In C.A.Nos. 7467-7470 OF 2014-SC- Mere issuance of notification under Wakf Act would not constitute valid wakf in respect of suit land as conducting surveys before declaration of wakf property is sine qua non, rules Top Court
Justices V.Ramasubramanian & Pankaj Mithal [18-05-2023]

Read Judgment: SALEM MUSLIM BURIAL GROUND PROTECTION COMMITTEE Vs. STATE OF TAMIL NADU AND ORS 

Tulip Kanth

New Delhi, May 20, 2023:  While observing 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 Supreme Court has dismissed Salem Muslim Burial Ground Protection Committee’s appeal.

“Under the Muslim law, a wakf can be created in several ways but primarily by permanent dedication of any movable and 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”, the Division Bench of Justice V.Ramasubramanian and Justice Pankaj Mithal affirmed.

The old records revealed 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. Claimants-respondents set up their claims in the suit land. Accordingly, Assistant Settlement Officer, Salem dismissed the claims of all parties observing that the suit land was communal in nature and any assignment of the said land was not possible without the declaration of the Collector under Section 20A of the Madras Estate Land Act, 1908

The revision petitions & the Writ Petitions of the claimants were dismissed. Thereafter, on the Orders of the Division Bench, the Director of Survey and Settlement initiated proceedings under Section 19A of the Tamil Nadu Estate (Abolition & Conversion into Ryotwari) Act 1948 and finally accepted the claims set up by claimants.

Aggrieved by such decision, the appellant- Salem Muslim Burial Ground Protection Committee preferred revision before the Commissioner of Land Revenue, Madras. The Committee’s appeal was allowed but on challenge, the respondents-claimants’ appeal was accepted. Thus the Committee approached the Top Court.

It was the Committee’s case that once a property is a wakf, it is always a wakf. It was submitted that the claims of claimants respondents in the suit land having been dismissed by the ASO and by the High Court in writ jurisdiction, the Division Bench could have either dismissed or allowed the writ appeals but could not have directed for consideration of the claims under Section 19A.

Referring to the judgment of the Constitution Bench in Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and Ors., the Bench opined that 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.

The Bench opined that the suit land was not proved to be a wakf land by long usage also and there was no evidence to prove creation of a wakf of the suit land either by dedication or by usage.

Referring to the Wakf Acts of 1954 & 1995, the Bench noted that the notification under Section 5 of both the Acts declaring the list of the wakfs can only be published after completion of the process as laid down under Section 4, 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 qua non.

Considering the fact that there was no material or evidence on record that before issuing notification under Section 5, any procedure or the survey was conducted as contemplated, the Bench said, “...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.”

Noting that the Wakf Board is a statutory authority under the Wakf Act and the official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the Bench opined that 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.

As per the Bench, once the appellant Committee had accepted the order and had participated in the proceedings, it was estopped in law from questioning the jurisdiction of the court in issuing such a direction.

“...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”, the Bench said while dismissing the petition.