Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7467-7470 OF 2014
SALEM MUSLIM BURIAL GROUND
PROTECTION COMMITTEE …APPELLANT
VERSUS
STATE OF TAMIL NADU AND ORS. …RESPONDENTS
PANKAJ MITHAL, J.
1. Under challenge in these appeals is the judgment and order
passed by the Division Bench of the High Court of Judicature at
Madras allowing the writ appeals whereby and wherein the
judgment and order of the learned Single judge dated
29.04.2005 declaring the suit land as wakf property has been
set aside.
2. The controversy in the present appeals centers around land in
Zamin Survey Nos. 5105 and 5108 in Salem Zameen Estate
Signature Not Verified
Digitally signed by
POOJA SHARMA
Date: 2023.05.18
16:24:19 IST
Reason:
which corresponds to O.T.S. Nos. 2253 and 2210 respectively.
1
The O.T.S. 2253 has been allotted New Town Survey No. 1 (T.S.
No.1) and O.T.S 2210 has been allotted New Town Survey, i.e.
T.S. Nos. 113 & 70.
3.
In the present appeals, we are only concerned with the Zamin
Survey No.5108 (O.T.S.2210, now T.S. Nos.113 & 70) only
which henceforth shall be described as “suit land”.
4. The appellant herein is Salem Muslim Burial Ground Protection
1
Committee, Salem . The State of Tamil Nadu (Revenue
Department) is respondent No.1, and respondent Nos.2 and 3
are Commercial Taxes and Religious Endowments and the
Director of Survey and Settlement Office respectively, who are
formal parties. Respondent Nos.4 to 23 are the claimants, who
alleged that they are residing over the “suit land” and are the
settlers thereon from times immemorial having acquired rights
over it through their predecessors-in-interest. The old records
reveal that the “suit land” at one point of time was used as a
burial ground paramboke but the municipality ordered its
closure for health reasons somewhere in the year 1867 and an
alternative site was allotted for use as a burial ground.
1
hereinafter referred to as “ appellant Committee ”
2
5. One of the claimants respondents, Perumal Chettiar claimed
Ryotwari patta in the “suit land”. Three other sets of
respondents claimants’ namely, A. Ramaswamy Chettiar,
Govinda Pillai and appellant Committee through Sri Abdul
Salim Sahib also set up their claims in the suit land.
2
Accordingly, Assistant Settlement Officer, Salem in March,
1959 initiated inquiry under Section 11(a) of the Tamil Nadu
3
Estate (Abolition & Conversion into Ryotwari) Act 1948 .
6. The aforesaid Section 11 of the Abolition Act, 1948 provides
that every ryot in an estate shall with effect from the notified
date, be entitled to a ryotwari patta in respect of ryotwari lands
4
which as per Madras Estate Land Act, 1908 means cultivable
land in an estate other than the private land excluding certain
types of lands, such as village sites and those set apart for
common use of the villagers.
7. In the aforesaid inquiry initiated by the ASO under Section
11(a), Perumal Chettiar claimed that the “suit land” was
assigned to him by the zamindar of Salem vide Exhibit A1 dated
20.01.1935. He relied upon Exhibits A2 and A3 which were
2
hereinafter referred to as “ ASO ”
3
hereinafter referred to as “ Abolition Act, 1948 ”
4
hereinafter referred to as “ Estate Act ”
3
pattas granted to him in respect of the suit land by the then
zamindar. On the basis of the aforesaid assignment and the
pattas, he claimed himself to be in possession of the “suit land”
ever since the date of assignment and contends that the
muslims have never buried their dead bodies on the said land.
8. Simultaneously, A.Ramaswamy Chettiar claims to have
purchased some portion of the suit land from one Ramaswami
Pillai, Manickam Pillai, Subhu Pandaram and Vasudeva
Chettiar for a sum of Rs.5000/- some time in the year 1954. He
asserted his claim on the basis of mortgage deeds (Exhibits B2
to B7) executed by him in respect of the “suit land” in favour of
various parties.
