C. Y. SOMAYAJULU, J. ( 1 ) THE admitted facts in this case are, Smt. Azizumunnisa Begum, w/o. Mohd. Shabuddin i. e. , mother of petitioner and the unofficial Respondents 4 to 12 (hereinafter referred to as the deceased) was granted 99 years lease in respect of 230 coconut trees and 3 tamarind trees, situated on the Mulaparru-Achanta and - deva Road, way back on 4-10-1955 by the third respondent-Zilla Parishad. Subsequent to the death of the deceased on 23-2-1999, in pursuance of the application of the petitioner that she became entitled to the lease granted to her mother i. e. , the deceased as per the registered Will executed by the deceased, third respondent even without issuing notice to the other heirs of the deceased i. e. , unofficial Respondents 4 to 12, passed orders transferring the lease in the name of the petitioner on 9-4-2002. After coming to know that fact, Respondents 4 to 12 made an application on 5-12-2002, objecting to the transfer of lease without notice to them to the petitioner, and made a request to transfer the lease to all the heirs of the deceased. Therefore, by the proceedings in Rc. No. 02-8257/95, dated 9-4-2002, third respondent cancelled the transfer of lease in favour of the petitioner, and observed that all the legal heirs of the deceased are entitled to equal share in the rights of the deceased and communicated that order to the petitioner, through his proceedings in Rc. No. 02/8275/96 Z. P. , dated 21-1-2005, with a direction to handover the trees. That order is questioned in this writ petition. ( 2 ) THE main contention of the learned counsel for the petitioner is that since there is a gross violation of the principles of natural justice, as Respondents 2 and 3 did not afford an opportunity of being heard to the petitioner, on the petition submitted by Respondents 4 to 12 the order impugned is liable to be set aside, more so because, some of the brothers and sisters of the petitioner who filed W. P. No. 3199 of 2003 questioning the transfer of lease in favour of the petitioner, had withdrawn that petition resulting in its dismissal on 29-9-2004.
( 3 ) THE contention of the learned counsel for the Respondents 4, 5, 8, 10 and 11 is that since the deceased was a muslim who has no absolute right to execute a Will, before transferring the lease held by the deceased in favour of the petitioner, third respondent ought to have issued notice to Respondents 4 to 12 for their comments on the Will said to have been executed by the deceased. It is his contention that since transfer of the lease in favour of the petitioner, without notice to respondents 4 to 12, is invalid and irregular and since, setting aside of the order impugned results in revival of an invalid and irregular order petitioner is not entitled to any relief, and relied on M. C. Mehta v. Union of india, (1999) 6 SCC 237 and Aligarh muslim University v. Mansoor Alikhan, (2000) 7 SCC 529 . ( 4 ) THE fact that Respondents 4 to 12, who are brothers and sisters of the petitioner, were not given an opportunity of being heard, before transfer of the lease in favour of the petitioner is not denied or disputed. It is also not in dispute that petitioner was not given an opportunity of being heard before passing the order impugned cancelling the transfer made in her name earlier. What is sauce to the goose is also sauce to gander. Petitioner who complains of breach of principles of natural justice seems to have forgotten that she obtained the transfer of lease in her name without notice to Respondents 4 to 12, who are her brothers and sisters. So when she claims that cancellation of lease in her favour without notice to her is unsustainable she should know that transfer of lease in her favour without notice to respondents 4 to 12 also is unsustainable. In Para 15 of M. C. Mehta s case (supra), the Supreme Court observed as follows:"15. It is true that whenever there is a clear violation of the principles of natural justice, the Courts can be approached for a declaration that the order is void or for setting aside the same.
In Para 15 of M. C. Mehta s case (supra), the Supreme Court observed as follows:"15. It is true that whenever there is a clear violation of the principles of natural justice, the Courts can be approached for a declaration that the order is void or for setting aside the same. Here the parties have approached this Court because the orders of the department were consequential to the orders of this Court The question however is whether the Court in exercise of its discretion under Article 32 or article 226 can refuse to exercise discretion, on facts or on the ground that no de facto prejudice is established. On the facts of this case, can this Court not take into consideration the fact that any such declaration regarding the 10-3-1999 order will restore an earlier order dated 30-7-1997 in favour of Bharat Petroleum corporation which has also been passed without notice to HPCL and that if the order dated 10-3-1999 is set aside as being in breach of natural justice, Bharat petroleum will be getting two plots rather than one for which it is has no right after the passing of me latter order of this court dated 7-4-1998?"and held in Para 24 as follows:"in our view, on the admitted and indisputable facts set out above, namely, the recall of our earlier order of the court, it becomes mandatory for the court to restore the status quo ante prevailing on the date of its first order. . . . . . . "in Para 23 of Aligarh Muslim University s case (supra), the Supreme Court observed that:"23. Chinnappa Reddy, J. in S. L. Kapoor case [ (1980) 4 SCC 395] laid down two exceptions (at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. ( 5 ) SO merely because principles of natural justice are violated an order need not be set aside, if such setting aside, revives another unjust or unjustifiable order.
Of course, this being an exception, great care must be taken in applying this exception. ( 5 ) SO merely because principles of natural justice are violated an order need not be set aside, if such setting aside, revives another unjust or unjustifiable order. ( 6 ) THE effect of the order impugned is restoration of status quo as on the date of death of the deceased. If the order impugned is set aside, the transfer in favour of the petitioner, made without notice to respondents 4 to 12, which is unjust and improper, would get revived. Such revival cannot be permitted more so because as per Muslim Law, a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator and a single heir may consent so as to bind his own share and a bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent - [see narunnissa v. Sheikh Abdul Hamid (AIR 1987 Karn. 222] and since it is not the case of the petitioner that Respondents 4 to 12 consented to the bequest allegedly made in her favour by the deceased in the registered Will said to have been executed by her, the truth, validity and genuineness of which also have to be established by the petitioner. ( 7 ) THEREFORE, I do not find any grounds to set aside the order impugned and so the petition is dismissed. 3rd respondent after issuing notices to petitioner and Respondents 4 to 12, can decide the question of transfer of the lease given to the deceased on 4-10-1955 to the petitioner, after affording a due opportunity of being heard. No costs.