SALEM MUSLIM BURIAL GROUND PROTECTION COMMITTEE versus STATE OF TAMIL NADU AND ORS on 18 May 2023

1. Under challenge in these appeals is the judgment and orderpassed by the Division Bench of the High Court of Judicature at Madrasallowing the writ appeals whereby and wherein the judgment and orderof the learned Single judge dated 29.04.2005 declaring the suit land asHwakf property has been set aside.

2. The controversy in the present appeals centers around land inZamin Survey Nos. 5105 and 5108 in Salem Zameen Estate whichcorresponds to O.T.S. Nos. 2253 and 2210 respectively. The O.T.S.2253 has been allotted New Town Survey No. 1 (T.S. No.1) and O.T.S2210 has been allotted New Town Survey, i.e. T.S. Nos. 113 & 70.

3. In the present appeals, we are only concerned with the ZaminSurvey No.5108 (O.T.S.2210, now T.S. Nos.113 & 70) only whichhenceforth shall be described as “suit land”.

4. The appellant herein is Salem Muslim Burial Ground ProtectionCommittee, Salem[1]. The State of Tamil Nadu (Revenue Department) isrespondent No.1, and respondent Nos.2 and 3 are Commercial Taxesand Religious Endowments and the Director of Survey and SettlementOffice respectively, who are formal parties. Respondent Nos.4 to 23are the claimants, who alleged that they are residing over the “suit land”and are the settlers thereon from times immemorial having acquiredrights over it through their predecessors-in-interest. The old records revealthat the “suit land” at one point of time was used as a burial groundparamboke but the municipality ordered its closure for health reasonssomewhere in the year 1867 and an alternative site was allotted for useas a burial ground.

5. One of the claimants respondents, Perumal Chettiar claimedRyotwari patta in the “suit land”. Three other sets of respondentsclaimants’ namely, A. Ramaswamy Chettiar, Govinda Pillai and appellantCommittee through Sri Abdul Salim Sahib also set up their claims in thesuit land. Accordingly, Assistant Settlement Officer, Salem[2 ]in March,1959 initiated inquiry under Section 11(a) of the Tamil Nadu Estate(Abolition & Conversion into Ryotwari) Act 1948[3].

6. The aforesaid Section 11 of the Abolition Act, 1948 providesthat every ryot in an estate shall with effect from the notified date, beentitled to a ryotwari patta in respect of ryotwari lands which as perMadras Estate Land Act, 1908[4] means cultivable land in an estate otherthan the private land excluding certain types of lands, such as villagesites and those set apart for common use of the villagers.

1 hereinafter referred to as “appellant Committee”

2 hereinafter referred to as “ASO”

3 hereinafter referred to as “Abolition Act, 1948”

4 hereinafter referred to as “Estate Act”

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A7. In the aforesaid inquiry initiated by the ASO under Section11(a), Perumal Chettiar claimed that the “suit land” was assigned to himby the zamindar of Salem vide Exhibit A1 dated 20.01.1935. He reliedupon Exhibits A2 and A3 which were pattas granted to him in respect ofthe suit land by the then zamindar. On the basis of the aforesaid assignmentand the pattas, he claimed himself to be in possession of the “suit land”Bever since the date of assignment and contends that the muslims havenever buried their dead bodies on the said land.

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8. Simultaneously, A.Ramaswamy Chettiar claims to havepurchased some portion of the suit land from one Ramaswami Pillai,Manickam Pillai, Subhu Pandaram and Vasudeva Chettiar for a sum ofCRs.5000/- some time in the year 1954. He asserted his claim on thebasis of mortgage deeds (Exhibits B2 to B7) executed by him in respectof the “suit land” in favour of various parties.

9. The other claimant Govinda Pillai staked his claim over the suitland, on the basis of title of his predecessors-in-interest as told to him byDhis father whereas the appellant Committee asserted that it is a burialground, and it can’t be settled with any private person.

10. The ASO vide order dated 31.03.1959 dismissed the claims ofall parties observing that the “suit land” is communal in nature and thatany assignment of the said land was not possible without the declarationEof the Collector under Section 20A of the Estate Act. The ASO furtherobserved that there had been no burials on the “suit land” for the last 60years and that there exist only 2 tombs on T.S. No.2253 and there isabsolutely no sign of any burial on the “suit land” which in fact wasnever used as a burial ground.