9. The other claimant Govinda Pillai staked his claim over the suit
land, on the basis of title of his predecessors-in-interest as told
to him by his father whereas the appellant Committee asserted
that it is a burial ground, and it can’t be settled with any private
person.
10. The ASO vide order dated 31.03.1959 dismissed the claims of
all parties observing that the “suit land” is communal in nature
and that any assignment of the said land was not possible
without the declaration of the Collector under Section 20A of the
4
Estate Act. The ASO further observed that there had been no
burials on the “suit land” for the last 60 years and that there
exist only 2 tombs on T.S. No.2253 and there is absolutely no
sign of any burial on the “suit land” which in fact was never
used as a burial ground.
11. Both the claimants - Perumal Chettiar and A. Ramaswamy
Chettiar filed separate revisions against the above order of the
ASO before the Settlement Officer, Salem. The revisions were
dismissed by the Settlement Officer on the same reasoning as
that of ASO vide order dated 03.10.1959. It was held that the
claimants are not entitled to ryotwari patta on the “suit land”.
12. The orders of the ASO and the Settlement Officer were taken up
by means of revisions before the Director of Survey & Settlement
by the above two claimants respondents, but even those
revisions came to be dismissed on 31.01.1960. Subsequently,
the revision petitions before the Board of Revenue were also
dismissed. Aggrieved by the above orders starting from that of
the ASO, Settlement Officer, Director of Survey & Settlement
and Board of Revenue, writ petitions were filed by different
claimants in respect of the “suit land”, including writ petition
Nos.903 and 1258 of 1960 by A.Ramaswamy Chettiar and
5
Perumal Chettiar respectively and both of them claimed ryotwari
patta under Section 11 of the Abolition Act in respect of the “suit
land”.
13.
The writ court by means of a common judgment and order dated
03.05.1962 dismissed all the petitions holding that the
character of the land once burial ground would not change only
for the reason that it had not been used for burial purposes
since 1900 or that no burial has taken place on the said land.
It was also observed that the “suit land” was never used as a
burial ground and that the burial ground must have been on
part of T.S. 2253 and the two sites stand separated by a trunk
road.
14. Not satisfied by the decision of the writ court, the claimant
A.Ramaswamy Chettiar along with some others preferred writ
appeals before the Division Bench. The writ appeals were
dismissed vide judgment and order dated 12.01.1965 but with
the following observation:
“… in each of these cases, we
would commend the claim of the
concerned petitioner to a recognition by
government, of his right to continue in
possession under section 19A of
Madras Act 26 of 1948, subject, of
course to all consideration that could be
6
urged to the contrary effect by the
Muslim Burial Ground Committee, or
any person interested in claiming , even
at present time the communal user or
nature of the property in question.
Further, our remarks are subject to the
condition that the petitioners claiming
under section 19A of Act 26 of 1948 are
bonafide alienees for value, who have
taken such properties and put them to
private uses, in the genuine belief that
they were dealing with land in the
private ownership of vendors from the
Zamindar and not with communal land.
The erection of buildings thereon by
these persons may also be considered
as evidence of bonafides and a fact
entitling them, on equitable
considerations to the benefit of action
under section 19A of the Act.”
15. The above observation and direction of the Division Bench is the
bone of contention leading to the present appeals.
16. The aforesaid direction of the Division Bench was not
questioned by any party in any higher forum or even otherwise
rather the appellant Committee herein accepted the said order
by participating in the consequential proceedings without any
reservation.
17. The Director of Survey and Settlement on the strength of the
above directions of the Division Bench of the High Court
initiated proceedings under Section 19A of the Abolition Act and
7
finally accepted the claims set up by claimants A.Ramaswamy
Chettiar and others vide order dated 31.01.1975. It was held
that they have purchased the “suit land” for valuable
consideration from persons who occupied the “suit land” for a
very long time and that it was not required for the purposes of
burial.
