Muhammad Anwer Chaudhary Versus Capital Development Authority through Chairman, CDA
Muhammad Asif, J .--- Through the instant writ petition, the petitioner prayed as under:
"In view of the above, it is most humbly and respectfully prayed that the instant writ petition may kindly be accepted and the revised Layout Plan may kindly be cancelled and the conversion of all plots mentioned in Para 02 of the Petitioner may kindly be declared illegal, unlawful, void ab initio and without lawful authority and the same are liable to be restored to its original position as per Original Layout Plan.
A direction may kindly be passed for initiation of criminal action against CBR housing society officials for their purposeful, intention, flagrant violation of law and provision of Articles 4, 9, 23 and 26 of the Constitution of Pakistan.
Any other relief which the Court deems fit may kindly be granted by this Hon'ble Court in the Best Interest of Justice and Good conscience."
2. Briefly stated, the facts of the case are that the petitioners are residents of the Central Board of Revenue Employees Cooperative Housing Society Islamabad ( "CBR-ECHS" ) is a cooperative society registered under the by-laws of Capital Development Authority ( "CDA" ), wherein Layout Plan of the CBR-ECHS was passed by CDA on 24-02-2007. That in the month of March, 2023 it came to the knowledge of the petitioners that the CBR-ECHS is revising the Layout Plan and converting the green area, amenity plots and residential plot in to commercial and residential, one. That the petitioners submitted objection application on 18-03-2023 prior to the approval of Revised Layout Plan, but the CDA on 21-03-2023 approved Revised Layout Plan of CBR-ECHS Phase-I, Islamabad in connivance with CDA officials vide letter No.CDA/PLW-HS-(RP)-2(714) 96/Vol-III/832 ( "Revised Layout Plan" ) without following the due procedure of law and without considering the applications/objections of the petitioners which were filed prior to approval of Revised Layout Plan. Against the Revised Layout Plan, the petitioners in the first round of litigation filed a Writ Petition No.1716 of 202 before this Court, wherein this Court passed an order directing the CDA and Secretary CBR-ECHS to decide the representations/ applications/objections of the petitioners to decide the same within two weeks after affording opportunity of hearing to the petitioners in the light of law laid down in the Order dated 13-06-2023 passed in ICA No.652/2013 as well as the judgment reported in 2019 YLR 1625 against the approval of the Revised Layout Plan. The CDA without giving a deaf ear to the objection of the petitioner, the arguments advanced by the petitioners as well as the judgment of the Courts decided the objections of the petitioners vide impugned letter dated 27-11-2024. The petitioners being aggrieved from the impugned letter filed the instant writ petition.
3. The learned counsel for the petitioner stated that Revised Layout Plan approved through impugned letter has been totally illegal, unlawful and against the facts of the matter, wherein the fundamental rights of the petitioners are prejudiced; that the petitioners being the residents of the CBR-ECHS are aggrieved against the approval of Revised Layout Plan by changing the amenity, river and green area plots into residential and commercial one; that the action of CDA and management of CBR-ECHS are devaluing the property values of the petitioners, but it is also in violation of the law and against the Original Layout Plan, which got approved in the year 2007 on the basis the petitioners invested their life earnings for peaceful living; that the CBR-ECHS in connivance of the CDA without following due process of law: that the acts of CBR-ECHS and CDA patently against the provisions of CDA Ordinance, 1960 and Islamabad Capital Territory (Zoning) Regulations, 1992, Regulations of Amendment in Layout Plans, 2019 and Regulations for Planning and Development of Private Housing/Farm Housing, Apartments/ Commercial Schemes/Projects in Zones 2, 4 and 5 of Islamabad Capital Territory 2023 as well as dictum laid down by the courts; that this Court repeatedly restrained CDA from such actions in reported case 2019 YLR 1625 ; that the act of the management of CBR-ECHS and CDA is against the Articles 4 and 23 of the Constitution of Islamic Republic of Pakistan 1973 ( "the Constitution" ) where the right to own and enjoy one's property and nobody can deprived of his rights in the property without adhering is guaranteed; that the CDA while approving the Revised Layout Plan ignored the hardship, miseries and problems by the residents of the CBR-ECHS by construction of a multistory buildings; that the superior courts always disapproved such type of arbitrary decisions, polluted acts and corrupt practices in reported judgment 2010 CLC 1663 ; that infrastructural facilities of a housing scheme or society like electricity, water, gas roads, sewerage can be overburdened dramatically, when the land reserved for residential purposes is converted to commercial one; that irregular and unlawful conversion of plots creates undue congestion and load on the infrastructure and facilities of the society, which puts the entire community to injury or loss; that alternations in scheme could be made for the good of the people at large, but not for the benefit of an individual for favoring him at the cost of other people; that revised layout plans allowed to be made keeping in view the fundamental rights of the residents of a society; that without consent and willingness of the residents of the society, the approval of Revised Layout Plan is illegal and in violation of the fundamental rights of the residents; that all of sudden residential plots were converted to commercial plots through a Revised Layout Plan by Management of CBR-ECHS without any need or legal justification and has been with mala fide intention.
