Legal Remedies for Sealing of Premises in PakistanLegal Remedies for Sealing of Premises in Pakistan

This Client Information Article is aimed at discussing successful remedies for owners of commercial and residential property,  having their premises sealed through government action.In analysing the cases concerning the sealing of premises, the primary legal remedies and factors that contribute to the success or failure of such actions emerge from the specific circumstances and statutory frameworks involved. Here’s a comprehensive legal note on the subject.We have reviewed the cases between different years and have done an analysis of  relevant remedies depending on the statutory reason behind the sealing of premises

Summary of Legal Remedies for Unlawful Sealing

  • Application for Relief: The aggrieved party can apply to the High Court for relief through a writ petition under Article 199 of the Constitution of Pakistan, claiming a violation of fundamental rights.
  • Principle of Fair Hearing: Invoking the principle of “audi alteram partem,” parties can argue that they were not given a fair hearing or notice before the sealing, which is a fundamental right under the principles of natural justice.
  • Jurisdictional Challenge: A challenge can be raised against the authority of the entity that ordered the sealing, questioning whether it had the jurisdiction to take such action.
  • Quashing Proceedings: The High Court has the power to quash FIRs and any proceedings if they are initiated without lawful authority, as seen in the cases above.

Factors Contributing to Success of Actions:

  • Jurisdiction and Authority: The legitimate authority of the party sealing the premises is crucial. In 2001 PCRLJ 1039, the case was quashed because the person who lodged the FIR was not authorised, demonstrating the importance of proper jurisdiction.
  • Adherence to Due Process: Ensuring due process, as highlighted in 2000 SCMR 1748, is essential. Sealing without proper notice or without following statutory requirements can lead to the action being overturned.
  • Validity of Title and Compliance: As seen in 2001 MLD 1635, occupants must have a valid title and comply with building regulations. Bona fide purchasers must follow all requirements, including obtaining occupancy certificates.
  • Good Faith and Legitimate Purpose: Actions taken in good faith and for a legitimate purpose, such as enforcing building codes or preventing breaches of the peace, are more likely to be upheld, as noted in 1999 PTD 1069 and 2000 PCRLJ 1180.

Factors Leading to Unsuccessful Actions:

  • Violation of Fundamental Rights: Any sealing action that infringes upon fundamental rights, such as the right to conduct business under Article 18 of the Constitution, as seen in 2001 PCRLJ 1039, can be struck down.
  • Mala Fides or Bad Faith: Actions taken with malicious intent or bad faith, as evidenced by 2001 PCRLJ 1039 where a five-year-old child was accused, are likely to be quashed.
  • Lack of Proper Notice: The absence of proper notice to affected parties can render the sealing action invalid, as discussed in 2000 SCMR 1748.
  • Premature and Misconceived Petitions: In cases where petitions are filed without exhausting the proper channels, such as in 2000 PCRLJ 1180, the actions are deemed premature and are dismissed.

Factors contributing to successful actions against sealing include:

  • Absence of Legal Authority: The lack of explicit legal provisions empowering the authority to seal premises is a strong basis for challenging the action.
  • Non-Involvement of Property Owner: If the property owner is not directly involved in the illegal activity, this factor weighs in favour of unsealing.
  • Procedural Irregularities: Failure to follow due process and procedural requirements can render the sealing action unlawful.
  • Discriminatory Action: Any indication that the sealing action was taken in a discriminatory manner can be grounds for relief.

Legal Framework and Remedies in Sealing of Premises

The sealing of premises typically occurs in the context of property disputes, enforcement of tenancy agreements, or as a result of legal proceedings.

The sealing of premises is an action typically taken by authorities to enforce compliance with statutory provisions or court orders. The Pakistan Penal Code, Sindh Buildings Control Ordinance 1979, Criminal Procedure Code (Cr.P.C) (Section 145 of the Cr.P.C), and constitutional provisions, especially Article 199 of the Constitution of Pakistan, are frequently invoked in such cases.In Islamabad a common legal matter is the sealing of premises for non-conforming use under the CDA Ordinance 1960 , dealt with later in this article.

In the citations discussed below, the courts have addressed the exercise of powers by public authorities to seal premises. Such powers are typically derived from legislation like the Punjab Local Government Act 2019, Punjab Food Authority Act 2011, Civil Defence (Special Powers) Rules 1951, Federal Excise Act 2005, and Sales Tax Act 1990. The authorities empowered by these acts can, in certain circumstances, seal premises to enforce compliance with the law.

Constitutional Safeguards Against Arbitrary Sealing:

The cases reflect a common theme where the actions of sealing premises have been challenged on the grounds of fundamental rights enshrined in the Constitution of Pakistan. Articles 4 (Right to be dealt with in accordance with law), 9 (Security of person), 18 (Freedom of trade, business or profession), 23 (Provision as to property), and 25 (Equality of citizens) are often cited in these challenges. The High Courts and the Supreme Court have reiterated that any action to seal premises must be in strict conformity with the law, proportional, non-discriminatory, and should not infringe upon the fundamental rights of citizens.

The majority of these cases involve actions connected to local zoning laws, building control regulations, and constitutional provisions. The laws typically cited in such cases include:

  • Local government acts (e.g., Punjab Local Government Act, 2019).
  • Sector zoning and building control regulations (e.g., Islamabad Sector Zoning Building Regulation 2005).
  • Constitutional articles pertaining to fundamental rights (e.g., Articles 4, 9, 18, 23, and 24 of the Constitution of Pakistan).

The remedy in the event of a premises being sealed unjustly is to seek relief through the courts, usually by filing a petition for the restoration of possession or challenging the sealing order.

Factors Influencing Success or Failure of Such Actions Based on Case Law 

The success or failure of actions to seal or unseal premises can be influenced by various factors, such as the adequacy of notice provided to the tenant or occupant, the adherence to principles of natural justice, the existence of a valid legal ground for sealing, and the availability of sufficient evidence to support the action.

