JUDGMENT
B.N. Kirpal, J.
(1) Rule D. B. The challenge in this writ petition is essentially to the order dated 23rd Feb., 1990 passed under Section 31A of the Delhi Development Act, 1957. By this order, part of the premises of the petitioners situated at Community Centre, Wazirpur Industrial Area has been sealed.
(2) The contention of the petitioner against the aforesaid order is that the principles of natural justice have been violated as no reasonable opportunity has been granted to the petitioner prior to the passing of the said order. It is also contended that Section 31A is unconstitutional inasmuch as it confers arbitrary powers on the respondents.
(3) Coming the question of the constitutionality of the Section we find that the said provision gives the power to the respondent to seal unauthorised delvelopment. The said provision reads as follows :-
“SECTION, 31A- Power to seal unauthorised development
(1)It shall be lawful for the Authority or the competent authority, as the case may be, at any time, before or after Making an order for the removal or discontinuance of any development under Section 30 or Section 31. to make an order directing the scaling of such development in the manner prescribed by rules, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such development.
(2)Where any development has been sealed the Authority or the competent authority, as,the case may be, may, for the purpose of removing or discontinuing such development order the seal to be remov-
(3)No person shall remove such seal excent: –
(A)under an order made by the Authority or the competent Authority under sub-section (2), or
(B)under an order of the Appellate Tribunal or the Administrator of the Union Territory of Delhi, made in an appeal under this Act.”
(4) It is clear from the said provision that sealing is to be effected only if the conditions and circumstances mentioned in the said provisions are applied with or satisfied. If, for instance, there is unauthorised development then power can be exercised for the sealing of the premises if the mistake is not removed. This provision has to be read with Delhi Development Authority (Sealing of Development) Rules, 1986, rule 3 of which inter alia, provides service of the order of sealing and rules 4 and 5 provides for the manner in which unauthorised development is to be sealed. We, therefore, find enough guidelines contained in Section 31A.
(5) In view of the decision of this Court in the case of Asian Hotels Ltd. Vs. Delhi Development Authority (C.W.P. No. 750 of 1990). decided on 12th March 1990, it is clear that the principles of natural justice are inherent and have to be read into Section 31A. This being so We find to infirmity in the provisions as such. Whether Section 31A has been complied with or not is of course a different question.
(6) As already stated, the contention of the learned counsel for the petitioners is that principles of natural justice have been violated. At the outset we would like to point out that whenever an order under Section 31A is passed adequate alternate remedy by way of an appeal is provided under Section 31C. In the present case, however, in view of the fact that the vires of Section 31A has been challenged and as an authority constituted under an Act cannot adjudicated upon the validity of the Section of an Act, therefore, alternative remedy would not be available. It is only for this reason that we are invoking our jurisdiction under article 226 of the Constitution and we find that in the present case no show cause notice envisaged by Section 31Awas issued and without the issue of such a show cause notice such action as has been undertaken, could not have been resorted to. It may be that on the facts of this case an action under Section 31A was called for, specially when a show cause notice dated 25th August, 1989 had been issued and an opportunity was given to the petitioners to appear on 11th September 1989 but that show cause notice referred to only Section 30 and Section 31(1) of the D.D.A. and did not refer to Section 31A.
(7) We may further observe that in response to the notice dated 25th August 1989, reply dated 4th September 1989 was sent. It was stated that the petitioners should be given an opportunity of bring heard. We however, find that by the notice dated 25th August 1989, date for personal hearing had been fixed on 11th September 1989 but on that date the petitioners chose not to appear in person and therefore, the petitioners cannot make a grievance of the denial of an opportunity to represent their case, persuant tp notice dated 25th August 1989. But as that notice was issued under Sections 30 and 31 and not under Section 31A, no action under Section 31A could be taken.
(8) We find no infirmity in the various notices which had been issued except that the order dated 23rd February 1990 whereby the petitioners premises have been sealed, is violative of principles of natural justice enshrined under Section 31A, and therefore, we quash that order. But it will be open to the respondents to issue a valid show cause notice under Section 31A and take such action against the petitioners as may be available in accordance with law. The writ petition is allowed as above.