4. Conversely, the learned counsel for the respondents opposed the contention of the learned counsel for the petitioners and contending that the respondent is acting as regulator under Regulations for Planning and Development of Private Housing/Farm Housing. Apartments/Commercial Schemes/Project in Zones-2, 4 and 5 of Islamabad Capital Territory, 2023 ( "Regulations 2023" ) made under Islamabad Capital Territory (ICT) Zoning Regulations, 1992 ( "Regulations 1992" ); that as per ibid regulations, the CDA approved private schemes under two steps, under first step Layout Plan is approved and after completion of subsequent formalities, No Objection Certificate ( "NOC" ) is issued and thereafter CDA issues completion certificate of development as per approved Layout Plan; that as per Clause 24 of Modalities and Procedure 2020 ( "Regulations 2020" ), the Layout Plan may be reviewed at any time subject to condition that the revision shall confirm the standards of planning parameters viz a viz public amenities and green areas; that as per Regulations 2020 the M/s CBR-ECHS requested CDA for approval of Revised and Extended Layout Plan over an area measuring 1688 Kanals; that Revised Layout Plan was scrutinized by the CDA and same was advertised in National Dailies on 25-01-2023 for calling objections/claims from the Allottees/ Transferees/Members of the CBR-ECHS being effected by the proposed Revised Layout Plan; that the complaints received within due time were resolved/settled and thereafter the Revised Layout Plan was issued vide impugned letter dated 21-03-2025; that the terms and conditions of approval were accepted by the Sponsors through an undertaking dated 03-04-2023; that the petitioner being aggrieved from Revised Layout Plan, approached this Court in Writ Petition No.1716 of 2024 and which was decided by this Court on 31-5-2024 and the CDA in compliance of the above order after providing opportunity of hearing to the petitioners the same were disposed of by the CDA vide letter dated 27-11-2024, therefore, the CDA after fulfilling all the required procedure and formalities provided under the Regulations ibid, the Revised Layout Plan was approved, therefore, the instant petition is not maintainable and liable to be dismissed.
5. Having heard the learned counsel for the parties and perused the record, it appears that the foundational grievance of the petitioners revolves around the alleged illegal revision of the Layout Plan of CBR-ECHS Phase-I, Islamabad, and the consequent conversion of amenity, green, and river plots into commercial and residential use, allegedly in violation of the petitioners' rights and the applicable legal framework. The respondents, on the other hand, maintain that the entire process of revision was carried out in accordance with the governing regulations and due process.
6. At the outset, it must be noted that a housing scheme, once approved by a competent authority, is expected to be developed in accordance with the approved Layout Plan. The residents of such a scheme place legitimate expectations upon the authority and the management that the area demarcated for parks, schools, mosques, green belts, and other public amenities will be preserved and protected. These features are not mere formalities but are fundamental to ensuring the quality of life in a residential locality. Any arbitrary change in the nature and use of such plots amounts to a breach of the doctrine of public trust and may adversely affect the vested rights of the residents.
