 and direction to not to take any coercive action against the members of the Petitioner-Association.){kind=link}
The Delhi High Court recently directed that for a period of three weeks or till the appeals are listed before Appellate Tribunal-MCD (AT-MCD), no coercive action shall be taken to seal the premises of the members of the Furniture Block Market Association.
A Single Bench of Justice Sanjeev Sachdeva disposed a Petition filed by Furniture Block Market Association seeking stay on the sealing order dated 15/03/2022 passed by the North Delhi Municipal Corporation (NrDMC) and direction to not to take any coercive action against the members of the Petitioner-Association.
On March 25 , counsel for the petitioner submitted that the petition has been filed in a representative capacity as there are over 50 members in the petitioner-Association. It is contended that there is a threat of sealing.
Counsel appearing for the respondent-Corporation submitted that the remedy of the petitioner is to approach the Appellate Tribunal-MCD and not by way of the petition. Counsel further submitted that the impugned sealing order has been passed on account of misuse of the premises by the members of the petitioner-Association and as per her instructions, one or two members of the Petitioner-Association have already filed an appeal before the AT-MCD.
On this Counsel for the Petitioner seeks leave to withdraw the petition reserving the right of the members of the Petitioner-Association to approach AT-MCD. Counsel for the Petitioner however, prays that coercive action be deferred for three weeks to enable the members of the Petitioner-Association to approach AT-MCD.
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Keeping in view of the facts and circumstances, the Court disposed of the Petition , reserving the right of the members of the Petitioner-Association to approach AT-MCD.
It is, however, clarified by the Court that for a period of three weeks or till the time the appeals are listed before AT-MCD, no coercive action shall be taken in respect of the premises of the members of the petitioner-Association whichever is earlier. It is further clarified by the Court that continuation of the interim protection thereafter shall be subject to orders to be passed by AT-MCD.
Advocates Gagan Gandhi and Mohit Kaushik appeared for the Petitioner Association.
The members of the Petitioner-Association received notices dated 22/12/2021 u/s 345-A and Section 347 of the Delhi Municipal Corporation (D.M.C) issued through the Deputy Commissioner, NrDMC , to stop the misuse of the premises which were replied by the members on 28/12/2021 and on 20/01/2022 the Deputy Commissioner, NrDMC , passed the sealing order and NrDMC sealed the premises of some of the members of the petitioner association in the early hours on 20/01/2022 . Later , the Delhi High Court directed the North Delhi Municipal Corporation (NrDMC) to de-seal the premises of the members of the Furniture Block Market Association.
The NrDMC again passed the sealing order dated 15/03/2022 directing members of the petitioner association to deposit the conversion and parking charges within three (3) days else the sealing action will be taken . The Petitioner association again approached the High Court.
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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 reasonable time has not been granted by the NrDMC to the members of the petitioner association in order to exercise legal remedy in accordance with law.
H.Because the NrDMC is in violation of the Judgement dated 25/01/2022 passed by the High Court in W.P ( C ) No.l515/2022 titled “Furniture Block Market Association V North Delhi Municipal Corporation & Ors” by not granting reasonable time to the members of the petitioner association to exercise legal remedy in accordance with law.
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 15/03/2022 will expire on 13/04/2022 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.
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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 of the petitioner association were being threatened on 23/03/2022 by the officials of the NrDMC of sealing action.
K.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.
L. Because the DDA has not clarified to the members of the petitioner association in lieu of their representation dated 27/01/2022.
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 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.
P. Because the visit of the officials of the NrDMC on 23/03/2022 to seal the premises of the members of the petitioner association is in complete violation of article 300A of the constitution.
Q.Because the members of the petitioner association are still grappling with the financial difficulties for the last two years due to Covid-19 pandemic.
R.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.