Taj Muhammad Abbasi VS CDA etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Civil Revision No. 100 of 2024

Taj Muhammad Abbasi and 2 others Vs.

Capital Development Authority, etc

Petitioners by : Raja Muhammad Aleem Khan Abbasi, Advocate.

Respondents by : Mr. Shaharyar Tariq and Mr. Taimoor Hussain, Advocates

Date of Hearing : 05-10-2026.

SHAHRUKH ARJUMAND, J.-

Through instant Civil Revision, Petitioners have challenged Judgment and Decree dated 19.02.2024 (“Impugned Judgment”) passed by learned Additional District Judge (West), Islamabad, (“Appellate Court”) whereby appeal filed by Respondents was allowed and Judgment and Decree dated 12.10.2023 passed by learned Civil Judge (West), Islamabad, (“Trial Court”) in favour of the Petitioners was set aside and their suit for permanent injunction was dismissed.

2.Brief facts, as per record, are that Petitioners along with their co- owner instituted a suit for permanent injunction in respect of commercial property situated at Markaz Shalimar-6, Block 5-B, Islamabad. The property was originally allotted in 1970 as a commercial plot and was subsequently transferred to the legal heirs of the original allottee. The Petitioners purchased the property in 2013

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after completing the requisite formalities before the CDA and thereafter carried on their business therein. The dispute arose when the CDA issued show-cause notices alleging non-conforming use of the property. The Petitioners maintained that the property was a commercial plot and that its trade/business could be changed subject to approval of the competent authority under the applicable CDA rules and regulations. The petitioners, therefore, filed a suit for permanent injunction against the respondents. The suit was contested by respondents by filing written statement. The learned Trial Court framed necessary issues and after recording evidence, decreed the suit in favour of Petitioners vide Judgment and Decree dated 12.10.2023. However, in appeal, the learned Additional District Judge (West), Islamabad, reversed the said judgment and dismissed the suit vide impugned Judgment and Decree dated 19.02.2024.

3.Learned counsel for the Petitioners contended that learned Appellate Court has misread and misconstrued the oral and documentary evidence, particularly the original allotment letter and the applicable CDA Regulations, which establish that the suit property was a commercial plot and not a Community Building and Facilities Plot. He further contended that the learned Trial Court had rightly appreciated the evidence and held that the Petitioners could seek change of trade/business subject to approval of the competent authority, whereas the learned Appellate Court erroneously reversed the well- reasoned findings of the Trial Court. He submitted that the impugned judgment is therefore the result of misreading and non-reading of material evidence and warrants interference in revisional jurisdiction. Hence, this revision petition. He relied upon Municipal Committee, Chakwal v. Ch. Fateh Khan and others (2006 SCMR 688), Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 Supreme Court 715), Ahmad Nawaz Khan v.

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Muhammad Jaffar Khan and others (2010 SCMR 984), Muhammad Younas Amin through General Attorney v. Abdul Majeed through L.Rs. and others (2020 MLD 562), Mst. Zahida Begum v. Ashfaq Ahmed and others PLD 2020 Lahore 684), Muhammad Farooq and others v. Javed Khan and others (PLD 2022 Supreme Court 73), Shafaqat Ali v. Malik Muhammad Ismail and another (2007 YLR 2311), Mst. Ameer Begum v. Muhammad Naeem Khan and another (PLD 2000 Supreme Court 839), Mian Muhammad Akbar Dhareeja v. Muhammad Ramzan Khokhar and others (2021 CLC 1132) and Karim Bakhsh through L.Rs and others v. Jindwaddda Shah and others (2005

SCMR 1518).

4.Conversely, learned counsel for Respondents opposed instant Civil Revision and submitted that impugned Judgment is in accordance with law and suffer from no illegality or jurisdictional defect warranting interference. He prayed for dismissal of this revision petition.

5.I have heard the learned counsels for the parties and perused the available record.

6.Learned Civil Court decreed the suit of petitioners primarily on the grounds that the suit property falls within the ambit of commercial property as defined under the bylaws of the CDA and the only witness appearing on behalf of the CDA also admitted that the nature of the suit property is commercial.

