1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7467-7470 OF 2014

SALEM MUSLIM BURIAL GROUND

PROTECTION COMMITTEE …APPELLANT

VERSUS

STATE OF TAMIL NADU AND ORS. …RESPONDENTS

PANKAJ MITHAL, J.

1. 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.

2. 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.

2

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.

3. 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”.

4. The appellant herein is Salem Muslim Burial Ground Protection

Committee, Salem

1. 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.

1

hereinafter referred to as “appellant Committee”

3

5. 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

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 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

4 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.

7. 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

2 hereinafter referred to as “ASO”

3

hereinafter referred to as “Abolition Act, 1948”

4

hereinafter referred to as “Estate Act”

4

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.

8. 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.

9. 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.

10. 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

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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.

11. Both the claimants - Perumal Chettiar and A. Ramaswamy

Chettiar filed separate revisions against the above order of the

ASO before the Settlement Officer, Salem. The revisions were

dismissed by the Settlement Officer on the same reasoning as

that of ASO vide order dated 03.10.1959. It was held that the

claimants are not entitled to ryotwari patta on the “suit land”.

12. The orders of the ASO and the Settlement Officer were taken up

by means of revisions before the Director of Survey & Settlement

by the above two claimants respondents, but even those

revisions came to be dismissed on 31.01.1960. Subsequently,

the revision petitions before the Board of Revenue were also

dismissed. Aggrieved by the above orders starting from that of

the ASO, Settlement Officer, Director of Survey & Settlement

and Board of Revenue, writ petitions were filed by different

claimants in respect of the “suit land”, including writ petition

Nos.903 and 1258 of 1960 by A.Ramaswamy Chettiar and

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Perumal Chettiar respectively and both of them claimed ryotwari

patta under Section 11 of the Abolition Act in respect of the “suit

land”.

13. The writ court by means of a common judgment and order dated

03.05.1962 dismissed all the petitions holding that the

character of the land once burial ground would not change only

for the reason that it had not been used for burial purposes

since 1900 or that no burial has taken 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 have been on

part of T.S. 2253 and the two sites stand separated by a trunk

road.

14. Not satisfied by the decision of the writ court, the claimant

A.Ramaswamy Chettiar along with some others preferred writ

appeals before the Division Bench. The writ appeals were

dismissed vide judgment and order dated 12.01.1965 but with

the following observation:

“… in each of these cases, we

would commend the claim of the

concerned petitioner to a recognition by

government, of his right to continue in

possession under section 19A of

Madras Act 26 of 1948, subject, of

course to all consideration that could be

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urged to the contrary effect by the

Muslim Burial Ground Committee, or

any person interested in claiming, even

at present time the communal user or

nature of the property in question.

Further, our remarks are subject to the

condition that the petitioners claiming

under section 19A of Act 26 of 1948 are

bonafide alienees for value, who have

taken such properties and put them to

private uses, in the genuine belief that

they were dealing with land in the

private ownership of vendors from the

Zamindar and not with communal land.

The erection of buildings thereon by

these persons may also be considered

as evidence of bonafides and a fact

entitling them, on equitable

considerations to the benefit of action

under section 19A of the Act.”

15. The above observation and direction of the Division Bench is the

bone of contention leading to the present appeals.

16. The aforesaid direction of the Division Bench was not

questioned by any party in any higher forum or even otherwise

rather the appellant Committee herein accepted the said order

by participating in the consequential proceedings without any

reservation.

17. The Director of Survey and Settlement on the strength of the

above directions of the Division Bench of the High Court

initiated proceedings under Section 19A of the Abolition Act and

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finally accepted the claims set up by claimants A.Ramaswamy

Chettiar and others vide order dated 31.01.1975. It was held

that they have purchased the “suit land” for valuable

consideration from persons who occupied the “suit land” for a

very long time and that it was not required for the purposes of

burial.