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11. Both the claimants - Perumal Chettiar and A. RamaswamyChettiar filed separate revisions against the above order of the ASObefore the Settlement Officer, Salem. The revisions were dismissed bythe Settlement Officer on the same reasoning as that of ASO vide orderdated 03.10.1959. It was held that the claimants are not entitled to ryotwariGpatta on the “suit land”.

12. The orders of the ASO and the Settlement Officer were takenup by means of revisions before the Director of Survey & Settlement bythe above two claimants respondents, but even those revisions came tobe dismissed on 31.01.1960. Subsequently, the revision petitions beforethe Board of Revenue were also dismissed. Aggrieved by the aboveH

orders starting from that of the ASO, Settlement Officer, Director ofSurvey & Settlement and Board of Revenue, writ petitions were filed bydifferent claimants in respect of the “suit land”, including writ petitionNos.903 and 1258 of 1960 by A.Ramaswamy Chettiar and PerumalChettiar respectively and both of them claimed ryotwari patta underSection 11 of the Abolition Act in respect of the “suit land”.

13. The writ court by means of a common judgment and orderdated 03.05.1962 dismissed all the petitions holding that the character ofthe land once burial ground would not change only for the reason that ithad not been used for burial purposes since 1900 or that no burial hastaken 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 havebeen on part of T.S. 2253 and the two sites stand separated by a trunkroad.

14. Not satisfied by the decision of the writ court, the claimantA.Ramaswamy Chettiar along with some others preferred writ appealsbefore the Division Bench. The writ appeals were dismissed vide judgmentand order dated 12.01.1965 but with the following observation:

“… in each of these cases, we would commend the claim ofthe concerned petitioner to a recognition by government, ofhis right to continue in possession under section 19A ofMadras Act 26 of 1948, subject, of course to all considerationthat could be urged to the contrary effect by the Muslim BurialGround Committee, or any person interested in claiming, evenat present time the communal user or nature of the propertyin question. Further, our remarks are subject to the conditionthat the petitioners claiming under section 19A of Act 26 of1948 are bonafide alienees for value, who have taken suchproperties and put them to private uses, in the genuine beliefthat they were dealing with land in the private ownership ofvendors from the Zamindar and not with communal land. Theerection of buildings thereon by these persons may also beconsidered as evidence of bonafides and a fact entitling them,on equitable considerations to the benefit of action undersection 19A of the Act.”

15. The above observation and direction of the Division Bench isthe bone of contention leading to the present appeals.

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A16. The aforesaid direction of the Division Bench was notquestioned by any party in any higher forum or even otherwise ratherthe appellant Committee herein accepted the said order by participatingin the consequential proceedings without any reservation.

17. The Director of Survey and Settlement on the strength of theBabove directions of the Division Bench of the High Court initiatedproceedings under Section 19A of the Abolition Act and finally acceptedthe claims set up by claimants A.Ramaswamy Chettiar and others videorder dated 31.01.1975. It was held that they have purchased the “suitland” for valuable consideration from persons who occupied the “suitland” for a very long time and that it was not required for the purposesCof burial.

18. Aggrieved by the decision of the Director of Survey andSettlement conferring rights upon claimants under Section 19A of theAbolition Act, the appellant Committee preferred revision before theCommissioner of Land Revenue, Madras. It was dismissed onD20.04.1976. The Revenue department issued G.O.Ms.No.453 dated14.03.1990, accepting and confirming the order of the Director of Surveyand Settlement allowing the claimants respondents to remain in possessionover the “suit land”. At this stage, the appellant Committee invoked thewrit jurisdiction of the High Court by filing writ petition No.6300 of 1990Echallenging the Government order issued by the Revenue department.Another writ petition to the same effect was preferred by A.Annamalaiand 13 others. It was contended that the Commissioner of Land Revenuehad dismissed the revision against the order of the Director of Surveyand Settlement without affording proper opportunity of hearing to them.The said writ petitions were dismissed whereupon the appellant CommitteeFfiled writ appeals which were allowed on 08.07.1999 and the matterwas remitted to the Government to rehear it and to redecide it withinthree months.

19. Consequent to the above directions, the matter wasreconsidered at the level of the Government and G.O.Ms.No.676 datedG23.12.1999 was issued observing that since the “suit land” vests in theGovernment, it is open for it to grant permission to the claimantrespondents under Section 19A of the Abolition Act to remain inpossession of the same.