18. Aggrieved by the decision of the Director of Survey and
Settlement conferring rights upon claimants under Section 19A
of the Abolition Act, the appellant Committee preferred revision
before the Commissioner of Land Revenue, Madras. It was
dismissed on 20.04.1976. The Revenue department issued
G.O.Ms.No.453 dated 14.03.1990, accepting and confirming the
order of the Director of Survey and Settlement allowing the
claimants respondents to remain in possession over the “suit
land”. At this stage, the appellant Committee invoked the writ
jurisdiction of the High Court by filing writ petition No.6300 of
1990 challenging the Government order issued by the Revenue
department. Another writ petition to the same effect was
preferred by A.Annamalai and 13 others. It was contended that
the Commissioner of Land Revenue had dismissed the revision
against the order of the Director of Survey and Settlement
8
without affording proper opportunity of hearing to them. The
said writ petitions were dismissed whereupon the appellant
Committee filed writ appeals which were allowed on 08.07.1999
and the matter was remitted to the Government to rehear it and
to redecide it within three months.
19. Consequent to the above directions, the matter was
reconsidered at the level of the Government and G.O.Ms.No.676
dated 23.12.1999 was issued observing that since the “suit
land” vests in the Government, it is open for it to grant
permission to the claimant respondents under Section 19A of
the Abolition Act to remain in possession of the same.
20. The appellant Committee again preferred writ petition
challenging the above G.O.Ms.No.676 dated 23.12.1999 by
filing a fresh writ petition No.5985 of 2000. The writ petition
was allowed vide order dated 29.04.2005 on two counts: (i) that
the “suit land” is notified to be a wakf property and as such it
cannot be alienated in exercise of powers under Section 19A of
the Abolition Act; and (ii) even if Section 19A is exercised no
rights could be conferred upon the claimants respondents in the
absence of any material to show that they were put in
possession by the land holders.
9
21. The claimant respondents, aggrieved by the aforesaid judgment
and order of the writ court filed writ appeal Nos.1327 and 1348
of 2005 respectively which has been allowed by the impugned
judgment and order dated 06.08.2009, after setting aside the
order of the writ court, holding that OTS 2253 is registered as a
muslim burial ground which has been handed over to the Wakf
Board whereas the “suit land” (OTS 2210 now T.S. Nos. 113 and
70) is merely recorded as a rudra bhumi with no sign of muslim
burial and as such has rightly not been held to be a wakf
property in the order dated 31.01.1975 of the Director of Survey
and Settlement. There is no material on record to establish any
dedication of the suit land as a wakf property and that the
notification dated 29.04.1959 regarding the “suit land” as a
wakf is unacceptable; first for the reason that the said
notification was not pressed by the appellant Committee till
1999 before any authority in any case; and secondly, for reason
that no evidence was brought on record to establish that any
preliminary survey as contemplated under Section 4 of the Wakf
Act, 1954 was conducted before issuing the said notification
under Section 5 of the Wakf Act.
10
22. It is in the above background that these appeals have been
preferred and have come up for consideration before us.
23. We had heard Mrs. June Chaudhari, learned senior counsel for
the appellant Committee and Shri Narendra Kumar and Ms.
N.S. Nappinai counsel appearing for the respondents.
24. Only two arguments were advanced by Mrs. June before us. The
first is that once a wakf is always a wakf and, therefore, mere
non burial of the dead bodies on the “suit land” over the last 60
years or so would not alter its nature so as to confer any right
upon the claimants respondents much less that of ryotwari
patta in exercise of power under Section 19A of the Abolition
Act; secondly, the claims of claimants respondents in the suit
land having been dismissed by the ASO, Settlement Officer,
Director of Survey and Settlement, Board of Revenue and by the
High Court in writ jurisdiction, the Division Bench of the High
Court in exercise of its appellate power could have either
dismissed or allowed the writ appeals but could not have
directed for consideration of the claims under Section 19A of the
Abolition Act that too while dismissing the writ appeals.
