a domino effect on the other two functions. You cannot have the development of a planned city without proper, careful planning. You cannot institute mass scale development of a planned city without proper regulation to absorb the increased pressure of development. Even then, a city cannot run well without stringent regulation. This is especially true for any city in Pakistan. Stringent regulation is the key to ensuring that a city is well run. Regardless of any external factors, there is absolutely no doubt that the recent troubles of the city of Islamabad are, unfortunately, a direct consequence of CDA’s failure to perform its statutory duties properly.

 

Non-Conforming Use

Non-conforming use is defined in the Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005, as “…use of a plot or structure thereon not conforming to the purpose authorised or permitted under this regulation or the conditions of allotment…” The very public issue of non-conforming use reared its ugly head in the city of Islamabad as a result of CDA’s failure to perform its statutory duties properly for years on end. Lack of planning, improper development and lackluster regulation all combined together to form a logistical nightmare for Islamabad, the results of which are evident today.

Land in the city of Islamabad is vested in CDA, as per the provisions of the CDA Ordinance. CDA then sells, leases, disposes of or auctions the land in Islamabad to individuals or entities for different purposes. CDA, consistent with its status as a Government authority, is empowered to acquire land in accordance with the procedure laid down in the CDA Ordinance. Following acquisition of land, CDA can then lease, sell or auction it for purposes that are clearly defined under the law.

In the Islamabad Land Disposal Regulations, 2005 (the Land Disposal Regulations), CDA has itself provided a categorized list of purposes for which a piece of land in Islamabad can be disposed of by CDA. The Land Disposal Regulations classified plots and land in Islamabad into the following categories: Residential, Commercial and Business, Community Buildings and Facilities, Administrative and Public Sector, Industrial, Diplomatic, Public Parks, Agro-Farming and Agro-Industry and Model Villages and Sub-Urban Centers.

Therefore, by definition, non-conforming use would mean the use of a plot or land in Islamabad for any purpose other than the classification provided by the Land Disposal Regulations. For example, commercial use of a residential plot (and vice-versa) would fall under the purview of non-conforming use. It must be remembered that plots and land in Islamabad have been earmarked and planned in accordance with the Islamabad Master Plan. 

However, in the recent past, especially in the past decade, CDA has chosen to ignore the patent violation of its laws by the public in Islamabad. This was a clear failing of CDA’s fulfillment of its statutory duty of regulation in Islamabad. A consequence of this failing, of turning a blind eye to clear violations of CDA laws, was the primary cause of the rise of non-conforming use in Islamabad. The crux of the issue was the operation of businesses from residential premises; on plots or land earmarked for residential use by CDA itself. Non-conforming users included guesthouses, restaurants, private offices, schools and other commercial establishments.

This was not a recent phenomenon either, these commercial establishments of the non-conforming users had been brazenly operating from residential plots or land for decades. Furthermore, these commercial establishments were not hidden away in side streets either; they were ever present in all the major areas in the city of Islamabad, most notably along Margalla Road. By not acting against these violators for a decade, CDA is as much to blame as the violators for Islamabad’s recent malaise. Due to this absence of regulation, the residents of Islamabad had no deterrent to not consider prime residential real estate for commercial purposes.

After allowing the non-conforming users to continue unabated in the city of Islamabad for more than a decade, CDA finally woke up and initiated an ostensible crackdown carried out through the sudden and immediate sealing of the premises occupied by the non-conforming users. The non-conforming users grouped together and approached the Islamabad High Court to seek a declaration, claiming that the actions of CDA were illegal and discriminatory (the High Court Petition).

The High Court Petition also challenged the legality of the CDA Ordinance, as well as any regulations introduced by CDA (the CDA Regulations). The non-conforming users contended that the CDA Regulations, created by CDA, vest unfettered and unbridled discretion in CDA, which is against the settled principles of law. They also claimed that the CDA Regulations were irrational in nature on a number of grounds. The Islamabad High Court, after hearing around 100 non-conforming users, held that, “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. Islamabad Residential Sectors Zoning Regulations (IRSZR) 2005, as well as Islamabad Land Disposal Regulations (ILDR) 2005 categorize/classify plots into different categories. The relevant classifications for the purpose of the instant cases are into residential and commercial and business. In this behalf in Regulation 3(2) of the ILDR running of guesthouses 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, restriction on any use of residential building, which is non-conforming, renders the owner and occupant liable to a fine under Regulation 2.17.3 of IRSZR 2005. In this behalf non conforming 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… in view of the 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 the occupant liable for action under the law…”