18. Aggrieved by the decision of the Director of Survey and

Settlement conferring rights upon claimants under Section 19A

of the Abolition Act, the appellant Committee preferred revision

before the Commissioner of Land Revenue, Madras. It was

dismissed on 20.04.1976. The Revenue department issued

G.O.Ms.No.453 dated 14.03.1990, accepting and confirming the

order of the Director of Survey and Settlement allowing the

claimants respondents to remain in possession over the “suit

land”. At this stage, the appellant Committee invoked the writ

jurisdiction of the High Court by filing writ petition No.6300 of

1990 challenging the Government order issued by the Revenue

department. Another writ petition to the same effect was

preferred by A.Annamalai and 13 others. It was contended that

the Commissioner of Land Revenue had dismissed the revision

against the order of the Director of Survey and Settlement

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without affording proper opportunity of hearing to them. The

said writ petitions were dismissed whereupon the appellant

Committee filed writ appeals which were allowed on 08.07.1999

and the matter was remitted to the Government to rehear it and

to redecide it within three months.

19. Consequent to the above directions, the matter was

reconsidered at the level of the Government and G.O.Ms.No.676

dated 23.12.1999 was issued observing that since the “suit

land” vests in the Government, it is open for it to grant

permission to the claimant respondents under Section 19A of

the Abolition Act to remain in possession of the same.

20. The appellant Committee again preferred writ petition

challenging 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 order dated 29.04.2005 on two counts: (i) that

the “suit land” is notified to be a wakf property and as such it

cannot be alienated in exercise of powers under Section 19A of

the Abolition Act; and (ii) even if Section 19A is exercised no

rights could be conferred upon the claimants respondents in the

absence of any material to show that they were put in

possession by the land holders.

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21. The claimant respondents, aggrieved by the aforesaid judgment

and order of the writ court filed writ appeal Nos.1327 and 1348

of 2005 respectively which has been allowed by the impugned

judgment and order 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 has been handed over to the Wakf

Board whereas the “suit land” (OTS 2210 now T.S. Nos. 113 and

70) is merely recorded as a rudra bhumi with no sign of muslim

burial and as such has rightly not been held to be a wakf

property in the order dated 31.01.1975 of the Director of Survey

and Settlement. There is no material on record to establish any

dedication of the suit land as a wakf property and that the

notification dated 29.04.1959 regarding the “suit land” as a

wakf is unacceptable; first for the reason that the said

notification was not pressed by the appellant Committee till

1999 before any authority in any case; and secondly, for reason

that no evidence was brought on record to establish that any

preliminary survey as contemplated under Section 4 of the Wakf

Act, 1954 was conducted before issuing the said notification

under Section 5 of the Wakf Act.

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22. It is in the above background that these appeals have been

preferred and have come up for consideration before us.

23. We had heard Mrs. June Chaudhari, learned senior counsel for

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

non burial of the dead bodies on the “suit land” over the last 60

years or so would not alter its nature so as to confer any right

upon the claimants respondents much less that of ryotwari

patta in exercise of power under Section 19A of the Abolition

Act; secondly, the claims of claimants respondents in the suit

land having been dismissed by the ASO , Settlement Officer,

Director of Survey and Settlement, Board of Revenue and by the

High Court in writ jurisdiction, the Division Bench of the High

Court in exercise of its appellate power could have either

dismissed or allowed the writ appeals but could not have

directed for consideration of the claims under Section 19A of the

Abolition Act that too while dismissing the writ appeals.

25. Under the Muslim law, a wakf can be created in several ways

but primarily by permanent dedication of any movable and

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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.

26. Ordinarily, a wakf is brought into existence by any express

dedication of movable or immovable property for religious or

charitable purpose as recognized by Muslim Law. Once such a

dedication is made, the property sought to be dedicated gets

divested from the wakif, i.e., the person creating or dedicating it

and vests in the Almighty Allah. The wakf so created acquires a

permanent nature and cannot be revoked or rescinded

subsequently. The property of the wakf is unalienable and

cannot be sold or transferred for private purpose.

27. The dedication resulting in 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. In

this regard, reference may be had to the Constitution Bench

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decision of this Court in M. Siddiq (D) thr. L.Rs. Vs. Mahant

Suresh Das and Ors.

5

28. 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.

29. 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

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(2020) 1 SCC 1

14

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.