25. Under the Muslim law, a wakf can be created in several ways
but primarily by permanent dedication of any movable and
11
immovable property by a person professing Islam for any
purpose recognized by Muslim law as pious, religious or
charitable purpose and in the absence of such dedication, it can
be presumed to have come into existence by long use.
26. Ordinarily, a wakf is brought into existence by any express
dedication of movable or immovable property for religious or
charitable purpose as recognized by Muslim Law. Once such a
dedication is made, the property sought to be dedicated gets
divested from the wakif, i.e., the person creating or dedicating it
and vests in the Almighty Allah. The wakf so created acquires a
permanent nature and cannot be revoked or rescinded
subsequently. The property of the wakf is unalienable and
cannot be sold or transferred for private purpose.
27. The dedication resulting in the creation of a wakf may at times
in the absence of any express dedication may also be reasonably
inferred from the facts and circumstances of the case such as
long usage of the property as a wakf property provided it has
been put to use for religious or public charitable purposes. In
this regard, reference may be had to the Constitution Bench
12
decision of this Court in M. Siddiq (D) thr. L.Rs. Vs. Mahant
5
Suresh Das and Ors.
28. In the case at hand, there is no iota of evidence from the very
inception as to any express dedication of the suit land for any
pious, religious or charitable purpose by anyone professing
Islam. Therefore, on the admitted facts, the wakf by dedication
of the suit land is ruled out.
29. The only issue, therefore, is whether the suit land would
constitute a wakf by user as it was used as a burial ground
which practice has been stopped at least for the last over 60
years since the year 1900 or 1867. There is even no concrete
evidence on record to prove that the suit land prior to the year
1900 or 1867 was actually being used as a burial ground
( kabristan ). Therefore, the alleged use of the suit land as burial
ground prior to 1900 or 1867 is not sufficient to establish a wakf
by user in the absence of evidence to show that it was so used.
Thus, it cannot constitute a wakf by user also. The alleged
recording of the suit land as a kabristan or as a burial ground
is a misnomer or a misconstruction inasmuch as the suit land,
if at all, came to be recorded as a rudrabhoomi which denotes
5
(2020) 1 SCC 1
13
Hindu cremation ground and not a burial ground or a kabristan .
It was only Zamin Survey No.5105 or O.T.S. No.2253 (new T.S.
No.1) with two tombs existing which alone was recorded as a
burial ground. The said land is specifically demarcated and
separated from the suit land. The said burial land had already
been handed over to the Wakf Board and its recording as such
would not impact upon the nature of the suit land so as to
constitute it to be a burial ground or a kabristan . Therefore, the
suit land was not proved to be a wakf land by long usage also.
There is no evidence to prove creation of a wakf of the suit land
either by dedication or by usage.
30. The another limb of the argument is that the suit land has been
declared to be a wakf property vide notification dated
29.04.1959. In this regard, it has to be noted that such a
declaration has to be in consonance with the provisions of the
Wakf Act, 1954 or the Waqf Act, 1995. Both the aforesaid Acts
lay down the procedure for issuing notification declaring any
property as a wakf.
31. The Wakf Act, 1954, which actually is relevant for our purpose,
provides that, first, a preliminary survey of wakfs has to be
conducted and the Survey Commission shall, after such inquiry
14
as may be deemed necessary, submit its report to the State
Government about certain factors enumerated therein
whereupon the State Government by a notification in the official
Gazette direct for a second survey to be conducted. Once the
above procedure of survey is completed and the disputes arising
thereto have been settled, on receipt of the report, the State
Government shall forward it to the Wakf Board. The Wakf Board
on examining the same shall publish the list of wakfs in
existence with full particulars in the official Gazette as
contemplated under Section 5 of the Act. Similar provisions
exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two Acts would
reveal that the notification under Section 5 of both the Acts
declaring the list of the wakfs shall only be published after
completion of the process as laid down under Section 4 of the
above Acts, which provides for two surveys, settlement of
disputes arising thereto and the submission of the report to the
State Government and to the Board. Therefore, conducting of
the surveys before declaring a property a wakf property is a sine
In the case at hand, there is no material or evidence on
qua non.
record that before issuing notification under Section 5 of the
15
Wakf Act, 1954, any procedure or the survey was conducted as
contemplated by Section 4 of the Act. In the absence of such a
material, the mere issuance of the notification under Section 5
of the Act would not constitute a valid wakf in respect of the suit
land. Therefore, the notification dated 29.04.1959 is not a
conclusive proof of the fact that the suit land is a wakf property.
