The Delhi High Court has recently directed the North Delhi Municipal Corporation (NrDMC) to de-seal the premises of the members of the Furniture Block Market Association.
A single-judge bench of Justice Sanjeev Sachdeva disposed of a petition filed by Furniture Block Market Association through Advocates Gagan Gandhi and Mohit Kaushik seeking a direction to the respondents to de-seal the premises of the members of the petitioner association which were sealed on 20.01.2022 and further seeks setting aside of the show cause notice dated 22.12.2021 U/s 345-A and Section 347 of the Delhi Municipal Corporation (DMC) issued through the Deputy Commissioner, NrDMC and sealing order dated 20.01.2022 passed by the same authority.
The counsel for the petitioner association submitted that no opportunity of challenging the sealing order was granted to the petitioners as the properties were sealed the very same day on which the sealing order was passed and no opportunity of personal hearing was granted to the petitioners prior to passing of the sealing order.
NrDMC incorrectly stated that conversion charges are liable to be paid whereas no conversion charges are liable to be paid for the subject market, the counsel added.
On the other hand, the NrDMC counsel apprised the High Court that the members of the petitioner association had met the Commissioner yesterday and assured the Commissioner that they shall be approaching the Delhi Development Authority (DDA) for the purposes of seeking a clarification with regard to the issue of payment of conversion charges and in view thereof the Commissioner, NrDMC has agreed to de-seal the subject premises and accordingly subject premises would be de-sealed for the time being to enable petitioners to provide the requisite clarification from DDA.
In view, thereof, the High Court disposed of the petition with the direction to the NrDMC to de-seal the premises of the members of the petitioner association forthwith.
“It is clarified that in case any further cause of sealing arises an opportunity of hearing would be granted to the petitioners and some reasonable time would be afforded to the petitioners to take legal recourse in accordance with law,” the order reads.
It is pertinent to note that the petitioner association has challenged the sealing order on the following grounds-
A. Because the show cause notices dated 22/01/2021 are ex-facie wrong,incorrect and untenable in law since the properties in question are being used for the purpose for which they were allotted by the DDA as per their lease deed and hence there is no misuse.
B. Because the aforementioned show cause notices are defective in the eyes of laws since the same is vague qua the misuse of the property and the amount of levy qua the charges and hence liable to be quashed.
C. Because it has been held by the Supreme Court of India in the case of Oryx Fisheries Private Limited Vs. Union of India & Ors that “If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.”
D. Because the show-cause notice issued by the NrDMC is premeditated and pre-judged and hence against settled principle of law.
E. Because the members of the petitioner association were not told what is the misuse and the allegations based on which the NrDMC held that there is a misuse in violation of reasonable opportunity of defense and an opportunity of making an objection as held by the constitution bench of the Supreme Court of India in Khem Chand V Union of India,1 AIR 1958 SCC 300
F. Because the members of the petitioner association have carried out the furniture trade for the last 40 years without the same being objected to by the NrDMC and or DDA.
G. Because the premises of the members of the petitioner association have been sealed early morning ie around 6 A.M on 20/01/2022 whereas the sealing notice is also dated 20/01/2022 and hence the sealing notice is against the principle of “audi alteram partem”.
H. Because the documents related to the present petition are lying inside the premises belonging to the members of the petitioner association which have been illegally sealed thereby depriving their fundamental right to defend themselves before the appropriate forum.
I. Because the sealing action is in violation of section 347B of the Delhi Municipal Corporation Act,1957 since the time period for filing appeal to the sealing notice dated 20/01/2022 will expire on 19/02/2022 which has been extended by the Supreme Court of India in Suo Motu Writ Petition ( C ) No.3 of 2020 vide its order dated 10/01/2022 till 28/02/2022 with further ninety (90) days period where the limitation would have expired during the period between 15/03/2020 till 28/02/2022 for all the judicial and quasi-judicial proceedings.
J. Because the statutory right of the members of the petitioner association of going in an appeal with the appellate tribunal constituted under section 347-A of the DMC Act ,1957 under section 347-B of the DMC Act by pursuing the procedure under section 347-C of the DMC Act has been frustrated as the members were not furnished with the sealing order ,the grounds of the appeal enumerating from the order.
K. Because of the embargo of section 347E of the DMC Act, statutory right of the members of the association has been snatched away resulting in grave miscarriage of justice.
L. Because the members of the petitioner association are using the said premises in accordance with the perpetual lease deed between the lessee and the DDA and the same cannot be interrupted by NrDMC as being held by the Supreme Court of India in Union of India & Ors V Dev Raj Gupta & Ors ,(1991) 1 SCC 63.
M. Because the fundamental right to earn livelihood of the members of the petitioner association is being violated by the illegal and arbitrary action of the NrDMC.
N. Because in case of any ambiguity in understanding any of the components of a taxing statute namely subject of the tax,person liable to pay tax; and the rate at which the tax is to be levied,no tax can be levied till the ambiguity or defect is removed by the legislature and in case of ambiguity in charging provisions ,the benefit must necessarily go in favour of assessee as being held by the apex court in “Commissioner of Customs (Import),Mumbai V Dilip Kumar & Co & Ors ,(2018)9 SCC 1 decided on 30/07/2018.
O. Because the word industry mentioned in the lease deed executed by the DDA has been given narrow interpretation by the NrDMC.
P. Because the requisite charges in the show cause notice dated 22/12/2021 will be violative of article 265 of the Indian Constitution i.e. no tax will be levied or collected except the authority of law.
Q. Because the sealing action undertaken by the NrDMC is in complete violation of Article 300A of the Constitution which says that no person can be arbitrarily deprived of his property and hence violative of the constitutional right of the members of the petitioner association.
R. Because the NrDMC took advantage of restricted movement of the members of the petitioner association in lieu of the odd/even option of opening their shops/business entities in the light of Covid-19 pandemic.
S. Because the employees/labour working for the members of the petitioner association will be the most affected in lieu of covid-19 pandemic.
T. Because the members of the petitioner association are still grappling with the financial difficulties for the last two years due to Covid-19 pandemic.
U. Because the purported act and conduct of the respondent authorities is arbitrary, whimsical, unreasonable, unjust, unfair and also in violation of the fundamental rights protected Under the Constitution of India and are therefore liable to be intervened by the High Court.