(1) Adequacy of Notice: As seen in the case of Zareef Khan v. Administrator, Karachi Circle, Auqaf Department, Government of Sindh (1991 MLD 2323), the authority’s action was upheld because they provided adequate notice to the tenant, which was evidenced by the tenant’s signature on the notice. This underscores the importance of proper notice as a precondition for lawful possession taking.

(2) Adherence to Principles of Natural Justice: The same case also highlights that respecting the principles of natural justice, such as giving the occupant a chance to respond, is crucial. The court found no violation of these principles as the tenant had been duly notified.

(3) Existence of a Valid Legal Ground: The legal grounds for sealing premises must be solid and defensible. For instance, under the Sindh Waqf Properties Ordinance 1979 and Specific Relief Act 1877, certain actions like forcible dispossession can be remedied by the sealing of premises to prevent unlawful occupation.

(4) Sufficiency of Evidence: In Najmuddin v. The State (1990 PCRLJ 980), the inquiry officer’s findings, based on sufficient documentary evidence, were critical in dismissing a revision petition challenging the sealing. Hence, the presence of conclusive evidence is key to justifying the sealing or unsealing of premises.

(5) Emergency Relief and Balance of Convenience: In the case of Hamida Mullick v. Mushfiq Ali Zaidi (1990 MLD 325), the court granted the sealing of premises as an emergency relief due to the balance of convenience being in favour of the plaintiff, who faced irreparable loss otherwise.

(6) 1993 CLC 812 Lahore-High-Court-Lahore:

Issue: The sealing of premises without material evidence.

Legal Principle: Section 44-E of the Co-Operative Societies Act, 1925 read with fundamental rights under the Constitution.

Holding: Sealing was declared without lawful authority due to a lack of evidence connecting the premises with the defaulting society.

Remedy: The court can declare such sealing as without lawful authority and order de-sealing.

(7) 2015 PTD 558 Inland Revenue Appellate Tribunal of Pakistan:

Issue: Sealing of premises for tax recovery without due notice.

Legal Principle: Section 48(1)(d) of the Sales Tax Act, 1990 and Rule 72(1) of the Sales Tax Rules, 2006.

Holding: The sealing order was illegal and void as it was passed without lawful authority and without issuing a Show Cause Notice.

Remedy: The tribunal granted a stay against the sealing order and restricted the department from taking coercive measures.

(8) 2014 CLC 1259 Lahore-High-Court-Lahore:

Issue: Sealing of premises without prior notice and hearing.

Legal Principle: Section 146-D of Punjab Local Government Ordinance, 2001, read with fundamental rights under Articles 4, 9, 23, and 24 of the Constitution.

Holding: The discretionary power to seal premises must be exercised justly, fairly, and only if there is a serious threat to public health or safety.

Remedy: The court can order the de-sealing of premises if the sealing was without due process and a fair hearing.

(9) Inherent Jurisdiction (2013 PCrLJ 1575 KARACHI-HIGH-COURT-SINDH): The inherent jurisdiction of the High Court under S.561-A of the Cr.P.C. is to be invoked sparingly and only in exceptional circumstances. The application for de-sealing, if delayed or if alternative remedies have not been exhausted, or are still pending, may not be entertained under this jurisdiction. Laches, or undue delay, may disentitle the applicant from relief.

(10) Environmental Concerns (2011 CLD 1280 ENVIRONMENTAL-TRIBUNAL-LAHORE): The Environmental Tribunal highlighted the importance of compliance with environmental protection orders. If the premises are sealed due to environmental violations, the de-sealing could be considered only after thorough adjudication at the final hearing. Immediate de-sealing may not be permitted if it may cause adverse environmental effects and irreparable loss to the public.

(11) Public Health and Safety (2010 YLR 1369 LAHORE-HIGH-COURT-LAHORE): Premises sealed due to the production or sale of materials injurious to public health may lead to the upholding of sealing orders, especially if the conduct of the proprietor has been unlawful or if they have previously violated the sealing order.

(12) Property Disputes (2007 SCMR 1953 SUPREME-COURT): In cases of property disputes, actual possession is a key factor. A Magistrate’s decision to seal or de-seal premises must be based on who is in actual possession at the time of the dispute. Higher courts will intervene if there are concurrent findings of possession that are not supported by direct and positive evidence.

(13) 2017 PTD 1962 Lahore High Court Lahore

In the case of Mehar Pervaiz Akhtar v. Director General Excise and Taxation, Lahore, the petitioner challenged the sealing of his premises and the demand notice for property tax. The crux of the issue was the non-communication of the assessment order and the reasons for the rejection of the objections raised by the petitioner, which are necessary under the Punjab Urban Immovable Property Tax Rules, 1958. The Lahore High Court held that the practice of not communicating reasons was unacceptable and directed a revision of the rules to ensure communication of reasons and assessment orders to the taxpayers. The court further set aside the sealing of the property due to the non-observance of the mandatory provisions.

(14) 2017 CLD 772 Lahore High Court Lahore

In Muhammad Ayaz v. Government of Punjab, the petitioner’s premises were sealed for failing to comply with an Environment Protection Order under the Punjab Environmental Protection Act, 1997. The issue revolved around the petitioner’s right to a fair trial and whether the Environmental Protection Agency (EPA) had exceeded its powers. The court found no violation of Article 10A of the Constitution as immediate action was necessary to address the public safety and environmental concerns. The EPA was empowered to enforce its orders to prevent imminent danger to the public and the environment.

(15) 2017 PLD 545 Lahore High Court Lahore

In the matter involving Lung Fung Chinese Restaurant v. Punjab Food Authority, the question was whether the Punjab Food Authority and its officers followed the correct procedures under the Punjab Food Authority Act, 2011, particularly regarding the issuance and execution of improvement notices.

Remedies and Success Factors:

Observance of Legal Procedures: The exercise of powers by the Food Safety Officers must be in strict compliance with the statutory procedures.