It is for this reason probably that the appellant Committee had
never pressed the said notification into service up till 1999.
33. In Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by
6
Lrs. Etc. , it was observed that the Wakf Board should follow
the procedure as required under Section 4, 5 and 6 or Section
27 of the Wakf Act before notifying the wakfs under Section 5 of
the Act.
7
34. In Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal , it
was observed as under:
“16. Thus, it is amply clear that the
conducting of survey by the Survey
Commissioner and preparing a report
and forwarding the same to the State or
the Wakf Board precedes the final act of
notifying such list in the Official Gazette
by the State under the 1995 Act (it was
by the Board under the 1954 Act). As
mentioned supra, the list would be
6
AIR 2002 SC 402
7
(2017) 13 SCC 174
16
prepared by the Survey Commissioner
after making due enquiry and after
valid survey as well as after due
application of mind. The enquiry
contemplated under sub-section (3) of
Section 4 is not merely an informal
enquiry but a formal enquiry to find out
at the grass root level, as to whether the
property is a wakf property or not.
Thereafter the Wakf Board will once
again examine the list sent to it with due
application of its mind and only
thereafter the same will be sent to the
Government for notifying the same in
the Gazette….”
35. It may be noted that Wakf Board is a statutory authority under
the Wakf Act. Therefore, the official Gazette is bound to carry
any notification at the instance of the Wakf Board but
nonetheless, the State Government is not bound by such a
publication of the notification published in the official Gazette
merely for the reason that it has been so published. In State of
8
Andhra Pradesh Vs. A.P. State Wakf Board and Ors. , this
Court consisting of one of us (V. Ramasubramanian, J. as a
Member) held that the publication of a notification in the official
Gazette has a presumption of knowledge to the general public
just like an advertisement published in the newspaper but such
a notification published at the instance of the Wakf Board in the
8
2022 SCC OnLine SC 159
17
State Gazette is not binding upon the State Government. It
means that the notification, if any, published in the official
Gazette at the behest of the Wakf Act giving the lists of the wakfs
is not a conclusive proof that a particular property is a wakf
property especially, when no procedure as prescribed under
Section 4 of the Wakf Act has been followed in issuing the same.
36. In view of the aforesaid facts and circumstances, we do not find
any substance in the argument that the suit land is or was a
wakf property and as such would continue to be a wakf always.
In the absence of any evidence of valid creation of a wakf in
respect of the suit property, it cannot be recognized as a wakf
so as to allow it to be continued as a wakf property irrespective
of its use or disuse as a burial ground.
37. Now coming to the second argument of learned counsel for the
appellate Committee that the High Court hearing the writ appeal
was only obliged to either allow the writ petition or to dismiss it
and when it had decided to dismiss it, it had no authority of law
to issue any direction to the Government to consider claims
under Section 19A of the Abolition Act.
38. The argument, though in the first blush, appears to be attractive
but upon deeper scrutiny is found to be bereft of merits for two
18
reasons; first, the appellant Committee was never aggrieved by
such a direction as it never questioned or challenged it in any
higher forum; secondly, the appellant Committee appears to
have accepted the said decision and the direction contained
therein by participating in the subsequent proceedings before
the Director of Survey and Settlement without any protest or
taking any objection in this regard. In such an event and
participation of the appellant Committee in the consequential
proceedings debars it from turning around so as to agitate a
point to which it had acquiesced and had virtually given up or
accepted.