The Islamabad High Court gave the above finding after a lengthy litigation, which spanned over a period of nearly 15 years. A few guesthouses initially filed the case pertaining to non-conforming use in the year 2001 before the Rawalpindi Bench of the Lahore High Court in Rawalpindi. The Islamabad High Court was established in the year 2010, prior to which, all Islamabad related cases and in particular, CDA cases, were heard at the Rawalpindi Bench of the Lahore High Court in Rawalpindi. All cases pertaining to the territory of Islamabad which were pending before the Rawalpindi Bench of the Lahore High Court in Rawalpindi were transferred to the Islamabad High Court following its inception in the year 2010. As part of this process, CDA’s case for non-conforming use (in which no substantial progress had been made) was also transferred to the Islamabad High Court.

In the year 2014, the Islamabad High Court vacated the restraining orders passed by the Lahore High Court in the year 2001. This decision was challenged before the Supreme Court of Pakistan, which remanded the case back to the Islamabad High Court with a direction to decide the matter in an expeditious manner, on its merits. After hearing the submissions of nearly 100 non-conforming users, the Islamabad High Court passed a verdict in January 2015, upholding CDA laws (which do not allow for non-conforming use) and in doing so, dismissed all pending petitions.

This verdict of the Islamabad High Court was appealed against and heard before the Supreme Court of Pakistan. The Supreme Court of Pakistan remanded the matter back to the Islamabad High Court with a direction to decide the matter afresh. This was because the Islamabad High Court, while deciding the matter, did not take certain provisions of the law into consideration. The Islamabad High Court heard the matter of non-conforming use for a second time, and passed the same order as it did previously, upholding CDA laws, and in doing so, dismissed all pending petitions for a second time.

The Supreme Court of Pakistan is seeking implementation of CDA laws across the board, without any discrimination. During the pendency of proceedings before the Supreme Court of Pakistan, CDA also acted against government institutions, which were also guilty of non-conforming use. For example, the offices of the Inspector General Police, Islamabad and the Inspector General, Motorways and National Highways Police were also vacated on account of non-conforming use on account of being established in residential premises. However, it is interesting to note that CDA only acted against these institutions after being directed by the courts to do so.

 

Private Educational Instututes

Private educational institutes are another such entity that is being afforded favourable terms by CDA. The residents of Islamabad are not against the existence of private educational institutes; however, it is an admitted position that the Government of Pakistan (regardless of who is in charge) has miserably failed to provide quality education to the citizens of Pakistan. The education system in Pakistan and most importantly, the state of affairs in public schools has left the citizens of  Pakistan with no choice but to opt for private educational institutes. Over the years, this has resulted in a mushroom growth of private educational institutions in not only Islamabad, but across Pakistan, due to an ever-increasing demand. It helps that the quality of educational services and the provision of a student friendly environment (something the public sector education system cannot provide) has been a contributory factor in this development. This has seen the establishment of numerous schools, colleges, tuition centres and universities on plots earmarked for residential use in the heart of Islamabad.

The focus is not on the merits of the provision of education - which is a State function - by private schools; the argument here is that these institutions are not above the law. The law allows for the establishment of private institutions at specified plots in Islamabad, marked specifically for educational institutions. The establishment of private educational institutes is a clear violation of CDA laws and falls under the definition of non-conforming use. Yet, the citizens of Islamabad are expected to ignore this reality just because these institutions are serving a function the State is gloriously failing at. Educational institutes established in the heart of Islamabad on residential plots are threatening the functioning of this city. There is a school, college, tuition centre or a university in every sub-sector of Islamabad. On many streets, you will find two or three such institutions. One stretch of the Nazimuddin Road (Sector F-8) is home to four educational institutions. There is no denying the fact that the law is equal for everyone, i.e.: non-conforming use means non-conforming use, regardless of the nature of the commercial establishment. 

