Show-cause notice crucial, protects rights of party: HC

Srinagar, July 22: The High Court of J&K and Ladakh Monday held that a show-cause notice is crucial as it allows the party to whom it is issued to respond to specific allegations and it protects its rights before any adverse action is taken.

An aggrieved person had approached the court with the contention that the Jammu Development Authority (JDA) without any authority of law after a lapse of five years issued a show cause notice dated December 17, 2012, to him and subsequently a cancellation order dated April 11, 2012, about the land measuring 1 kanal, 16 marlas, and 208 sq ft he was allotted and for which he had paid Rs 36,76,471.

“The show cause notice is crucial as it upholds the principles of natural justice by allowing the noticee to respond to specific allegations and present his case. It ensures that the rights of the party to whom it is issued, are protected and guarantees a fair hearing before any adverse action is taken,” a bench of Justice Wasim Sadiq Nargal said.

“In the instant case, the respondent authorities at no point of time gave an effective opportunity of being heard to the petitioner to defend the land allotted in his favour, even though petitioner responded to the show cause notice which transpires that the show cause notice has been served for a mere formality to warrant the issuance of cancellation order,” the court said. “It appears to this court that the cancellation order has been passed in a hasty and slipshod manner without considering the genuineness of the allotment and the execution thereof.”

Bearing in mind the principle laid down by the Supreme Court and looking at the case in hand from all angles, the court concluded that show-cause notice revealed pre-determination of mind which led to the issuance of a cancellation order and hence the cancellation which was an offshoot of the show cause notice deserved to be quashed.

The court noted that once the lease deed had been executed in favour of the petitioner who had fulfilled all the requisite formalities as envisaged under the law and had invested a huge amount on the plot over five long years and abruptly after five years the respondents have taken a decision in the Board of Directors meeting to cancel the allotment when no fault could be attributed to the petitioner.

The court said that issuance of a show-cause notice in the instant case would have been a useless formality when the decision had already been taken with a premeditation mind by the authorities to cancel the allotment.

“This court is of the firm opinion that the case stands covered by ‘useless formality theory,'” it said.

Allowing the petition, the court said:  “The impugned Order of Cancellation, which is an offshoot of the show cause notice, is hereby quashed. It directed the petitioner to keep the amount of Rs 36,76,471 in the Account of JDA within two weeks.

Subject to doing the same, the JDA, the court said, is, accordingly, directed to regularize the possession in favour of the petitioner based on an allotment order issued way back in the year 2007, followed by the lease deed issued in the year 2008. The petitioner is at liberty to use the property in question.”