Suit Property Cannot Continue As Wakf Irrespective Of Its Use Or Disuse As Burial Ground In Absence Of Evidence: SC

While finding that there is no evidence on record that before issuing notification under Section 5 of the Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the 1954 Act, the Supreme Court in a most learned, laudable, landmark and latest judgment titled Salem Muslim Burial Ground Protection Committee vs State of Tamil Nadu And Ors in Civil Appeal Nos. 7467-7470 of 2014 in the exercise of its civil appellate jurisdiction that was pronounced as recently as on May 18, 2023 has held that in the absence of such a material, the mere issuance of the notification under Section 5 of the 1954 Act would not constitute a valid wakf in respect of the suit land. Therefore, while stating that the Notification dated Apr 29, 1959 is not conclusive proof of the fact that the suit land is a wakf property, a two Judge Bench of Hon’ble Mr Justice V Ramasubramaniam and Hon’ble Mr Justice Pankaj Mithal observed in no uncertain terms that, "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." The Bench underscored that there is even no concrete evidence on record to prove that the suit land prior to the year 1900 or 1867 was being used as a burial ground and 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.

At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Pankaj Mithal for a Bench of the Apex Court comprising of Hon’ble Mr Justice V Ramasubramaniam and himself sets the ball rolling by first and foremost putting forth in para 1 that, "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."

As we see, the Bench then states in para 2 that, "The controversy in the present appeals centers around land in Zamin Survey Nos. 5105 and 5108 in Salem Zameen Estate which corresponds 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.S 2210 has been allotted New Town Survey, i.e. T.S. Nos. 113 & 70."

For clarity, the Bench specifies in para 3 that, "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"."

To put things in perspective, the Bench envisages in para 4 that, "The appellant herein is Salem Muslim Burial Ground Protection Committee, Salem (hereinafter referred to as "appellant Committee"). 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."

As things stand, we see that the Bench then points out in para 5 that, "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. Accordingly, Assistant Settlement Officer, Salem (hereinafter referred to as "ASO") in March, 1959 initiated inquiry under Section 11(a) of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948 (hereinafter referred to as "Abolition Act, 1948")."

While illustrating, the Bench mentions in para 6 that, "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 which as per Madras Estate Land Act, 1908 (hereinafter referred to as "Estate Act") 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."

Do note, the Bench notes in para 7 that, "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 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."

Further, the Bench mentions in para 8 that, "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."

Furthermore, the Bench mentions in para 9 that, "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."

Be it noted, the Bench notes in para 10 that, "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 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."

It is worth noting that the Bench notes in para 28 that, "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."

It cannot be glossed over that the Bench points out in para 29 that, "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 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."

Most significantly, the Bench holds in para 36 that, "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."

Equally significant is what is then pointed out in para 42 that, "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."

While elaborating more, the Bench then observes in para 43 that, "The Principle of Acquiescence has been explained in Black’s Law Dictionary, 9th Edition, as a person’s tacit or passive acceptance or implied consent to an act. It has been described as a principle 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 Bench of the Supreme Court in Pannalal Binjraj v. Union of India AIR 1957 SC 397, 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."

Needless to say, the Bench states in para 44 that, "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."

As a corollary, the Bench observes in para 45 that, "The position in the case at hand is similar and identical as in the above referred case and as such the appellant Committee 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."

Finally, the Bench concludes by holding in para 46 that, "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."

In conclusion, we see that the Apex Court has made it quite abundantly clear that the suit property cannot continue as wakf irrespective of its use or disuse as burial ground in absence of evidence. This is the real crux of this notable judgment. No denying it!