Precautionary Principle: In food safety laws, the precautionary principle ensures that immediate actions can be taken to safeguard public health.

(16) 2016 CLC 1095: Lahore High Court

In the case of Mega Steel Mills Private Limited v. Government of Punjab, the Lahore High Court addressed the sealing of premises on environmental protection grounds. The appellant’s factory was sealed by the Environmental Protection Department without providing an opportunity for a hearing, violating the principle of “audi alteram partem” – the right to a fair hearing. The Court held that the authorities exceeded their powers under the Pakistan Environmental Protection Act, 1997, and the relevant regulations. The Court’s decision to unseal the premises was predicated on the principles of natural justice, underscoring that fairness must be implied in all administrative actions, especially those with severe consequences.

(17) 2016 PTD 365: Karachi High Court

The Karachi High Court’s ruling in Zaheer Ahmed v. Directorate General of Intelligence highlighted the importance of jurisdiction and due process in the sealing of premises for excise duty violations. The petitioner was not a registered person under the relevant tax laws and was not assessed to pay duty, yet his premises were sealed without a show-cause notice or a chance to explain his position. The Court quashed the FIR and subsequent proceedings, emphasizing the abuse of process and the lack of jurisdiction by the authorities.

(18) 2015 MLD 1745: Lahore High Court

In Muhammad Tufail v. Administrator, TMA, Murree, the issue of premises sealing was linked to local government regulations on sanitation. The Lahore High Court found that the Tehsil Municipal Administration had no statutory power to seal the premises as a punitive or remedial measure for sanitation violations. The sealing action was deemed unlawful as it was not preceded by a notice, which is a mandatory requirement before taking such steps.

(19) 2015 PTD 349: Karachi High Court

This case, again involving Zaheer Ahmed, reiterates the Karachi High Court’s stance on the necessity of authority and due process. Similar to the 2016 PTD 365 ruling, the Court held that sealing premises without proper jurisdiction and without following the due process of law, such as issuing a show-cause notice, is unlawful.

(20) 2016 CLC 1095 Lahore High Court

In the case of Mega Steel Mills Private Limited vs. Government of Punjab (2016 CLC 1095 Lahore), the Lahore High Court addressed the issue of sealing a property under the Pakistan Environmental Protection Act, 1997. The Court underscored the importance of the principle of audi alteram partem (the right to a fair hearing) and held that the authorities were not empowered under the Act or the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, to seal the property without providing such a hearing. The Court set aside the sealing order, allowing the appellant’s appeal.

(21) 2023 CLC 304 Islamabad

The cases involving Mrs. Shamshad Butt vs. Deputy Commissioner C.D.A., Islamabad (2023 CLC 304) deal with the non-conforming use of a building and the sealing procedures under the Islamabad Sector Zoning Building Regulation 2005. The High Court found that the Capital Development Authority (CDA) had violated the principles of natural justice and fairness by imposing penalties without evidence and not following due process, including the failure to give notice or a proper hearing. The Court also set aside the orders and remanded the matter for a decision afresh.

(22) 2015 MLD 1745 Lahore-High-Court-Lahore

In the case of Muhammad Tufail v. Administrator, TMA, Murree, the court held that a notice is a sine qua non (an essential condition) for any action initiated by the municipal authorities. The local government was found to lack the authority to seal premises as a punitive or remedial step under the Punjab Local Government Ordinance, 2001. Without a notice served to the petitioner, the sealing was deemed without lawful authority, making the action invalid. Takeaway: The service of notice is critical, and the lack of it renders the sealing of premises unlawful.

(23) 2015 PTD 349 Karachi-High-Court-Sindh

In Zaheer Ahmed v. Directorate General of Intelligence and Investigation-IR, the absence of a show cause notice and the failure to provide an opportunity to the petitioner to explain their position were pivotal. The authorities’ actions were deemed without jurisdiction, leading to the quashing of the FIR and subsequent proceedings. Takeaway: Jurisdiction and procedural fairness are vital, and actions without jurisdiction or due process are liable to be quashed.

(24) 2023 CLD 261 Lahore-High-Court-Lahore

Nemat Ullah Khan v. Province of Punjab involved the imposition of penalties and proposed sealing for using outdated technology in brick kilns. The court emphasized compliance with the provisions of the Punjab Environmental Protection Act 1997. The court’s direction was for the petitioners to be provided an opportunity to be heard, and any orders should be passed in accordance with Section 16(1) of the Act. Takeaway: Compliance with environmental standards is crucial, and opportunities for a hearing must be given before sealing.

(25) 2023 CLC 1055 Lahore-High-Court-Lahore

Wajid Ali v. Judicial Magistrate, Okara questioned the constitutionality of the powers of the Food Safety Officer to seal premises under the Punjab Food Authority Act, 2011. The court noted the absence of a legal remedy for de-sealing, thus raising concerns about the constitutionality and legality of such actions.Takeaway: Legal remedies should be available following the sealing of premises, and the absence of such remedies may render the action unconstitutional.

(26) 2023 CLC 304 Islamabad (Mrs. Shamshad Butt vs. Deputy Commissioner C.D.A., Islamabad)
This case underlines the regulation 2.17.5 of Islamabad Sector Zoning Building Regulation 2005, which allows the sealing of a building under non-conforming use after a notice period. However, the case of Mrs. Shamshad Butt raises issues of fairness and due process where the petitioner, being the owner of the building, faced penalties for actions (non-conforming use) carried out by her lessee. The High Court set aside the orders of the authorities on grounds of lack of evidence, violation of principles of natural justice, and failure to follow due process, thereby allowing the constitutional petition.

(27) 2022 CLC 1261 Lahore-High-Court-Lahore (Malik Gull Zaman vs. Deputy Commissioner)
This case references Section 284 of the Punjab Local Government Act, 2019, and emphasizes the fundamental rights enshrined in the Constitution of Pakistan, such as the right to property and the right to conduct lawful business. Sealing premises without satisfying the conditions of due process infringes upon these rights.