As a consequence of educational institutions being established on residential plots, the state of affairs on Margalla Road and Nazimuddin Road in Islamabad is particularly apparent. Many private educational institutes have their branches located on these roads in the main sectors of Islamabad. Due to the volume of educational institutions and consequently, the volume of students, the negative impact this has had on traffic in central Islamabad is being endured by everyone on a daily basis. As a result, the quality of life for residents of Islamabad has deteriorated substantially.

The nuisance and invasion of privacy that results from educational institutes occupying residential plots is evident. One resident in Islamabad, who resides in Sector F-10, has a private school (established on a residential plot) opposite his residence. The only thing that separates his house and the private school is a twelve feet wide single road. The traffic congestion in front of this resident’s house during school hours is inexplicable. This resident usually advises visitors to not visit or pass by his street during 12 pm to 3 pm because of the traffic congestion. The traffic congestion there is so serious that an ambulance was once stuck in the midst of it, as a result of which, a patient suffering from a stroke could not get to the hospital on time. This patient happened to be one of the residents residing opposite this school. The residents of that area not only feel imprisoned in their houses, but also feel that the privacy of their homes, their sacred space, is being invaded by the school security guards standing outside their houses. It takes those residents an average of fifteen to twenty minutes to leave their own house. This is true for the residents of all streets in which an educational institute has been established illegally on a residential plot.

The nuisance that these educational institutions cause to their neighbouring residents cannot be understated. Residents are treated to constant noise, dust from the playgrounds, drivers loitering around their streets, early morning renditions of the national anthem played on loudspeakers; the list is endless. There is also no doubt that CDA is completely at fault for this. Providing education does not exempt these educational institutions from falling under the ambit of non-conforming use. It would still be non-conforming use if it were a hospital or a doctor’s clinic instead. The categorisation of offenders of non-conforming use laws and differentiated treatment based on the nature of business is not a good precedent to set. It is impossible to decide which commercial function is more deserving of exemption from non-conforming use laws.

CDA’s clarification for their inaction against educational institutes on residential plots in Islamabad is that the Islamabad High Court has restrained CDA from taking any action against these institutes. After reviewing the Order of the Division Bench of the Islamabad High Court, it appears that a private educational institutes’ association has instituted proceedings before the Islamabad High Court and has obtained a stay order against eviction by CDA. However, the interesting thing to note here is that very few educational institutes are part of this private educational institutes’ association and legally speaking, those who are not part of this association can be proceeded against by CDA. The Supreme Court of Pakistan in a case pertaining to this very same issue had in fact reiterated this position. However, CDA is yet to comply with its own law and with the directions of the Supreme Court of Pakistan, showing clearly that CDA is favouring these private educational institutions by deliberately not taking any action against them.

From CDA’s perspective, reluctance in taking action against educational institutes established on residential plots is a positive step towards ensuring consistency in the standard of education provided to the citizens of Islamabad. This argument finds favour with most parents in Islamabad. Interestingly, it was discovered during proceedings in the Islamabad High Court and the Supreme Court of Pakistan that in the year 1999, CDA had created a list of private educational institutions and instructed them to move from residential localities to plots specified and reserved for educational institutions within five years. Those five years lapsed in the year 2004. These private educational institutions not only continue to function undeterred but also keep growing - in both student intake and its expansion of facilities into neighbouring residential areas. 

CDA’s attitude towards the handling of the issue of non-conforming use where private educational institutions are concerned is irresponsible, indecisive and unclear. The law on non-conforming use is clear; it will not be allowed, regardless of the function of the commercial establishment. It is evident that CDA was aware of this situation in the year 1999 when it afforded a five-year transition period to educational institutions yet, no action has been taken to date nor was the law being complied with for more than a decade. This evidently did not bother CDA in the slightest.

CDA is empowered to handle the development and regulation of the city of Islamabad. Had CDA taken timely and decisive action in 1999, we would not have seen such an astronomical growth in the establishment of private educational institutions in every nook and cranny of Islamabad. This is a patent violation of the law and these institutions continue to infringe upon the fundamental rights of the citizens of Islamabad, which are guaranteed to them under the Constitution of the Islamic Republic of Pakistan. Even worse, CDA has chosen to ignore directions from the Supreme Court of Pakistan.

