Supreme Court Upholds Land Rights: Salem Muslim Burial Ground Case (2023)

Date of the Judgment: 18 May 2023

Citation: 2023 INSC 551

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

Can a property be declared as Wakf property based on historical records alone, even if it hasn’t been used for its intended purpose for a long time? The Supreme Court of India recently addressed this question, along with the question of whether a High Court can direct the government to consider claims under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act, 1948, while dismissing a writ appeal. The Court, in this case, had to determine the validity of claims over a piece of land in Salem, Tamil Nadu, which was historically recorded as a burial ground. The bench comprised Justices V. Ramasubramanian and Pankaj Mithal, with the majority opinion authored by Justice Pankaj Mithal.

Case Background

The case revolves around land in Salem, Tamil Nadu, specifically Zamin Survey No. 5108 (corresponding to O.T.S. No. 2210, and now T.S. Nos. 113 & 70), referred to as the “suit land.” The Salem Muslim Burial Ground Protection Committee (appellant) claimed the land was a Wakf property, historically used as a burial ground. However, the land had not been used for burials since around 1867, when the municipality closed it for health reasons and provided an alternative site. Several other parties (respondents 4 to 23) claimed rights to the land, asserting they had been residing there for generations.

The primary dispute began when Perumal Chettiar claimed Ryotwari patta (land ownership rights) based on an assignment from the zamindar in 1935. Other claimants, A. Ramaswamy Chettiar and Govinda Pillai, also asserted their rights. The Assistant Settlement Officer (ASO) dismissed all claims in 1959, stating the land was communal and could not be assigned without the Collector’s declaration. This decision was upheld by the Settlement Officer and the Director of Survey & Settlement. The matter eventually reached the High Court, which also dismissed the claims, noting that the land’s character as a burial ground did not change just because it was not currently in use.

Timeline

Course of Proceedings

The Assistant Settlement Officer (ASO) dismissed all claims to the suit land, observing it was communal in nature and could not be assigned without the Collector’s declaration under Section 20A of the Madras Estate Land Act, 1908. The ASO also noted that no burials had occurred on the land for the past 60 years. The Settlement Officer and the Director of Survey & Settlement upheld this decision. The High Court, in its writ jurisdiction, also dismissed the claims, stating that the land’s character as a burial ground did not change due to disuse. However, a Division Bench of the High Court, while dismissing the writ appeals, directed the government to consider the claimants’ rights under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act, 1948. This direction led to the Director of Survey and Settlement accepting the claims of A. Ramaswamy Chettiar and others. The appellant committee challenged this, leading to further rounds of litigation, culminating in the present Supreme Court appeal.

Legal Framework

The case involves several 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 for ryotwari lands. Ryotwari lands are defined as cultivable land in an estate, 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 deals with the rights of individuals who have been in possession of land and made improvements on it.
• Section 20A of the Madras Estate Land Act, 1908: This section requires a declaration from the Collector before assigning communal land.
• Wakf Act, 1954 and Waqf Act, 1995: These acts govern the administration and management of wakf properties. They stipulate the procedure for declaring a property as a wakf, which includes a preliminary survey, settlement of disputes, and notification in the official gazette.

The legal framework also includes the concept of a Wakf under Muslim law, which can be created by express dedication or inferred from long usage for religious or charitable purposes. Once a Wakf is created, the property is considered to be vested in Allah and is unalienable.

Arguments

The appellant, Salem Muslim Burial Ground Protection Committee, argued that:

• Once a Wakf, always a Wakf: The appellant contended that the suit land was historically a burial ground and therefore a Wakf property, and its nature could not be altered by disuse.
• The Division Bench of the High Court exceeded its jurisdiction: The appellant argued that the High Court, while dismissing the writ appeals, could not have directed the government to consider claims under Section 19A of the Abolition Act.

The respondents (claimants) argued that:

• The suit land was not a Wakf property: They contended that the land had not been used as a burial ground for a long time and was not a Wakf by dedication or user.
• The notification declaring the land as Wakf was invalid: They argued that the notification was issued without following the procedure under the Wakf Act, 1954, which requires a preliminary survey.
• The High Court’s direction was valid: They argued that the High Court’s direction to consider their claims under Section 19A was appropriate.