7.On the other hand, learned Appellate Court dismissed the suit of the petitioners on the ground that despite the nature of the property being commercial, the terms and conditions of its allotment letter does not permit change of trade and the suit property ought to be used in accordance with terms and conditions stipulated in the allotment letter. Learned Appellate Court further observed that the suit property was

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meant to be used for a medical clinic and the same falls within the ambit of community buildings and facilities plots, the trade of which cannot be changed into commercial. Although DW-1 admitted in his cross-examination that in accordance with para No. 1 of Exhibit P1, the nature of the suit plot has been mentioned as commercial. However, the stance of the CDA throughout the proceedings of the suit remained that the suit plot falls within the ambit of community and facilitation and thus its trade cannot be changed. In this regard, PWs have admitted that they came to know about the allotment of the plot for the purpose of clinic after service of notice by the CDA. PWs also admitted that the suit plot is being used for other purposes, including a hotel, shops and banks. Thus, PWs categorically admitted that the suit plot is not being used for the clinic in its entirety. Allotment letter of the suit plot has been placed on the record and in accordance with clause 7 of the said allotment letter, the ground floor is meant for a clinic, first floor for offices and second floor for residential purposes. Establishment of banks, hotels/restaurants, as well as shops, has not been mentioned in the allotment letter of the suit plot, meaning thereby that the suit plot is admittedly being used for other purposes than for which the same was allotted by the respondents. Issuance of several notices as well as show cause notices has also been admitted by PWs. Learned courts below proceeded to define as to whether the suit plot falls within the ambit of community and facilitation. In this regard, the learned courts tried to differentiate between a clinic and a hospital. Learned Civil Court was of the view that clinic is different from a hospital, whereas, learned Appellate Court proceeded to observe that both fall within the same category of community facilities. However, in accordance with rulings of superior courts, hospitals and clinics have been differentiated. It was held in the case of Punjab Healthcare Commission v Mushtaq Ahmad Chaudhary and others that:

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“Subsection (2) of Section 4 of the Health Act provides that the Commission has all the powers it requires in furtherance of this function. Section 2 (xv) defines healthcare establishment to mean a hospital, diagnostic centre, medical clinics, nursing home, maternity home, dental clinic, homeopathy clinic, tibb clinic, acupuncture, physiotherapy clinic or any other premises or conveyance. Section 2 (xvi) defines healthcare services to mean services provided for diagnosis, treatment or care of persons suffering from any physical or mental disease, injury or disability including procedures that are similar to forms of medical, dental or surgical care but are not provided in connection with a medical condition and includes any other service notified by the Government. Section 2 (xvii) provides for healthcare service provider to mean an owner, manager or incharge of a healthcare establishment and includes a person registered by the Pakistan Medical and Dental Council ("PMDC"), Council for Tibb, Council for Homeopathy or Nursing Council. Section 13 of the Health Act calls for registration of the healthcare service provider and Section 14 calls for licensing of a healthcare establishment. Section 19 of the Health Act provides that a healthcare service provider can be guilty of medical negligence if it does not have the required human resource and equipment, which it professes to have or if its employees do not have reasonable competency or skill that they possess. Section 20 of the Health Act requires the Commission to set standards for healthcare services and under Chapter-V, the Commission can inspect any healthcare establishment as per the procedure laid down.

After defining a health care establishment, it was also held by the Court that:

..........Hence the 1962 Ordinance clearly does not regulate clinics, dispensaries and diagnostic centres or testing procedures or any other related area which

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forms part of the ambit of healthcare services as defined under the Health Act.......”1

8.While drawing a distinction between clinics and hospitals, it was also held in the case of Christian Hospital through its Manager v. State of U.P. and another that:

“From the aforesaid dictionary meanings, it can be safely culled out that a clinic is normally connected with a hospital or is a department of a hospital whereas, a hospital is an institution for the reception and care of the sick which also requires nursing. A clinic, normally takes a concept of an infirmity or dispensary but, in no manner, could a clinic be treated a hospital. A clinic could be treated a hospital provided its extent of activity takes it into the category of a hospital.2”