20. The appellant Committee again preferred writ petitionHchallenging 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 orderdated 29.04.2005 on two counts: (i) that the “suit land” is notified to be awakf property and as such it cannot be alienated in exercise of powersunder Section 19A of the Abolition Act; and (ii) even if Section 19A isexercised no rights could be conferred upon the claimants respondentsin the absence of any material to show that they were put in possessionby the land holders.

21. The claimant respondents, aggrieved by the aforesaid judgmentand order of the writ court filed writ appeal Nos.1327 and 1348 of 2005respectively which has been allowed by the impugned judgment andorder 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 hasbeen handed over to the Wakf Board whereas the “suit land” (OTS2210 now T.S. Nos. 113 and 70) is merely recorded as a rudra bhumiwith no sign of muslim burial and as such has rightly not been held to bea wakf property in the order dated 31.01.1975 of the Director of Surveyand Settlement. There is no material on record to establish any dedicationof the suit land as a wakf property and that the notification dated29.04.1959 regarding the “suit land” as a wakf is unacceptable; first forthe reason that the said notification was not pressed by the appellantCommittee till 1999 before any authority in any case; and secondly, forreason that no evidence was brought on record to establish that anypreliminary survey as contemplated under Section 4 of the Wakf Act,1954 was conducted before issuing the said notification under Section 5of the Wakf Act.

22. It is in the above background that these appeals have beenpreferred and have come up for consideration before us.

23. We had heard Mrs. June Chaudhari, learned senior counselfor 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 nonburial of the dead bodies on the “suit land” over the last 60 years or sowould not alter its nature so as to confer any right upon the claimantsrespondents much less that of ryotwari patta in exercise of power underSection 19A of the Abolition Act; secondly, the claims of claimantsrespondents in the suit land having been dismissed by the ASO, Settlement AB

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AOfficer, Director of Survey and Settlement, Board of Revenue and bythe High Court in writ jurisdiction, the Division Bench of the High Courtin exercise of its appellate power could have either dismissed or allowedthe writ appeals but could not have directed for consideration of theclaims under Section 19A of the Abolition Act that too while dismissingthe writ appeals.B

25. Under the Muslim law, a wakf can be created in several waysbut primarily by permanent dedication of any movable and immovableproperty by a person professing Islam for any purpose recognized byMuslim law as pious, religious or charitable purpose and in the absenceof such dedication, it can be presumed to have come into existence byClong use.

26. Ordinarily, a wakf is brought into existence by any expressdedication of movable or immovable property for religious or charitablepurpose as recognized by Muslim Law. Once such a dedication is made,the property sought to be dedicated gets divested from the wakif, i.e.,Dthe person creating or dedicating it and vests in the Almighty Allah. Thewakf so created acquires a permanent nature and cannot be revoked orrescinded subsequently. The property of the wakf is unalienable andcannot be sold or transferred for private purpose.

27. The dedication resulting in the creation of a wakf may atEtimes in the absence of any express dedication may also be reasonablyinferred from the facts and circumstances of the case such as longusage of the property as a wakf property provided it has been put to usefor religious or public charitable purposes. In this regard, reference maybe had to the Constitution Bench decision of this Court in M. Siddiq (D)thr. L.Rs. Vs. Mahant Suresh Das and Ors.[5]F

28. In the case at hand, there is no iota of evidence from the veryinception 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.

G29. The only issue, therefore, is whether the suit land wouldconstitute a wakf by user as it was used as a burial ground which practicehas been stopped at least for the last over 60 years since the year 1900or 1867. There is even no concrete evidence on record to prove that the H5 (2020) 1 SCC 1

suit land prior to the year 1900 or 1867 was actually being used as aburial ground (kabristan). Therefore, the alleged use of the suit land asburial ground prior to 1900 or 1867 is not sufficient to establish a wakfby user in the absence of evidence to show that it was so used. Thus, itcannot constitute a wakf by user also. The alleged recording of the suitland as a kabristan or as a burial ground is a misnomer or amisconstruction inasmuch as the suit land, if at all, came to be recordedas a rudrabhoomi which denotes Hindu cremation ground and not a burialground 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 wasrecorded as a burial ground. The said land is specifically demarcatedand separated from the suit land. The said burial land had already beenhanded over to the Wakf Board and its recording as such would notimpact upon the nature of the suit land so as to constitute it to be a burialground or a kabristan. Therefore, the suit land was not proved to be awakf land by long usage also. There is no evidence to prove creation ofa wakf of the suit land either by dedication or by usage.

