Issuance Of Notice To Parties A Part Of Fair Hearing Rule, Must Be Adhered To In Property Mutation Proceedings: Madhya Pradesh HC Reaffirms

Stressing on the importance of issuing notice in property mutation proceedings, the Gwalior bench of the Madhya Pradesh High Court reaffirmed that issuance of notice–an essential component of fair hearing rule, ensures that adequate opportunity is given to the parties to appear in any proceeding–whether before court or a competent authority.

In doing so the high court observed that the petitioner was never heard by the State in 2015 when it passed the order rejecting the petitioners' mutation of a house. On a bare reading of the 2015 order, the high court said, that it reflected that only the respondent parties along with their counsel were present at the time of hearing and no notices were ever issued to the petitioners. 

A single judge bench of Justice Milind Ramesh Phadke in its order observed, “It is noteworthy that the State while setting aside the order of mutation had not observed that mutation on the basis of hibanama was barred in law rather had gone into the merits of the matter that the mutation of the name of petitioner done in the municipal records was not in accordance with law. Thus, when the very mutation of the name of petitioner done in the municipal records was not set-aside on the ground of maintainability of very application on the basis of hibanama, then it was trite on the part of State to have issued notices to the petitioner and only after hearing the petitioner should have passed the impugned order". 

A hibanama is a written declaration of a gift or disposition of property.

“The 'rule of fair hearing' or 'Audi Altarem Partem' is a well- recognized principle of natural justice and is applied to ensure that no person should be condemned or punished by a superior authority without having a fair chance of being heard. One of the component of this rule is 'issuance of notice' upon which receipt of the same would be assumed that proper and adequate opportunity has been given to the party concerned to enter appearance in any proceeding, be it before the court or a competent authority who could be a superior officer," the court added. 

The petitioners had applied for mutation over house ad measuring 30 X 40 sq. ft. on the basis of Hibanama executed by Ayub Khan in December 2009. In November 2011, the Municipal Council allowed the mutation in favour of petitioner. Against this, the respondent parties filed an appeal before the Additional Collector, District Vidisha (M.P) wherein it was held that the appeal was not maintainable and thus, it was dismissed. The respondents thereafter preferred revision before the State of Madhya Pradesh along with application for condonation of delay and application for exemption from filing certified copy.

On this plea, an opinion was called for from Chief Municipal Officer Nagar Panchayat, Lateri District Vidisha. The C.M.O. Lateri, Vidisha thereafter sent a report and on the basis of the report, the order dated February 23, 2015 was passed setting aside the petitioner's mutation without issuing any notice to the petitioner.  Against this the petitioner moved the high court. 

The petitioner agued that both parties were governed by Muslim Law and as per the rule of succession, respondent No.1 had lost his right to succeed the property after he has been declared as "accused of a murder, which in the present case was that of his own brother Mohd. Iqbal Khan i.e. husband of petitioner". Therefore, out of love and affection, father-in-law of the petitioner by way of the hibanama had gifted the property to the petitioner.

On the other hand, the counsel for the respondents argued that even if it is assumed that no opportunity of hearing was granted to the petitioner while setting aside the mutation, the State has rightly observed in the order that when the matter is regarding rights in property, then the proper forum is the civil court. 

After considering the contentions, the high set aside the order rejecting the mutation of the petitioners. It further observed that since the determination of the right of party in the property is within the exclusive domain of civil court, the respondent parties can very well agitate the issue before the Civil Court.

So instead of remanding the matter back to the State, the high court disposed of the petition with the liberty to the respondent parties to approach the competent court of civil jurisdiction for crystallizing their rights in the property in question. 

Case Title: YASMEEN BEE @ BABY AND OTHERS versus MOHAMMAD SHAHID KHAN AND OTHERS, W.P. No.1987 of 2015

Click Here To Read/Download Order