9.In accordance with above-mentioned principles laid down by the courts, it has been made clear that the clinic is different from a hospital and thus, if the respondents are of the view that hospitals fall within the ambit of facilitation and community, the clinic cannot be meant to be so. However, despite the nature of the suit plot being commercial, it is evident from the evidence of the parties that the same is being used for other purposes than for which the same was allotted. Filing of application for change of trade by the petitioners is also an evidence that the suit plot is being used for the purposes other than the same was allotted. Though the said fact was also admitted by learned Civil Court by holding that the petitioners cannot be permitted to use the suit plot for ongoing purposes and in this regard, they have to adopt the procedure and the learned Civil Court also proceeded to provide a schedule in this regard, but in my view, any direction for change of trade cannot be passed against the respondents, particularly in a case where the petitioners have themselves violated the terms and conditions Punjab Healthcare Commission v Mushtaq Ahmad Chaudhary and others, PLD 2018 Lahore 762.

Christian Hospital through its Manager v. State of U.P. and another, 2007 (4) AWC 3935.

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of the allotment letter and the suit plot is being used other than for which the same was allotted. Any direction to the respondents with regard to change of trade at this stage would mean to give a legal effect to the illegality already committed by the petitioners by using the suit plot for the purposes other than for which the same was allotted and the same shall also amount to legalize the non-conforming use of the suit plot, which is not warranted under the law.

10.Classification of plots has also been provided in Islamabad Land Disposal Regulations, 2005 and according to Clause 3 of the same, residential, commercial and business plots, as well as community buildings and facilities plots, have been defined in the following manner:- “(2) Commercial and Business Plots. - Plots for any kind of commercial activity having profit as a primary aim, and include plots earmarked for shops, showrooms, markets, departmental stores, hotels, motels, guest houses, marriage halls, restaurants, cafes, banks, insurance companies, petrol/CNG filling and/or service stations, (sites for multi-storeyed building meant for shops, offices and/or residential apartments.) sites for multi- storeyed parking, and offices connected with industrial and commercial enterprises.

(3)Community Buildings and Facilities Plots. These include plots for religious and educational institutions, hospitals, dispensaries, maternity homes, libraries, art-galleries, museums, cinemas, theatres, public services, amenity buildings, police- stations, gymnasiums, amusement parks, transport terminus, etc.”

11.The contents of above-mentioned clauses of Islamabad Land Disposal Regulations, 2005 clearly reflect that the plots allotted for hospitals fall within the domain of community buildings and facilities and any other plots meant for offices or residential apartments do not fall in this category, rather offices or residential apartments fall within

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the domain of commercial and business plots. Since the contents of allotment letter clearly reflect that the same was allotted for the purpose of clinic, offices and residences, therefore, the nature of suit plot being commercial and business cannot be disputed.

12.Although contents of allotment letter, admission of DW-1 and difference between a clinic and a hospital make it clear that the suit plot does not fall within the ambit of community and facilitation in respect of which trade of change is not allowed under the bye-laws of the CDA, but any direction with regard to change of trade at this stage would contribute towards the illegality committed by the petitioners in respect of earlier non-conforming use of the suit plot. Moreover, the respondents should remain at liberty to assess each and every case on its own merits regarding change of trade, taking into consideration the prevailing circumstances, surroundings of the suit property, as well as any nuisance likely to be caused to the general public. The Constitution of Pakistan, though permits freedom of trade, business or profession, but the same is subject to qualifications prescribed by law and subject to respecting the rights of others. Therefore, the petitioners could exercise their right to freedom of trade, business or profession subject to required qualification i.e. bye-laws of the CDA, but they proceeded to use the premises without such compliance rather in violation of terms and conditions of allotment letter. Thus, it appears that while endorsing their act of non-conforming use and further directing the respondents to change the trade of the suit plot, the learned Civil Court committed illegality as no such direction could be passed. However, the petitioners are at liberty to file any application for change of trade and any right accruing thereafter could justify the use of the suit plot for the purposes for which it is currently being used.

13.In view of the foregoing discussion, the learned Trial Court, fell in error in issuing a direction for change of trade in favour of

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Petitioners. The learned Appellate Court, having dismissed the suit, committed no illegality warranting interference in revisional jurisdiction. Consequently, the instant Civil Revision is dismissed.

(SHAHRUKH ARJUMAND)

JUDGE

Approved for reporting Farid ur Rehman /*