(28)Constitutional and Statutory Limits on Sealing Powers

In Lung Fung Chinese Restaurant v. Punjab Food Authority, the Supreme Court declared the Food Safety Officer’s power to seal any premises under S.13(1)(c) of the Punjab Food Authority Act 2011 as unconstitutional. The Court found this power to be discriminatory and against the fundamental rights enshrined in Arts. 18, 23, & 25 of the Constitution.

(29) Procedural Fairness and Legal Justification

In Muhammad Afzal v. Civil Defence Officer, Jhelum, the Lahore High Court underscored the absence of legal provisions that allowed the Civil Defence Officer to seal the premises. The Court observed that the officer’s actions could have been motivated by retaliation, emphasizing the need for a legal basis and procedural fairness in such administrative actions.

(30) Property Rights and Due Process

In Ahmad Shah v. Agriculture Inspector SMS Plant Production Department, the Peshawar High Court highlighted the property rights of the individual whose premises had been sealed without direct involvement in the illicit activity. The Court ruled that indefinite sealing without legal authority and without the involvement of the property owner in the offence was unjustified.

(31) Regulation-Specific Procedures

The cases involving Mrs. Shamshad Butt and the Deputy Commissioner CDA reflect the enforcement of zoning regulations. The Islamabad High Court examined the specific procedure outlined in the Islamabad Sector Zoning Building Regulation 2005 for sealing premises due to non-conforming use. The Court emphasized the necessity of following the due procedure, including adequate notice and the involvement of the appropriate authority and a magistrate.

(32) An Analysis of Cases of Sealing under Section 145 of the Cr.P.C,

(1) Karachi High Court Case (1987 PCRLJ 2274)

This case illustrates the application of Section 145 of the Criminal Procedure Code (Cr.P.C) in disputes over possession. The Magistrate’s order for sealing the premises was upheld as there were no legal flaws found in the order, demonstrating the principle that High Courts will not interfere with lower courts’ decisions unless there is a significant legal error.

(2) Lahore High Court Case (1985 CLC 2359)

The authorities sealed a property to avert a law and order situation. The High Court dismissed the writ petition on the basis that the petitioners failed to act upon the sealing promptly and did not seek interim relief during the civil suit. The case underscores the principle that writ jurisdiction is not the appropriate forum for matters requiring detailed factual inquiry.

(3) Karachi High Court Case (1985 PCRLJ 1615)

Here, a tenant’s property was sealed amidst a pending criminal case. The High Court’s decision revolved around Section 145 of the Cr.P.C, which is concerned with the power to issue orders in cases of dispute over property.

(4) Remedies and Factors Influencing Success

The remedy for the sealing of premises typically involves legal proceedings where the affected party must demonstrate:

Legal entitlement to the property.

Compliance with relevant procedures and laws.

That the sealing authority acted beyond its legal mandate or without due process.

(5) Success in such actions often depends on:

Promptness in seeking redress: Delay can harm credibility and lead to the assumption of acquiescence.

Proper adherence to procedural requirements: Non-compliance can result in dismissal or unfavorable decisions.

The strength of the factual basis: Strong evidence supporting the claim of unlawful sealing is essential.

Jurisdictional appropriateness: Choosing the correct legal forum (civil or criminal courts, administrative tribunals) is critical.

Key takeaways from case law 

The sealing of premises is a significant legal action that affects property rights. The cases show that the courts take a cautious approach, ensuring that any de-sealing does not adversely affect public interest, and that the applicants have followed due process. Applicants seeking de-sealing must act promptly and diligently, must not be in violation of other legal proceedings, and must provide clear and compelling evidence to support their case.

