Supreme Court Upholds Land Rights of Settlers Over Wakf Claims in Salem Burial Ground Case (18 May 2023)

Date of the Judgment: 18 May 2023

Citation: 2023 INSC 488

Judges: V. Ramasubramanian, J. and Pankaj Mithal, J.

Can a property be declared as Wakf based on historical use alone, even if there’s no formal dedication or recent use? The Supreme Court of India recently addressed this question in a dispute over land in Salem, Tamil Nadu, which was claimed by a Muslim burial ground protection committee as Wakf property and by settlers who claimed rights through long-term possession and purchase. The court had to determine whether the land was indeed a Wakf property and if the settlers had any right to the land.

Case Background

The case revolves around a piece of land in Salem, Tamil Nadu, specifically Zamin Survey No. 5108 (now T.S. Nos. 113 & 70), referred to as the “suit land.” The Salem Muslim Burial Ground Protection Committee claimed the land as Wakf property, asserting it was historically a burial ground. Several other parties, including Perumal Chettiar, A. Ramaswamy Chettiar, and Govinda Pillai, claimed rights to the land through purchase, assignment, and long-term possession.

The historical records indicated that the “suit land” was once used as a burial ground, but the municipality ordered its closure around 1867 due to health concerns, and an alternative site was provided. Despite this, the appellant Committee claimed the land as Wakf property.

In 1959, the Assistant Settlement Officer (ASO) initiated an inquiry under Section 11(a) of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948 to determine the land rights. Perumal Chettiar claimed the land was assigned to him by the zamindar in 1935, while A. Ramaswamy Chettiar claimed to have purchased a portion of the land in 1954. The appellant Committee asserted the land was a burial ground and could not be settled with any private person.

Timeline

Course of Proceedings

The ASO dismissed all claims, stating the land was communal. This decision was upheld by the Settlement Officer and the Director of Survey & Settlement. The writ court also dismissed the petitions, stating that the land’s character as a burial ground would not change. However, the Division Bench of the High Court, while dismissing the writ appeals, directed the government to consider the claims under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948.

Following the High Court’s direction, the Director of Survey and Settlement accepted the claims of A. Ramaswamy Chettiar and others under Section 19A. The appellant Committee’s revision was dismissed by the Commissioner of Land Revenue. The Revenue Department issued an order accepting the Director’s decision. The appellant Committee then filed a writ petition challenging this order, which was initially dismissed but later remitted for reconsideration. The government then issued an order stating that the land vested with the government and could be granted under Section 19A.

The appellant Committee again challenged this order, and the writ court allowed the petition, declaring the land as Wakf property. The Division Bench of the High Court then overturned this decision, stating that the land was not proven to be Wakf property.

Legal Framework

The case primarily involves the interpretation and application of the following legal provisions:

• Section 11(a) of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948: This section states that every ryot in an estate is entitled to a ryotwari patta (land ownership document) for cultivable lands, excluding village sites and lands set apart for common use.
• Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948: This section allows the government to recognize the rights of individuals who have been in possession of land as bona fide alienees for value.
• Section 4 of the Wakf Act, 1954: This section provides for a preliminary survey of wakfs and requires the Survey Commission to submit a report to the State Government.
• Section 5 of the Wakf Act, 1954: This section mandates the State Government to publish a list of wakfs in the official Gazette after the completion of the survey process.

The Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948 aims to abolish the zamindari system and grant land rights to the actual cultivators. The Wakf Act, 1954, governs the administration and management of Wakf properties. The interplay of these acts is central to the dispute.

Arguments

Appellant Committee’s Arguments:

• The appellant Committee argued that once a property is a Wakf, it remains so always. The non-burial of dead bodies on the land for the past 60 years does not alter its nature as a Wakf property. Therefore, no rights can be conferred to the claimants under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948.
• The appellant Committee also argued that the High Court, in its appellate power, could only either dismiss or allow the writ appeals. It could not have directed the consideration of claims under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948, especially while dismissing the writ appeals.
• The appellant Committee contended that the suit land was declared to be a Wakf property vide notification dated 29.04.1959.

Respondents’ Arguments:

• The respondents argued that the “suit land” was not a Wakf property. They claimed that the land was not used as a burial ground for a long time and that it was recorded as a “rudrabhoomi” (Hindu cremation ground) not a “kabristan” (Muslim burial ground).
• The respondents contended that there was no evidence of any express dedication of the land for any pious, religious, or charitable purpose by anyone professing Islam.
• The respondents argued that even if the land was once a burial ground, it does not automatically qualify as a Wakf property without a proper dedication or long usage for religious or public charitable purposes.
• The respondents also argued that the notification dated 29.04.1959 was not valid as no preliminary survey was conducted as required under Section 4 of the Wakf Act, 1954.
• The respondents asserted that the appellant Committee had accepted the High Court’s direction to consider claims under Section 19A by participating in the subsequent proceedings without any protest.