Guest Houses

Similar to private educational institutions, guesthouses in Islamabad, which are operating from residential plots, are also beneficiaries of CDA’s selective lenience. Guesthouses were at the forefront of this issue when litigation was initially instituted in the year 2001. Yet they are still in operation. This is after the judgement of the Islamabad High Court in which they were declared to fall under the ambit of non-conforming use. For some unknown reason, CDA is reluctant to take action against illegal guesthouses in Islamabad. It can only be explained by inefficient administration and mismanagement, which if true, should not be taken lightly. Those responsible for this maladministration and mismanagement should be taken action against.

Another disturbing point of view to be considered is that CDA is not taking any action against illegal guesthouses in Islamabad because it is too incompetent as an authority to effectively take such action, having burnt out from the backlash following their operations on other commercial establishments in Islamabad that were established on residential plots. CDA’s selective lenience is setting a very disturbing precedent; citizens of Islamabad cannot be blamed if they believe that the law exists only to decorate legal libraries. When Court Orders are so easily flouted and not adhered to, the confidence of the people in the rule of law is bound to not only diminish but will evaporate completely with the passage of time.

 

The Curious Case of Sector E-11

As a result of recent CDA related Court proceedings, it was discovered that Sector E-11 in Islamabad falls outside the jurisdiction of CDA. One can only imagine the state of affairs of CDA if this is the official position it has put forward. However, if these findings are still in their infancy, CDA should declare a clarification and implement their regulatory writ in Sector E-11 as well. The laws of CDA are not adhered to in Sector E-11.

As a consequence, Sector E-11 does not resemble any other part of Islamabad. Following CDA’s crackdown on non-conforming users, many of those commercial outlets have resurfaced in Sector E-11 in residential areas with no concern for non-conforming use. Advertising boards are displayed outside residential buildings, which host commercial establishments. Failure on the part of CDA to take a decision on the applicability of its laws in Sector E-11 and implement its writ there is transforming Sector E-11 into a logistical nightmare.

A reading of the CDA Ordinance (and its by-laws), and the judgement of the Supreme Court of Pakistan relating to a case of auction of land in Sector E-11, it is evident that the laws of CDA are applicable to the entire Islamabad Capital Territory and by default, to the whole of Islamabad. This is purely because the laws of CDA are passed by the Parliament of Pakistan. Regulations introduced by CDA are in the form of delegated legislation, which is notified pursuant to statutory powers.

Worryingly, the widespread and unchecked non-conforming use in Sector E-11 is reminiscent of the unchecked growth of non-conforming users in other sectors of Islamabad. CDA cannot let this happen again, it needs to be proactive to ensure that recent history does not repeat itself. CDA is letting the public and the courts do its job for them. By doing nothing, CDA is patiently waiting for citizens of Islamabad to bring these issues to the notice of the courts. The courts will then decide policy for CDA and direct CDA to take action. This is a vicious cycle that is born out of CDA’s maladministration, selective inaction and indecisive nature. The buck stops with CDA, no one else is to blame.

 

New Hope

A judgment dated 22nd September 2016, of the Islamabad High Court has provided CDA with a golden opportunity to take action against everyone found to be violating the law. In the past, CDA has often taken cover behind the fact that the matter is pending before the Courts and hence it cannot take any action. Now the High Court verdict has empowered CDA. There is no excuse anymore. There is a statutory body. There is a law. There are specific functions entrusted to the statutory body by the law. The law is clearly not being followed. The statutory body has the power to act against those who are not following the law. The Courts have upheld this position. The statutory body should take necessary action now.

CDA had a golden opportunity to make Islamabad a role model for other cities in Pakistan to follow with respect to town planning, but it failed to do so in the past. After the recent verdict of the Islamabad High Court, CDA has found itself another lifeline to set the law in motion and correct the illegalities it had not acted against in the past.

 

It is up to CDA and the officials heading this regulatory authority to decide whether they want to make use of this lifeline given to them by the Courts. The law was already in existence; it has been since the year 1960. The problem is that the law has seldom been followed. Now is the opportunity to follow the law in letter and in spirit. The city of Islamabad can still be saved. All that is required is for all of us to act together and perform our functions and duties collectively. CDA should follow the law and the duties and responsibilities and obligations defined therein. No undue favours should be extended. No discrimination should be tolerated. We have a chance to save this city and make it one of the most beautiful cities in the world. Let us hope CDA does not waste this opportunity either.