  • Immediacy of Action: In cases of environmental harm, the immediacy of action to prevent irreparable damage is a significant factor in the success of sealing premises.
  • Compliance with Orders: The ability of the EPA to take precautionary measures and enforce compliance with environmental standards is crucial.
  • Adherence to Procedure: A common thread in these cases is the emphasis on the authorities’ adherence to the legal and procedural requirements before taking drastic actions such as sealing premises.Ensuring that all legal procedures, including the service of notice and respecting the right to a fair hearing, are followed is fundamental.
  • Legal grounds for sealing must be based on robust evidence and aligned with statutory provisions.
  • Emergency relief in the form of sealing can be granted to prevent irreparable damage, but this must be weighed against the balance of convenience.
  • Each case must be evaluated on its own facts and merits, and the courts generally look favourably upon actions that are fair, just, and in accordance with the law.
  • Exhaustion of Remedies: Before approaching a higher court for relief, all lower remedies must be exhausted. If an application is made to the High Court without availing of all possible lower forum remedies, it is likely to be dismissed.
  • Timeliness: Applications for de-sealing must be made promptly. Delay can weaken the case and may be interpreted as acquiescence to the sealing.
  • Compliance with Orders: Compliance with any existing orders or directions is crucial. Disregard for such orders can significantly damage the credibility of the applicant and the likelihood of a successful action.
  • Substantive Evidence: Providing direct and substantial evidence of the reasons for de-sealing, and evidence to counter the reasons for sealing, is essential.
  • Balancing Interests: The courts will balance the interests of the property owner against public interest. In the event that the public interest outweighs the private interest, the courts may favor maintaining the sealing.
  • Right to Fair Trial: The right to a fair trial and due process is paramount and must be balanced with public interest considerations.
  • Communication and Right to Appeal: Effective communication of decisions and the provision of a right to appeal against such decisions are critical for ensuring lawful enforcement actions.
  • Immediate Enforcement Actions: In cases of immediate harm to public safety, health, or the environment, authorities have broader powers to take necessary actions, including sealing premises.
  • Principle of Natural Justice: The cornerstone for a successful challenge to the sealing of premises is the principle of natural justice, particularly the right to a fair hearing before any punitive action is taken.
  • Statutory and Regulatory Compliance: The authority’s strict adherence to the procedures and powers conferred by relevant statutes and regulations is critical. Any deviation can render the action ultra vires (beyond their powers) and subject to being overturned by the courts.
  • Evidence and Record Keeping: Authorities must base their decisions on clear and concrete evidence. Arbitrary actions without a solid evidentiary basis are likely to be successfully challenged.
  • Notices and Hearings: Providing adequate notice and a meaningful opportunity to be heard are procedural safeguards that must be observed to withstand judicial scrutiny.
  • Proportionality and Fairness: Actions taken by authorities must be proportionate to the objectives sought and carried out in a fair manner, without discrimination or arbitrariness.
  • Remedial Jurisdiction: The High Court’s remedial jurisdiction is a powerful tool for those aggrieved by the sealing of premises, provided they can demonstrate a violation of rights or non-compliance with procedural requirements.
  • Ensure any sealing action is preceded by a fair hearing and proper notice.
  • Verify that the authorities are acting within their legal bounds.
  • Document all proceedings meticulously for potential legal challenges.
  • Seek immediate legal advice to address any procedural improprieties.
  • Understand the relevant laws and regulations to anticipate and mitigate the risk of sealing.
  • Legal Authority: The existence or absence of statutory authority for the sealing action is a critical factor.
  • Adherence to Due Process: Following due legal process, including issuing notices and allowing for representation, significantly influences the outcome.
  • Evidence of Compliance or Violation: The material evidence supporting the reasons for sealing or compliance by the premises owner can sway judicial decisions.
  • Jurisdiction and Powers: Whether the authority taking the action had the jurisdiction to do so, and whether their powers extend to sealing premises.
  • Legal actions to seal premises must be grounded in legitimate authority and follow due process.
  • Compliance with statutory requirements is non-negotiable for maintaining the validity of titles to premises.
  • Authorities must act within the bounds of their legal competencies, ensuring no infringement on constitutional rights.
  • Parties must act in good faith and exhaust all proper legal channels before seeking redress from higher courts.
  • Evidence of Ownership: Demonstrating lawful ownership or occupancy can challenge the authority’s claim.
  • Due Process: The sealing action must follow due process, including issuing a Show Cause Notice and allowing for a hearing.
  • Lack of Threat: The premises should not pose a serious threat to public health, safety, or welfare.
  • Pendency of Legal Proceedings: If there are pending legal proceedings regarding the premises, sealing may be premature.
  • Compliance with Legal Formalities: Compliance with the requisite legal formalities for the premises’ usage can mitigate sealing actions.


(1) The sealing of premises by regulatory authorities must be grounded in law and comply with constitutional safeguards. Arbitrary or discriminatory enforcement is not permissible. The affected parties have the right to challenge such actions through judicial review, and the courts have shown a willingness to intervene where authorities exceed their powers or fail to adhere to procedural norms. Effective legal representation is crucial in navigating the complexities of administrative law and securing the rights of individuals and businesses against overreach by regulatory bodies.

(2) The remedy for a property owner whose premises have been sealed typically involves seeking judicial review on the grounds that the action taken by the authorities was disproportionate, lacked sufficient evidence, was in violation of natural justice, or failed to follow due process. The success of such an action would depend on:

  • Showing that the authority did not follow the laid down procedure, including proper notice and opportunity for hearing.
  • Demonstrating that the decision was arbitrary or discriminatory.
  • Providing evidence that the property owner was not responsible for the non-conforming use.
  • Proving that the authorities’ actions were an unreasonable infringement on constitutional rights.

(3) Factors Affecting Success or Failure of Remedial Action

  • Evidence: Availability of clear evidence that due process was not followed by the authorities is crucial.
  • Procedure: Whether the authorities adhered to the procedural requirements such as issuing a notice, allowing for a response, and providing a hearing.
  • Responsibility: It must be established who is responsible for the non-conforming use of the building.
  • Discrimination: Any indication of discriminatory practices by the authorities can affect the outcome of remedial action.
  • Constitutional Rights: The extent to which constitutional rights are being infringed upon by the sealing of premises.
  • Proper application of zoning laws and building regulations is vital in maintaining order within cities and municipalities; however, this must be balanced against the rights of property owners.
  • Authorities must ensure that actions taken against property owners for non-conforming use are based on solid evidence, follow due process, and respect the property and business rights guaranteed by the Constitution.
  • Property owners should be vigilant in ensuring that their premises are used in accordance with zoning and building regulations to avoid punitive actions.
  • In cases where premises are sealed, property owners have the right to seek a review of the decision, provided they can substantiate claims of procedural lapses or rights violations.
  • The success of remedial actions for the sealing of premises largely depends on the ability of the property owners to navigate the legal system and present a compelling case that the authorities’ actions were unjust or improperly executed.
  • The cited cases reveal a pattern where the exercise of sealing powers by authorities is scrutinized by the courts to ensure that it does not violate constitutional guarantees and statutory provisions. The primary focus is on the legality and proportionality of the sealing action.

In summary, the actions against sealing of premises under Section 145 of the Cr.P.C, are influenced by various factors, including the nature of the authority’s action, compliance with legal procedures, and the affected party’s diligence in seeking remedy. The majority of these cases involve the application of the Criminal Procedure Code and relevant property laws, demonstrating the need for a careful, well-informed approach when challenging the sealing of premises.

Sealing of Property in Islamabad due to Non-Conforming Use 

Legal Framework under which buildings are sealed 

The Capital Development Authority (CDA) Ordinance of 1960 stands as a cornerstone in regulating urban development within Islamabad, the vibrant capital of Pakistan. Two sections of this ordinance, 49C and 49E, outline crucial aspects of regulatory compliance and judicial oversight, which merit a closer look for anyone engaged in property development, legal practice, or civil administration in the region.

