Writ Petitions Do Not Lie Against Show Cause Notices Unless It Transcends Jurisdiction, Is Issued With Premeditated Mind: J&K High Court
Quashing an order of cancellation of a lease deed after issuing a premeditated show cause notice the Jammu and Kashmir and Ladakh High Court has emphasised that a writ petition does not ordinarily lie against a show cause notice unless it is issued with a premeditated mind.
In allowing a plea against the lease agreement cancellation by the respondent Jammu Development Authority (JDA) which was an offshoot of a premeditated show cause notice Justice Wasim Sadiq Nargal observed,
“… the language used in show-cause notice and the order of cancellation it is per verbatim the same which means that the respondents have only taken the decision to cancel the allotment of plot by way of a show-cause notice and the issuance of the show-cause notice was a mere formality as the respondents have already taken the decision to cancel the allotment in favour of the petitioner”
The court added that issuance of Show-cause notice in the instant case would have been a useless formality when the decision has already been taken with a premeditation mind by the respondent authorities to cancel the allotment and this court is of the firm opinion that the case stands covered by 'useless formality theory'.
Background of the Case:
Kamran Ali Khan, the petitioner, was allotted commercial property by the Jammu Development Authority (JDA) and had executed a lease deed in 2008. However, in 2011, the JDA issued a show cause notice proposing to cancel the allotment, citing procedural improprieties, including the allotment of the property without public auction.
The petitioner argued that the show cause notice was issued with a premeditated mind, rendering any response futile. This contention was supported by the fact that the JDA had already decided to cancel the allotment in its 71st Board of Directors meeting.
By executing the lease deed, a legally binding lessor-lessee relationship was established, which could not be dissolved through an administrative order without due process, he contended.
The JDA maintained that the cancellation decision was based on the Board of Directors' findings that the allotment did not follow the proper procedure of public auction.
They argued that the petitioner was given ample opportunity to respond to the show cause notice, thereby negating claims of prejudgment.
Court's Observations:
Justice Nargal examined the arguments and documentation in detail and noted that the language of the show cause notice suggested a predetermined decision to cancel the allotment, corroborating the petitioner's claim of prejudgment.
“.. the contents of the show cause notice as also the cancellation order reflect that the same language has been used in both the show-cause notice as also the cancellation order per verbatim”.
The court highlighted the necessity for authorities to issue show cause notices with an open mind, citing the Allahabad High Court judgment in M/S Bcits Pvt. Ltd. vs. Purvanchal Vidhyut Vitran Nigam Ltd. & Anr. It hence reinforced that a notice issued with a predetermined decision is not a genuine show cause but rather a predetermined verdict.
Drawing strength from useless formality theory' Justice Nargal added,
“Issuance of Show-cause notice in the instant case would have been a useless formality when the decision has already been taken with a premeditation mind by the respondent authorities to cancel the allotment”.
Highlighting the pivotal doctrines of estoppel and acquiescence Justice Nargal underscored that the JDA, having accepted the petitioner's compliance with all formalities and payments, could not abruptly reverse its stance after five years without valid legal grounds.
“Thus, the right which has been accrued to the petitioner, cannot be taken away without following due process of law and that too, after five long years when the respondents have gladly and voluntarily handed over the possession in favour of the petitioner without any grouse and there was no allegation of violation of the terms and conditions of the lease deed”, the bench remarked.
In light of these considerations the court concluded that the impugned order of cancellation was unjust, given the predetermined nature of the show cause notice and the JDA's acquiescence to the allotment through the lease deed.
The writ petition was allowed, and the cancellation order was quashed. The petitioner was directed to deposit ₹36,76,471/- with the JDA, after which the possession of the property was to be regularized in favor of the petitioner.
Case Title: Kamran Ali Khan Vs State of J&K
Citation: 2024 LiveLaw (JKL) 199