30. The another limb of the argument is that the suit land has beendeclared to be a wakf property vide notification dated 29.04.1959. Inthis regard, it has to be noted that such a declaration has to be inconsonance with the provisions of the Wakf Act, 1954 or the Waqf Act,1995. Both the aforesaid Acts lay down the procedure for issuingnotification 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 conductedand the Survey Commission shall, after such inquiry as may be deemednecessary, submit its report to the State Government about certain factorsenumerated therein whereupon the State Government by a notificationin the official Gazette direct for a second survey to be conducted. Oncethe above procedure of survey is completed and the disputes arisingthereto have been settled, on receipt of the report, the State Governmentshall forward it to the Wakf Board. The Wakf Board on examining thesame shall publish the list of wakfs in existence with full particulars inthe official Gazette as contemplated under Section 5 of the Act. Similarprovisions exist under the Waqf Act, 1995.

32. A plain reading of the provisions of the above two Acts wouldreveal that the notification under Section 5 of both the Acts declaring thelist of the wakfs shall only be published after completion of the process AB

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Aas laid down under Section 4 of the above Acts, which provides for twosurveys, settlement of disputes arising thereto and the submission of thereport to the State Government and to the Board. Therefore, conductingof the surveys before declaring a property a wakf property is a sine quanon. In the case at hand, there is no material or evidence on record thatbefore issuing notification under Section 5 of the Wakf Act, 1954, anyBprocedure or the survey was conducted as contemplated by Section 4 ofthe Act. In the absence of such a material, the mere issuance of thenotification under Section 5 of the Act would not constitute a valid wakfin respect of the suit land. Therefore, the notification dated 29.04.1959is not a conclusive proof of the fact that the suit land is a wakf property.CIt is for this reason probably that the appellant Committee had neverpressed the said notification into service up till 1999.

33. In Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) byLrs. Etc.[6], it was observed that the Wakf Board should follow theprocedure as required under Section 4, 5 and 6 or Section 27 of theDWakf Act before notifying the wakfs under Section 5 of the Act.

34. In Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal[7],it was observed as under:

“16. Thus, it is amply clear that the conducting of survey byEthe Survey Commissioner and preparing a report andforwarding the same to the State or the Wakf Board precedesthe final act of notifying such list in the Official Gazette bythe State under the 1995 Act (it was by the Board under the1954 Act). As mentioned supra, the list would be prepared bythe Survey Commissioner after making due enquiry and afterFvalid survey as well as after due application of mind. Theenquiry contemplated under sub-section (3) of Section 4 isnot merely an informal enquiry but a formal enquiry to findout at the grass root level, as to whether the property is awakf property or not. Thereafter the Wakf Board will onceGagain examine the list sent to it with due application of itsmind and only thereafter the same will be sent to theGovernment for notifying the same in the Gazette….”

6 AIR 2002 SC 402

H7 (2017) 13 SCC 174

35. It may be noted that Wakf Board is a statutory authorityunder the Wakf Act. Therefore, the official Gazette is bound to carryany notification at the instance of the Wakf Board but nonetheless, theState Government is not bound by such a publication of the notificationpublished in the official Gazette merely for the reason that it has been sopublished. In State of Andhra Pradesh Vs. A.P. State Wakf Boardand Ors.[8], this Court consisting of one of us (V. Ramasubramanian, J.as a Member) held that the publication of a notification in the officialGazette has a presumption of knowledge to the general public just likean advertisement published in the newspaper but such a notificationpublished at the instance of the Wakf Board in the State Gazette is notbinding upon the State Government. It means that the notification, if any,published in the official Gazette at the behest of the Wakf Act giving thelists of the wakfs is not a conclusive proof that a particular property is awakf property especially, when no procedure as prescribed under Section4 of the Wakf Act has been followed in issuing the same.

36. In view of the aforesaid facts and circumstances, we do notfind any substance in the argument that the suit land is or was a wakfproperty and as such would continue to be a wakf always. In the absenceof 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 awakf property irrespective of its use or disuse as a burial ground.

37. Now coming to the second argument of learned counsel forthe appellate Committee that the High Court hearing the writ appealwas only obliged to either allow the writ petition or to dismiss it andwhen it had decided to dismiss it, it had no authority of law to issue anydirection to the Government to consider claims under Section 19A of theAbolition Act.