The appellant relied on the principle that a wakf once created is always a wakf and cannot be altered due to disuse. They also argued that the High Court acted beyond its jurisdiction by directing the government to consider claims under Section 19A of the Abolition Act, especially after dismissing the writ appeals. The respondents, on the other hand, emphasized the lack of evidence of the suit land being used as a burial ground recently and the failure to follow due process under the Wakf Act when declaring it a wakf property. They also argued that the High Court’s direction was a fair consideration of their rights under Section 19A of the Abolition Act.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the suit land is a Wakf property by dedication or user.
2. Whether the notification dated 29.04.1959 declaring the suit land as Wakf property is valid.
3. Whether the Division Bench of the High Court could have directed for consideration of the claims of the respondents under Section 19A of the Abolition Act while dismissing the writ appeals.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

The Court also considered the following legal provisions:

• Section 11(a) of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act, 1948: This section was considered in the context of the claims for ryotwari patta.
• Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act, 1948: The court examined the High Court’s direction to consider claims under this section.
• Section 20A of the Madras Estate Land Act, 1908: This section was cited in the context of the ASO’s initial decision that the land could not be assigned without the Collector’s declaration.
• Wakf Act, 1954 and Waqf Act, 1995: The court extensively discussed the procedure for declaring a property as a wakf under these acts.

Judgment

How each authority was viewed by the Court?

• The Supreme Court referred to M. Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and Ors. [(2020) 1 SCC 1]* to explain that a Wakf can be created by express dedication or inferred from long usage but found that neither was applicable in this case.
• The Court cited Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. Etc. [AIR 2002 SC 402]* to emphasize the need for the Wakf Board to follow the prescribed procedure under the Wakf Act before notifying wakfs.
• The Court referred to Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal [(2017) 13 SCC 174]* to highlight that a survey by the Survey Commissioner is essential before declaring a property as wakf.
• The Court relied on State of Andhra Pradesh Vs. A.P. State Wakf Board and Ors. [2022 SCC OnLine SC 159]* to clarify that a notification published at the instance of the Wakf Board is not binding on the State Government if the procedure under Section 4 of the Wakf Act has not been followed.
• The Court cited Pannalal Binjraj v. Union of India [AIR 1957 SC 397]* to apply the principle of estoppel, stating that a party cannot challenge an order after submitting to its jurisdiction and participating in the proceedings.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the lack of evidence supporting the claim that the suit land was a Wakf property. The Court emphasized that the land had not been used as a burial ground for a long time, and there was no proof of express dedication for religious or charitable purposes. The Court also noted the procedural lapses in declaring the land as a Wakf property, highlighting the absence of a preliminary survey as required under the Wakf Act, 1954. Additionally, the Court underscored the appellant’s acquiescence to the High Court’s direction by participating in subsequent proceedings without protest, thereby invoking the principle of estoppel.

Logical Reasoning:

The Court rejected the argument that the land was a Wakf property, emphasizing the lack of evidence of dedication or long usage. The Court also found that the notification declaring the land as Wakf was invalid due to procedural lapses. The Court further held that the appellant was estopped from challenging the High Court’s direction due to their participation in subsequent proceedings. The Court stated 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.”
• “In the case at hand, there is no material or 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 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.”
• “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.”

There were no dissenting opinions in this case. The Court’s decision was unanimous.

Key Takeaways

• A property cannot be declared a Wakf property solely based on historical records if it has not been used for its intended purpose for a long time and there is no evidence of dedication.
• The procedure under the Wakf Act, 1954, including a preliminary survey, must be followed before declaring a property as a Wakf.
• A party that participates in proceedings without protest is estopped from challenging the jurisdiction of the court at a later stage.
• The principle of acquiescence and estoppel can prevent a party from raising objections to an order they have previously accepted.

Directions

The Supreme Court did not issue any specific directions other than dismissing the appeals. The order of the High Court was upheld.

Development of Law

The ratio decidendi of this case is that a property cannot be deemed a Wakf solely based on historical records or past use if it has not been used as such for a long time and there is no evidence of dedication. Additionally, the judgment reinforces the importance of following the prescribed procedures under the Wakf Act, 1954, for declaring a property as Wakf and upholds the principle of acquiescence and estoppel in legal proceedings. This judgment clarifies that mere historical records are insufficient to establish a Wakf, and proper procedure under the Wakf Act must be followed.

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 absence of evidence of express dedication, the lack of recent usage as a burial ground, and the procedural lapses in declaring the land as a Wakf property. The Court also held that the appellant was estopped from challenging the High Court’s direction due to their participation in subsequent proceedings without protest. The judgment underscores the importance of adhering to legal procedures and the principle of acquiescence in legal proceedings.