7. It is an admitted position that the Revised Layout Plan was approved by the CDA vide letter dated 21-03-2025. However, from the record, it is evident that the petitioners had submitted their objections Con 18-03-2023, i.e., prior to such approval. The approval of the Revised Layout Plan without adequately addressing the specific objections of the residents, as well as without conducting any transparent public Shearing process, undermines the procedural fairness required under Articles 4 and 10-A of the Constitution. The concept of due process does not only imply formal compliance but mandates meaningful participation of affected parties in administrative decision-making.
8. Furthermore, the respondents' contention that the Revised Layout Plan was advertised and that objections were called and disposed of does not satisfy the legal requirement of affording a proper hearing, particularly in view of this Court's earlier direction in Writ Petition No. 1716 of 2024, wherein CDA and the management of CBR-ECHS were specifically directed to consider the petitioners' objections and provide a speaking order. The letter dated 27-11-2024, relied upon by the respondents, fails to reflect any cogent reasoning or application of mind vis- -vis the objections raised by the petitioners. The absence of a detailed and reasoned order renders the process mechanical and in contravention of settled principles of natural justice.
9. The judicial precedents referred by the petitioners, including 2019 YLR 1625, underscore the importance of preserving the master plan and protecting public amenities in housing societies. The Supreme Court of Pakistan, as well as the High Courts, have time and again held that arbitrary conversion of amenity plots into commercial use not only violates the rights of residents but also contributes to urban congestion, environmental degradation, and infrastructural collapse. The right to a clean, planned, and peaceful environment has been recognized as an extension of the right to life under Article 9 of the Constitution. Reference is made to case reported 2019 YLR 1625 which reads as under,
"Keeping in view the above background, we are of the view that when any layout plan was prepared, the technical experts of CDA, planning division, architects, town planners, engineers, surveyors, and officials of CDA, they all considered each and every aspect of on ground situation and utilized the maximum land and on the basis of their layout plan, the plots were allotted to individuals, who started raising their construction and after considerable period a community emerged in a particular area who developed their affiliation and affection with the landscape, trees, streams, parks, streets, locations, and the open spaces which were considered in public rights of particular locality and individuals starting establishing a sense of belonging to all such benefits provided in the layout plan. However, when CDA started converting the open spaces of leftover land after the period of 20/30 years, it shows that there is some motive behind the new phase of amendment in the layout plan, although in these cases the CDA has taken the stance that they can use the waste land or undeveloped land as they required being the master regulator but in our Humble view, after the complete development of a sector, when the inhabitants are enjoying the facilities, they have been settled while considering the location and nature of the area, their easement rights come into existence, then the CDA could not take a ICA No.206/2015, etc. Page | 18 somersault and claims that any leftover area of open space or a park could be converted. Such kind of actions are based on mala fide and on personal whims of the individuals, officials and political high ups in order to facilitate and transfer the benefits at the cost of inhabitants of such sectors, which is an illegal exercise. Undoubtedly, the CDA authorities are the best judge for the settlement of land use but this does not mean to give a blanket authority to CDA to convert any land after complete settlement in the layout plan. In terms of Section 11 of the CDA Ordinance, 1960, if any scheme was prepared with future needs and at the time of preparation of layout plan, it has been specified in the layout plan that particular portion of land will be utilized for future development for residential purposes or for any other purpose and same was notified, then individuals have no legal right to challenge in the future times, but if the CDA authorities despite their best planning have not mentioned the specification and future utilization of Unutilized open spaces, then CDA authorities are precluded to create a third party interest in future as the citizens of Pakistan, individuals, who are living in any sector, have already established their affiliation with nature, open spaces, streams, parks, etc. with its infrastructure, which falls within their easement rights and such rights could not be taken away at the whims of CDA authorities."