The innovativeness of the argument from the Appellant Committee was that it argued that once a property is a Wakf, it remains so always, irrespective of its use or disuse.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether the “suit land” is a Wakf property.
2. Whether the Division Bench of the High Court could have directed for consideration of claims under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948 while dismissing the writ appeals.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

• M. Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and Ors. [(2020) 1 SCC 1]: This Constitution Bench decision discusses the creation of a Wakf, stating that it can be created by express dedication or inferred from long usage for religious or public charitable purposes.
• Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. Etc. [AIR 2002 SC 402]: This case emphasizes that the Wakf Board should follow the procedure under Sections 4, 5, and 6 or Section 27 of the Wakf Act before notifying wakfs.
• Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal [(2017) 13 SCC 174]: This case clarifies that the survey by the Survey Commissioner and the preparation of a report precede the notification of a wakf in the Official Gazette.
• State of Andhra Pradesh Vs. A.P. State Wakf Board and Ors. [2022 SCC OnLine SC 159]: This case held that the notification published in the official Gazette at the instance of the Wakf Board is not binding upon the State Government.
• Pannalal Binjraj v. Union of India [AIR 1957 SC 397]: This Constitution Bench decision explains the principle of estoppel, stating that a person cannot challenge an order after submitting to its jurisdiction.

The court also considered the provisions of the Wakf Act, 1954, specifically Sections 4 and 5, which lay down the procedure for declaring a property as a Wakf.

Judgment

How each authority was viewed by the Court?

• M. Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and Ors. [(2020) 1 SCC 1]*: The Court used this case to explain the concept of Wakf creation, emphasizing that it requires either express dedication or long usage for religious or public charitable purposes. The Court found that neither of these conditions were met in the case of the suit land.
• Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. Etc. [AIR 2002 SC 402]*: The Court relied on this case to highlight the procedural requirements under the Wakf Act, noting that the Wakf Board must follow the prescribed procedures before notifying a property as a Wakf.
• Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal [(2017) 13 SCC 174]*: The Court cited this case to underscore the importance of a proper survey before declaring a property as a Wakf. The Court found that no such survey was conducted in the present case.
• State of Andhra Pradesh Vs. A.P. State Wakf Board and Ors. [2022 SCC OnLine SC 159]*: The Court used this case to establish that a notification in the official Gazette is not binding on the State Government, especially when the procedure under Section 4 of the Wakf Act has not been followed.
• Pannalal Binjraj v. Union of India [AIR 1957 SC 397]*: The Court applied this case to explain the principle of acquiescence and estoppel, stating that the appellant Committee could not challenge the High Court’s direction after participating in the subsequent proceedings.

The Supreme Court upheld the High Court’s decision, stating that the “suit land” was not proven to be a Wakf property. The court emphasized that a Wakf can be created through express dedication or long usage for religious or charitable purposes. In this case, there was no evidence of either. The court also noted that the land was recorded as a “rudrabhoomi” and not a “kabristan,” further undermining the claim that it was a Wakf property.

The court also held that the notification dated 29.04.1959 was not valid as no preliminary survey was conducted as required under Section 4 of the Wakf Act, 1954. The court observed that the appellant Committee had accepted the High Court’s direction to consider claims under Section 19A by participating in the subsequent proceedings without any protest.

The Supreme Court observed, “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.”

The court further stated, “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.”

The court also noted, “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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Lack of Evidence for Wakf Status: The court found no evidence of express dedication or long usage of the “suit land” as a burial ground or for any other religious or charitable purpose. The land was recorded as “rudrabhoomi,” indicating a Hindu cremation ground, not a Muslim burial ground.
• Procedural Irregularities: The court noted that the notification of the land as Wakf property was not preceded by a preliminary survey as required under Section 4 of the Wakf Act, 1954.
• Acquiescence: The court held that the appellant Committee had accepted the High Court’s direction by participating in subsequent proceedings without protest, thus being estopped from challenging it later.

Key Takeaways

• A property cannot be declared as Wakf without proper evidence of dedication or long usage for religious or charitable purposes.
• The Wakf Board must follow the prescribed procedures under the Wakf Act, including conducting a preliminary survey, before notifying a property as a Wakf.
• Parties cannot challenge a court order after accepting it and participating in subsequent proceedings without protest.
• The recording of a land as a burial ground is not conclusive proof of it being a Wakf property.

Directions

The Supreme Court did not give any specific directions in this case.

Development of Law

The ratio decidendi of this case is that a property cannot be declared as a Wakf without proper evidence of dedication or long usage for religious or charitable purposes, and the Wakf Board must follow the prescribed procedures under the Wakf Act, including conducting a preliminary survey, before notifying a property as a Wakf. Additionally, the principle of acquiescence prevents parties from challenging a court order after accepting it and participating in subsequent proceedings without protest. This case reinforces the importance of procedural compliance and the need for concrete evidence in matters related to Wakf properties.

Conclusion

The Supreme Court dismissed the appeals, upholding the High Court’s decision that the “suit land” was not a Wakf property. The court emphasized the need for proper procedures under the Wakf Act and the principle of acquiescence. This decision affirms the rights of the settlers and clarifies the legal requirements for establishing a Wakf property.