Under Section 49C, the CDA wields the power to enforce compliance with the provisions of the Ordinance. This section empowers the Deputy Commissioner, or any authorised person, to order the removal, demolition, or alteration of any structure or building erected in violation of the Ordinance. It also allows for the cessation or alteration of land use that does not conform to the stipulated regulations. If these orders are not complied with within the specified time, the Deputy Commissioner can take direct action. This may include employing necessary force and recovering the costs of such actions from the responsible individuals.

Moving on to Section 49E, the Ordinance shields the CDA’s actions from judicial scrutiny, with certain exceptions. It essentially bars the courts from questioning the legality of actions taken under the authority of the Ordinance. However, this immunity is not absolute. As interpreted by case law, the courts retain the jurisdiction to scrutinize and, if necessary, invalidate any action taken by the CDA or its officers if found to be illegal or in bad faith. The term ‘mala fides’, or actions taken in bad faith, encompasses those taken with malicious intent, for personal gain, or in a manner that constitutes a fraudulent or colourable exercise of power.

The case law elaborates that civil courts can exercise their jurisdiction to examine the validity of acts by statutory functionaries to determine whether they exceed their powers. Therefore, despite Section 49E’s broad language, judicial oversight remains an essential check on the CDA’s authority. If a dispute arises regarding the sum due to the authority, it must be settled in accordance with the law before it can be deemed as due.

It is also noteworthy that the jurisdiction of civil courts is not entirely ousted. For instance, when it comes to the nature of a transaction or the status of the parties involved, the courts can still provide declaratory relief as per the Specific Relief Act, 1877.

However while the CDA Ordinance provides a framework for orderly urban development, it does not grant unfettered powers to the Authority. The checks and balances introduced by the judiciary ensure that the exercise of power is not absolute and that individuals affected by the CDA’s actions have recourse to challenge any overreach. This intricate balance of power and oversight ensures that development within Islamabad proceeds in an orderly, fair, and legally compliant manner, safeguarding the rights of all stakeholders involved.

Under the provisions of Section 49C of the Capital Development Authority Ordinance 1960, the Deputy Commissioner or an authorized representative of the Authority holds the power to enforce compliance with the Ordinance regarding the construction, alteration, or usage of buildings and land. The legislative intent behind this section is to maintain the orderly development of the area under the Authority’s jurisdiction. If a building or structure is erected or used contrary to the provisions of the Ordinance, the Authority has the mandate to issue a written order to the owner or person in control to remedy the contravention. This could entail alteration, cessation of use, or even demolition.

Subsection (2) of Section 49C further allows the Authority to take direct action if the owner fails to comply with the order within the specified time, including the use of force and police assistance if necessary. The cost incurred by the Authority in taking such actions can be recovered from the person responsible for the contravention.

Section 49E, however, introduces a limitation on the jurisdiction of courts to question the legality of actions taken under the Ordinance by the Authority. This is a common legislative technique to ensure that the actions of a statutory body are not lightly interfered with, thereby providing a smooth and uninterrupted function of the administrative processes. Yet, this limitation is not absolute.

The case law has clarified that while Section 49E bars the jurisdiction of courts over actions taken in accordance with the Ordinance, it does not extend to actions that are illegal or made in bad faith (PLD 1978 Lah.1116). It is established that any action taken by the Authority or its officers that is not in compliance with the Ordinance itself, or is tainted with mala fides, falls outside the protective umbrella of Section 49E (PLJ 1983 FSC 298). Mala fides, or bad faith, implies that an action is taken with malicious intent, which may include personal motives for harm or benefit, colourable exercises of power, or fraud (PLD 1974 SC 151).

The principle that civil courts can examine the validity of acts of statutory functionaries to determine whether they exceed their powers, even under the shadow of Section 49E, is well-established (PLD 1981 Lah. 341). Further, when there is a dispute over the actual sum due to the Authority, the issue must be settled in accordance with the law, and until such settlement, the sum cannot be deemed due (1979 CLC 565).

Moreover, the jurisdiction of the civil courts is not barred when a suit seeks a declaration on the nature of a transaction and the status of the parties involved, along with consequential relief under Section 42 of the Specific Relief Act 1877 (PLD 1995 SC 457).

In essence, while the Authority is vested with significant powers to enforce its Ordinance, these powers are not unbridled and must be exercised within the bounds of the law and in good faith. Actions taken outside these parameters are subject to judicial scrutiny, thus ensuring a balance between the need for effective urban planning and protection against the arbitrary exercise of power.

Case Analysis: 2023 CLC 304 Islamabad

In the case of Mrs. Shamshad Butt versus the Deputy Commissioner C.D.A., Islamabad, the court examined the enforcement of Section 49-C of the Capital Development Authority Ordinance, 1960 in conjunction with the Islamabad Residential Sector Zoning (Building Control) Regulations, 2005. The primary issue was the non-conforming use of buildings and the powers of the Deputy Commissioner to seal premises violating the regulations.

The Deputy Commissioner (DC) is empowered to initiate proceedings if a building is under non-conforming use. The process entails issuing a notice to the occupant, owner, or allottee, providing them with an opportunity to be heard. If the non-conforming use persists, the DC can issue an interim order to seal the premises even without a final verdict. However, if the occupant undertakes to cease the non-conforming use within a reasonable time, the DC may defer sealing the premises to allow for compliance. If the occupant fails to adhere to this undertaking, a final order including penalties and sealing may be issued.

For the action to be lawful, the DC must ensure proper service of notice, typically by registered post and special messenger, and may also affix the notice upon the premises. The DC is required to consider any rebuttal from the occupant and must provide a “speaking order” justifying the penal action if a fine is imposed.

Legal Remedies and Considerations

The legal remedy for an occupant facing the sealing of premises generally involves challenging the order in a court of law. The occupant must demonstrate that the DC’s actions were not in accordance with the law, such as failure to provide due notice or opportunity to be heard, or that the premises were not, in fact, being used non-conformingly.

