KARACHI, Jan 21: The Karachi Building Control Authority can neither evacuate, nor seal, nor demolish a residential building being unlawfully used for commercial purposes, the Sindh High Court declared on Wednesday.

In its order on a writ petition moved by a women's college management against a KBCA notice threatening sealing and demolition of the illegally converted premises on plot number 14, Al-Hamra Cooperative Housing Society, Block 7 and 8, Tipu Sultan Road, if the management fails to vacate the building and restore it to its lawful (residential) use, a division bench held that the impugned notice had no sanction under the Sindh Building Control Ordinance, 1979.

The petition was moved by the City School (Private) Limited and disposed of by the bench, which consisted of Justices Sabihuddin Ahmed and Zia Perwez, by a short order on Tuesday.

The notice was issued by the KBCA in September 2003 to both the owner and the occupier (tenant) of the building, which houses a women's college of the City School chain.

The bench observed that it carefully examined the 1979 ordinance (SBCO) but could not find any provision empowering the KBCA to evict or eject the occupant of an unlawfully converted building or seal or demolish it subsequently. It noted the contention of Advocate Shahid Jamil Khan, KBCA counsel, that Section 6 (3) of the ordinance expressly barred a building to be used for a purpose other than the one for which its plan was approved.

The counsel, however, candidly conceded, the order further noted, that the provisions of Section 7-A enabling the KBCA to demolish a structure applied only to the buildings constructed in violation of their approved plans under Section 6 (1) and not to premises raised in accordance with the plans but put to some other use in violation of Section 6 (3) of the ordinance.

The same view was held earlier in an unreported case decided by another division bench, comprising Justice Ahmed as a member. "We are, therefore, constrained to hold that the respondent (KBCA) has no lawful authority to demolish/seal the building occupied by the petitioner (the college management)," the bench observed in its order.

Referring to the KBCA counsel's argument that the authority could in any event prosecute the petitioner for violating the provisions of the ordinance under its Section 19, the bench pointed out that the section, indeed, spoke of prosecution for contravention of any provision of the ordinance. "However, in case such prosecution is undertaken, the petitioner will always have an opportunity to take up the issue of the scope of Section 6 (3), read with Section 19, together with the merits of its claim", the bench said.

It added that it would not like to record any observation that might pre-empt a competent forum to decide the issue. In the circumstances, "we would allow this petition to the extent that the petitioner could not be ejected nor could the building occupied by it be demolished or sealed. Since the prosecution can be initiated by the respondent and faced with any defence by the petitioner, no order is required to be passed by this court," the ruling said.

Under Section 19 of the SBCO, prosecution can be filed with and be conducted by a judicial magistrate. The maximum punishment provided is simple imprisonment for two years and a fine not below Rs 20,000.