39. To bring home the point that the appellant Committee had
participated in the proceedings before the Director of Survey and
Settlement pursuant to the directions of the Division Bench of
the High Court contained in the judgment and order dated
12.01.1965, it is relevant to reproduce paragraph 10 of the order
of the Director of Survey and Settlement dated 31.01.1975
whereunder the claimants respondents have been granted relief
in exercise of powers under Section 19A of the Abolition Act:
“The case was posted to 11.00
A.M on 17.1.75. The Secretary of the
Muslim Burial ground protection
committee who was present then said
19
that his lawyer is attending the case. He
never request any adjournment. But the
lawyer did not attend till 12:00 noon.
The case was heard by me and the
Secretary was also present. At 1.50 P.M
the advocate for the Muslim Burial
ground protection committee was
present and filed necessary vakalat. All
of a sudden he requested adjournment
and he was informed that no
adjournment would be given at this
state since the case was heard in the
presence of the parties who were
present in the morning. He wanted to
file written objection statement and was
permitted to file it before the rising of the
court; at 4 P.M on 17.1.75; the secretary
filed his written objection statement.”
40. After having lost in proceedings before the Director of Survey
and Settlement, the appellant Committee had preferred a
revision before the Board of Revenue which was also dismissed.
In the revision also no argument was raised that the directions
issued by the High Court are without jurisdiction and not
binding upon it.
41. The proceedings before the Director of Survey and Settlement
and the Board of Revenue as aforesaid clearly indicate that the
appellant Committee had accepted the directions of the High
Court and in pursuant thereof had participated in the
proceedings without any hitch and as such disentitled itself
20
from raising any objection in this regard at such a belated stage
for the first time before this Court.
42. The submission that the direction of the Division Bench of the
High Court is patently without jurisdiction and the issue of
jurisdiction can be raised by the party aggrieved at any stage is
also not of substance inasmuch as it would not apply to a case
where the party has succumbed to the jurisdiction by
participating in the proceedings thereto taking chance of
success and failure. In the present case, the appellant
Committee has not challenged the directions of the Division
Bench of the High Court as without jurisdiction rather
consented/accepted to the said directions by participating in
the consequential proceedings. Once the appellant Committee
has accepted the order and has participated in the proceedings,
it is estopped in law from questioning the jurisdiction of the
court in issuing such a direction. In such a view, it cannot be
said that the appellant Committee has a right to raise the
question of jurisdiction at this stage.
43. The Principle of Acquiescence has been explained in Black’s Law
th
Dictionary, 9 Edition, as a person’s tacit or passive acceptance
or implied consent to an act. It has been described as a principle
21
of equity which must be made applicable in a case where the
order has been passed and complied with without raising any
objection. Acquiescence is followed by estoppel. A Constitution
Pannalal Binjraj v. Union of
Bench of the Supreme Court in
9
India , six decades ago, had an occasion to explain the scope of
estoppel. It says that once an order is passed against a person
and he submits to the jurisdiction of the said order without
raising any objection or complies with it, he cannot be permitted
to challenge the said order, subsequently, when he could not
succeed. The conduct of the person in complying with the order
or submitting to the jurisdiction of the order of the Court by
participation, disentitles him to any relief before the Court.
44. It is settled that law does not permit a person to both approbate
and reprobate as no party can accept and reject the same
instrument. A person cannot be permitted to say at one time
that the transaction is valid and to obtain advantage under it
and on the other hand to say that it is invalid or incorrect for
the purposes of securing some other advantage.
45. The position in the case at hand is similar and identical as in
the above referred case and as such the appellant Committee
9
AIR 1957 SC 397
22
having participated in the subsequent proceedings pursuant to
the Division Bench decision of the High Court on being
unsuccessful therein cannot be allowed to raise or dispute the
validity of such an order.
46. In view of the aforesaid facts and circumstances, we do not find
any substance in either of the two points canvassed on behalf
of the appellant. The appeals as such lack merit and are
dismissed with no order as to costs.
……………………………….. J.
(V. RAMASUBRAMANIAN)
……………………………….. J.
(PANKAJ MITHAL)
New Delhi;
May 18, 2023.
23