Factors influencing the success of such a challenge include:

  • Adequacy of Notice: Was the notice served in accordance with legal requirements?
  • Opportunity for Rebuttal: Was the occupant given a fair chance to respond to the allegations?
  • Procedural Compliance: Did the DC follow the proper procedure in sealing the premises?
  • Reasonableness of Time: Was the occupant given a reasonable time to cease the non-conforming use?
  • Legitimacy of Non-conforming Use: Can the occupant show the use was actually conforming, or that the DC’s interpretation of non-conformity was incorrect?

Actions and Connected Laws

The majority of actions in sealing cases involve administrative procedures, where the DC acts on a report from the Building Control Inspector. The connected laws and regulations include:

  • Capital Development Authority Ordinance, 1960: Provides the framework for regulating buildings in Islamabad.
  • Islamabad Residential Sector Zoning (Building Control) Regulations, 2005: Outlines the specific regulations regarding the use of buildings in residential areas.

Takeaways and Analysis of Case Mrs. Shamshad Butt versus the Deputy Commissioner C.D.A., Islamabad (2023 CLC 304)

When facing the sealing of premises, occupants must act swiftly to comply with notices and should seek legal advice to ensure their rights are protected. Legal challenges must be rooted in procedural irregularities, improper service of notice, or a substantive misapplication of the concept of non-conforming use. It is crucial for occupants to be aware of zoning regulations and their rights under the law to prevent or remedy the sealing of premises.

In summary, the case demonstrates the strict application of zoning regulations and the importance of due process. Occupants must be vigilant and proactive in ensuring their use of premises conforms to legal standards to avoid punitive actions such as sealing.

When it comes to non-conforming use of residential or business premises, the Capital Development Authority (CDA) in Islamabad has set regulations and procedures to deal with such situations. Based on the cited case of Mrs. Shamshad Butt versus the Deputy Commissioner C.D.A., Islamabad (2023 CLC 304), there are several key takeaways for homeowners or business owners and the potential remedies available to them.

Firstly, Regulation 2.17.5 of the Islamabad Sector Zoning Building Regulation 2005 allows for the sealing of premises under non-conforming use after a 15-day notice period issued by the Building Control Directorate. The action of sealing is to be carried out by the Director Enforcement of the CDA or an authorized person, in the presence of a CDA Magistrate. This regulation provides a clear procedure that must be followed by the CDA, including the issuance of a notice and the involvement of a Magistrate at the time of sealing.

The case also highlights the application of Section 49-C of the Capital Development Authority Ordinance, 1960, in conjunction with the Islamabad Residential Sector Zoning (Building Control) Regulations, 2005. The Deputy Commissioner of the CDA is empowered to initiate proceedings against non-conforming use and issue notices accordingly. Before sealing the premises or imposing a penalty, the Deputy Commissioner must ensure that the occupant has been given an opportunity to be heard and that due process has been followed.

From the case of Mrs. Shamshad Butt, it is clear that the High Court found the CDA’s actions to be in violation of the principles of fairness and natural justice. The High Court set aside the orders passed by the CDA authorities and remanded the matter for a fresh decision. This outcome demonstrates that for a successful legal challenge, it is crucial to ensure that the authorities have adhered to due process, provided proper notice, and allowed for a fair hearing.

Moreover, the Estate Management Section of the CDA has the duty to independently issue notice before the cancellation of allotment based on non-conforming use. They must provide an opportunity for the allottee to give a plausible explanation within a specified time. This procedural requirement is another area where legal challenges may be successful if not properly followed by the CDA.

In addition, the role of the Building Control Inspector is significant. The Inspector must submit a detailed report on the non-conforming use, which includes necessary information such as the date, time, and specific reasons for the determination of non-conforming use. The accuracy and completeness of this report are essential, as it forms the basis for any action taken by the CDA.

For homeowners or business owners facing action from the CDA, the following remedies and considerations are key:

  • Ensuring the CDA has followed the proper notice procedure as outlined in the regulations.
  • Affirming that a fair hearing was provided, with a chance to respond to allegations of non-conforming use.
  • Verifying the accuracy and completeness of the Building Control Inspector’s report.
  • Challenging any arbitrary or unfair actions by the CDA that do not comply with the principles of fairness and natural justice.

Based on the above any legal action taken against the CDA for non-conforming use of premises should be grounded in ensuring the procedural correctness of the CDA’s actions, adherence to due process, and the principles of fairness and justice. If these aspects are not observed, they can form the basis for a successful challenge to the CDA’s actions.

In the case  the key legal provisions and remedies for a house or business owner facing action from the Capital Development Authority (CDA) for non-conforming use of premises, under section 49-C of the Capital Development Authority Ordinance, are both procedural and substantive in nature. Firstly, it’s clear from the citation that the Estate Management Section of the CDA has a duty to independently issue a notice to the allottee before the cancellation of allotment based on an order from the Deputy Commissioner. This means that the allottee must be given an opportunity to provide an explanation within a prescribed time. A house or business owner, therefore, has the right to receive notice and present their case.

Key Takeaways for Successful Legal Action:

  • Right to Notice and Hearing: The allottee must be served a proper notice and given an opportunity to be heard before any cancellation of allotment or sealing of premises is conducted.
  • Evidence Requirement: The Deputy Commissioner must ensure that the action is based on solid evidence, as documented by the Building Control Inspector, which may include visiting cards, signboards, photographic or video evidence, and statements from occupants.
  • Opportunity to Remedy: The occupant should be given a chance to rectify the non-conforming use within a reasonable timeframe, as suggested by the Deputy Commissioner.
  • Speaking Order: Any penal action, including fines imposed by the Deputy Commissioner, must be justified in a detailed, reasoned order.

In terms of other CDA laws and regulations involved, the Islamabad Residential Sector Zoning (Building Control) Regulations, 2005, would be relevant, as they define the permissible uses of buildings within different zones of Islamabad.