In Para No.31 of the above referred judgment, this Court held as under,
"We have also gone through different decisions of CDA Board, in which they have permitted revision of layout plan entailing major changes but such kind of changes could only be made after study of environmental impact assessment and objections of the public of the particular area, but the CDA Regulations to that effect require time limitation that any layout plan-should not be amended after a specific timeline from its promulgation. It is not an unfettered powers available to CDA authorities to change any layout plan after two to three decades of its creation as such kind of revision, amendment or rectification in layout plan requires a major policy decision of Federal ICA No.206/2015, etc. Page 19 Government in terms of Sections 11, 14 and 21 of the CDA Ordinance, 1960 and such kind of amendments, revision or rectification in the layout plan which affects the community at large will be considered an interference in the property rights of Individuals which is reciprocal to right to life in terms of Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, the concept of right to life explained in PLD 1994 SC 693 (Shehla Zia v. WAPDA) has to be considered in its wider scope"
In Para No.33 further held as under, "this Court comes to conclusion that any layout plan if already approved by the CDA Authorities under their bye-laws, it could be rectified if any mistake has been observed later on, but this does not mean under the garb of correction of mistake entire parameters would be changed and all those amendments, substitutions were permitted, which were/are in conflict with the principal layout plan at the time of its approval."
The Honorable Supreme Court of Pakistan in the case reported as Mansoor Sharif Hamid and others v. Shafique Rehman and others (2015 SCMR 1172), wherein it has been held as under,
The provision and preservation of suitable infrastructure in the target area of a development scheme as a public interest requirement of the law is particularly evident from the above quoted observations in Ardeshir Cowasjee's case. The infrastructural facilities of a housing scheme or society like electricity, water, gas, roads, sewerage, etc. can be overburdened dramatically when land reserved for residential purposes is converted to commercial use. Equally, public interest suffers through deprivation when amenity plots are converted to other use: The irregular and unlawful conversion of plot usage creates undue congestion and load on the infrastructure and facilities of a housing scheme which puts the entire community to injury and loss. To prevent such congestion is the primary consideration of this Court in ordering the strict enforcement of building and land usage laws."
10. It is also pertinent to note that under the Model Bye Laws CBR Employees Cooperative Housing Society (Registered) Islamabad, any major decision, including revision of the Layout Plan, requires prior discussion and approval in the Annual General Meeting ( "AGM" ) of the Society. The said requirement is not a mere formality but a mandatory precondition aimed at ensuring participatory governance and safeguarding the interests of the members of the Society. The Revised Layout Plan in question was approved without placing the matter before the AGM, thereby violating the procedural requirements set forth in the bye-laws binding upon both the management of the Society and CDA. The failure to convene or consult the general body prior to altering the scheme structure not only contravenes the internal regulatory framework of the Society but also invalidates the approval process, rendering the revision tainted with procedural impropriety and lacking legal sanctity.
11. The record further reveals that the impugned Revised Layout Plan includes the conversion of land designated as green areas and parks into high-rise commercial structures. Such conversions, carried out without the consent of affected residents, violate not only the CDA Ordinance, 1960 and Regulations of 1992 and 2023, but also the equitable doctrine that no one can be allowed to enrich themselves at the cost of public welfare.
12. While the CDA has been vested with the power to approve revised layout plans, such power is not unfettered or absolute. It is to be exercised in conformity with principles of transparency, fairness, public interest, and legal mandates. The failure to engage with the community, respond to valid concerns, and disclose environmental or infrastructural feasibility of the revised plan leads to a clear abuse of discretion.
13. The Court is also mindful of the growing trend of commercialization of residential housing schemes, often at the expense of community well-being. Such tendencies must be curbed through strict adherence to planning laws, zoning regulations, and judicial oversight. Urban planning is not a matter of private convenience but of public accountability.
14. In view of the foregoing discussion, this Court is of the considered opinion that the impugned letter dated 27-11-2024 issued by the CDA whereby the objections of the petitioners were dismissed in a cursory manner, as well as the subsequent approval of the Revised Layout Plan dated 21-03-2025, suffer from material irregularity, non-compliance of statutory provisions, violation of petitioners' rights, and disregard for the settled law. The same cannot be sustained.
15. In view of above, the instant Writ Petition No.4043 of 2024 is allowed. The impugned Revised Layout Plan dated 21-03-2025, passed by CDA is declared to be illegal, without lawful authority and of no legal effect, and is hereby set aside. The respondents are directed to restore the layout plan of CBR-ECHS Phase-I to its original form as approved on 24-02-2007. The CDA is further directed to ensure that no amenity plots, green areas or public utility spaces are converted to residential or commercial usage in violation of applicable laws and regulations, and that the rights of the residents are safeguarded in future with no order as to costs.
UN/154/Isl. Petition allowed.