38. The argument, though in the first blush, appears to be attractivebut upon deeper scrutiny is found to be bereft of merits for two reasons;first, the appellant Committee was never aggrieved by such a directionas it never questioned or challenged it in any higher forum; secondly, theappellant Committee appears to have accepted the said decision and thedirection contained therein by participating in the subsequent proceedingsbefore the Director of Survey and Settlement without any protest ortaking any objection in this regard. In such an event and participation of AB

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Athe appellant Committee in the consequential proceedings debars it fromturning around so as to agitate a point to which it had acquiesced andhad virtually given up or accepted.

39. To bring home the point that the appellant Committee hadparticipated in the proceedings before the Director of Survey andBSettlement pursuant to the directions of the Division Bench of the HighCourt contained in the judgment and order dated 12.01.1965, it is relevantto reproduce paragraph 10 of the order of the Director of Survey andSettlement dated 31.01.1975 whereunder the claimants respondents havebeen granted relief in exercise of powers under Section 19A of theAbolition Act:C

“The case was posted to 11.00 A.M on 17.1.75. TheSecretary of the Muslim Burial ground protection committeewho was present then said that his lawyer is attending thecase. He never request any adjournment. But the lawyer didnot attend till 12:00 noon. The case was heard by me andDthe Secretary was also present. At 1.50 P.M the advocatefor the Muslim Burial ground protection committee waspresent and filed necessary vakalat. All of a sudden herequested adjournment and he was informed that noadjournment would be given at this state since the case wasEheard in the presence of the parties who were present in themorning. He wanted to file written objection statement andwas permitted to file it before the rising of the court; at 4P.M on 17.1.75; the secretary filed his written objectionstatement.”

F40. After having lost in proceedings before the Director of Surveyand Settlement, the appellant Committee had preferred a revision beforethe Board of Revenue which was also dismissed. In the revision also noargument was raised that the directions issued by the High Court arewithout jurisdiction and not binding upon it.

G41. The proceedings before the Director of Survey and Settlementand the Board of Revenue as aforesaid clearly indicate that the appellantCommittee had accepted the directions of the High Court and in pursuantthereof had participated in the proceedings without any hitch and assuch disentitled itself from raising any objection in this regard at such abelated stage for the first time before this Court.H

42. The submission that the direction of the Division Bench ofthe High Court is patently without jurisdiction and the issue of jurisdictioncan be raised by the party aggrieved at any stage is also not of substanceinasmuch as it would not apply to a case where the party has succumbedto the jurisdiction by participating in the proceedings thereto takingchance of success and failure. In the present case, the appellantCommittee has not challenged the directions of the Division Bench ofthe High Court as without jurisdiction rather consented/accepted tothe said directions by participating in the consequential proceedings.Once the appellant Committee has accepted the order and hasparticipated in the proceedings, it is estopped in law from questioningthe 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 thequestion of jurisdiction at this stage.

43. The Principle of Acquiescence has been explained in Black’sLaw Dictionary, 9[th] Edition, as a person’s tacit or passive acceptance orimplied consent to an act. It has been described as a principle of equitywhich must be made applicable in a case where the order has beenpassed and complied with without raising any objection. Acquiescenceis followed by estoppel. A Constitution Bench of the Supreme Court inPannalal Binjraj v. Union of India[9], six decades ago, had an occasionto explain the scope of estoppel. It says that once an order is passedagainst a person and he submits to the jurisdiction of the said orderwithout raising any objection or complies with it, he cannot be permittedto challenge the said order, subsequently, when he could not succeed.The conduct of the person in complying with the order or submitting tothe jurisdiction of the order of the Court by participation, disentitles himto any relief before the Court.

44. It is settled that law does not permit a person to bothapprobate and reprobate as no party can accept and reject the sameinstrument. A person cannot be permitted to say at one time that thetransaction is valid and to obtain advantage under it and on the otherhand to say that it is invalid or incorrect for the purposes of securingsome other advantage.

45. The position in the case at hand is similar and identical as inthe above referred case and as such the appellant Committee having9 AIR 1957 SC 397

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Aparticipated in the subsequent proceedings pursuant to the Division Benchdecision of the High Court on being unsuccessful therein cannot be allowedto raise or dispute the validity of such an order.

46. In view of the aforesaid facts and circumstances, we do notfind any substance in either of the two points canvassed on behalf of theBappellant. The appeals as such lack merit and are dismissed with noorder as to costs.

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Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeals dismissed.

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