As for the provisions of Civil Procedure Code (CPC) and constitutional law that can be invoked, several avenues exist:

  • Civil Procedure Code: Under the CPC, an aggrieved party can file a suit for injunction to restrain the CDA from sealing the property or for declaration to declare the action of the CDA as illegal if due process was not followed.
  • Constitutional Remedies: Under the Constitution, the aggrieved party can file a writ petition under Article 199 of the Constitution of Pakistan. This Article empowers the High Courts to enforce the fundamental rights of individuals, including the right to fair procedure and due process.
  • Appeals and Revisions: The aggrieved party can file an appeal or revision against the orders of the Deputy Commissioner to the higher authorities within the CDA or to an appellate court.

It is critical for the house or business owner to promptly seek legal advice to ensure that their response to the CDA’s actions is timely and appropriately framed within the legal provisions available. This will involve preparing a robust defense, potentially collecting evidence to counter claims of non-conforming use, and ensuring procedural safeguards are duly followed by the authority.

When a house or business owner faces action from the Capital Development Authority (CDA) for non-conforming use of premises under Section 49-C of the Capital Development Authority Ordinance, they can consider several legal remedies. The key takeaways for successful legal action include ensuring that due process is followed by the CDA, the principle of fairness is upheld, and the rights of the property owner are not violated without substantial evidence of contravention.

Other cases from Islamabad involving Sealing of Property by the CDA 

  • 2023 CLC 304 Islamabad: This case emphasizes that the CDA must not exercise its powers arbitrarily or in a pick-and-choose manner. The petitioner successfully argued that the fine imposed was not substantiated with evidence and that the CDA’s actions were a violation of the principle of natural justice. In this scenario, the petitioner could argue on the grounds of procedural impropriety and breach of natural justice, leading to the High Court setting aside the orders passed by the CDA and remanding the matter for a fresh decision.
  • 2021 MLD 1909 Islamabad: Here, it is highlighted that there is a proper channel for appeals under Section 36 of the CDA Ordinance. If the Deputy Commissioner’s order is appealable, then the first step for a property owner is to utilize this internal appeal mechanism before approaching the courts. This case also illustrates the procedural requirement to exhaust all available remedies provided by the statute before seeking judicial review.
  • 2020 CLC 731 Islamabad: This case involved jurisdictional issues, determining which entity had the authority to regulate certain markets. It underlines the importance of understanding the scope of authority of various bodies like the Market Committee, Union Councils, and the CDA. For a property owner or a business, it’s important to ascertain that the CDA is acting within its jurisdiction.
  • 2019 PLD 365 Islamabad: The court referred to the Islamabad Capital Territory (Zoning) Regulations, 1992, which would be crucial in any case concerning zoning and land use. A property owner must ensure compliance with these regulations and can challenge any CDA action that is not in line with the zoning regulations.

In addition to the specific laws and regulations cited in these cases, property owners can also invoke provisions of the Civil Procedure Code for remedies like injunctions against the CDA’s actions if they are premature or lack legal basis. Under constitutional law, property owners can file a writ petition under Article 199 of the Constitution of Pakistan to challenge the CDA’s actions on grounds such as violation of fundamental rights, particularly the right to property and the right to fair trial.

In conclusion, a house or business owner in Islamabad facing sealing of premises by CDA due to non-conforming use must ensure that any action taken by the CDA is backed by evidence and follows due process. They should avail themselves of all statutory mechanisms of appeal and challenge any arbitrary or discriminatory actions by the CDA on constitutional grounds, ensuring that their fundamental rights are protected. Successful legal action will depend on a combination of ensuring procedural compliance by the CDA, utilizing the right legal channels for redress, and effectively arguing on the basis of fundamental rights violations.

Understanding the Jurisdictional Bar under Section 49E of the Capital Development Authority Ordinance, 1960

The Capital Development Authority (CDA) Ordinance, 1960, is a pivotal legal instrument that governs the operations of the CDA in Islamabad, Pakistan. Among its provisions, Section 49E stands out for its jurisdictional implications. It stipulates that no court or authority has the jurisdiction to question the legality of any action taken under the ordinance by the CDA. However, judicial interpretations have nuanced this seemingly broad immunity.

Key Cases Interpreting Section 49E

Jurisdiction of Civil Courts and Scope of Section 49E

Kishwar Malik vs. M. Sadiq Malik (1995 PLD 457 Supreme Court)

In this landmark case, the Supreme Court of Pakistan delved into the intricacies of Section 49E. It was held that while Section 49E does bar the jurisdiction of civil courts when the legality of actions under the Ordinance is in question, it does not preclude the courts from adjudicating on the nature of transactions and the status of the parties involved. The judgment clarified that suits for declaration with consequential relief under Section 42 of the Specific Relief Act, 1877, were not inhibited by Section 49E.

Ouster of Jurisdiction and the Powers of Civil Courts

Capital Development Authority vs. Abdul Majid Farooqi (1981 PLD 341 Lahore High Court Lahore)

The Lahore High Court expounded on the limits of Section 49E, emphasizing that civil courts could examine the validity of acts performed by statutory bodies to determine if they exceeded their authority. The court asserted that Section 49E does not serve as a barrier to such judicial scrutiny.

Legality of Orders and Civil Court Jurisdiction

Carrier Telephone Industries Ltd. Islamabad vs. Sohail Brothers (1978 PLD 1116 Lahore High Court Lahore)

This judgment further defined the boundaries of Section 49E, stating that the civil courts’ jurisdiction is only barred for orders that are passed in accordance with the Act. Thus, illegal orders or actions that are not in compliance with the Act fall outside the protective ambit of Section 49E and are subject to judicial review.


The jurisprudence surrounding Section 49E of the Capital Development Authority Ordinance, 1960, reveals a careful balance between protecting the actions of a statutory authority and preserving the right to judicial review. Courts have consistently held that while the CDA is afforded a degree of protection from legal challenges under Section 49E, this protection does not extend to actions that are ultra vires or beyond the scope of the authority’s legal framework. This ensures that while the CDA can function without undue interference, it remains accountable and within the bounds of the law.

By The Josh and Mak Team

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