30. The another limb of the argument is that the suit land has been

declared to be a wakf property vide notification dated

29.04.1959. In this regard, it has to be noted that such a

declaration has to be in consonance with the provisions of the

Wakf Act, 1954 or the Waqf Act, 1995. Both the aforesaid Acts

lay down the procedure for issuing notification 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

conducted and the Survey Commission shall, after such inquiry

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as may be deemed necessary, submit its report to the State

Government about certain fact ors enumerated therein

whereupon the State Government by a notification in the official

Gazette direct for a second survey to be conducted. Once the

above procedure of survey is completed and the disputes arising

thereto have been settled, on receipt of the report, the State

Government shall forward it to the Wakf Board. The Wakf Board

on examining the same shall publish the list of wakfs in

existence with full particulars in the official Gazette as

contemplated under Section 5 of the Act. Similar provisions

exist under the Waqf Act, 1995.

32. A plain reading of the provisions of the above two Acts would

reveal that the notification under Section 5 of both the Acts

declaring the list of the wakfs shall only be published after

completion of the process as laid down under Section 4 of the

above Acts, 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. In the case at hand, there is no material or evidence on

record that before issuing notification under Section 5 of the

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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. 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.

33. In Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by

Lrs. Etc.

6, it was observed that the Wakf Board should follow

the procedure as required under Section 4, 5 and 6 or Section

27 of the Wakf 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 by the Survey

Commissioner and preparing a report

and forwarding the same to the State or

the Wakf Board precedes the final act of

notifying such list in the Official Gazette

by the State under the 1995 Act (it was

by the Board under the 1954 Act). As

mentioned supra, the list would be

6

AIR 2002 SC 402

7

(2017) 13 SCC 174

17

prepared by the Survey Commissioner

after making due enquiry and after

valid survey as well as after due

application of mind. The enquiry

contemplated under sub-section (3) of

Section 4 is not merely an informal

enquiry but a formal enquiry to find out

at the grass root level, as to whether the

property is a wakf property or not.

Thereafter the Wakf Board will once

again examine the list sent to it with due

application of its mind and only

thereafter the same will be sent to the

Government for notifying the same in

the Gazette….”

35. It may be noted that Wakf Board is a statutory authority under

the Wakf Act. Therefore, the official Gazette is bound to carry

any notification at the instance of the Wakf Board but

nonetheless, 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. In State of

Andhra Pradesh Vs. A.P. State Wakf Board and Ors.

8, this

Court consisting of one of us (V. Ramasubramanian, J. as a

Member) held that the publication of a notification in the official

Gazette has a presumption of knowledge to the general public

just like an advertisement published in the newspaper but such

a notification published at the instance of the Wakf Board in the

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2022 SCC OnLine SC 159

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State Gazette is not binding upon the State Government. It

means that the notification, if any, published in the official

Gazette at the behest of the Wakf Act giving the lists of the wakfs

is not a conclusive proof that a particular property is a wakf

property especially, when no procedure as prescribed under

Section 4 of the Wakf Act has been followed in issuing the same.

36. 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.

37. Now coming to the second argument of learned counsel for the

appellate Committee that the High Court hearing the writ appeal

was only obliged to either allow the writ petition or to dismiss it

and when it had decided to dismiss it, it had no authority of law

to issue any direction to the Government to consider claims

under Section 19A of the Abolition Act.

38. The argument, though in the first blush, appears to be attractive

but upon deeper scrutiny is found to be bereft of merits for two

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reasons; first, the appellant Committee was never aggrieved by

such a direction as it never questioned or challenged it in any

higher forum; secondly, the appellant Committee appears to

have accepted the said decision and the direction contained

therein by participating in the subsequent proceedings before

the Director of Survey and Settlement without any protest or

taking any objection in this regard. In such an event and

participation of the appellant Committee in the consequential

proceedings debars it from turning around so as to agitate a

point to which it had acquiesced and had virtually given up or

accepted.

39. To bring home the point that the appellant Committee had

participated in the proceedings before the Director of Survey and

Settlement pursuant to the directions of the Division Bench of

the High Court contained in the judgment and order dated

12.01.1965, it is relevant to reproduce paragraph 10 of the order

of the Director of Survey and Settlement dated 31.01.1975

whereunder the claimants respondents have been granted relief

in exercise of powers under Section 19A of the Abolition Act:

“The case was posted to 11.00

A.M on 17.1.75. The Secretary of the

Muslim Burial ground protection

committee who was present then said

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that his lawyer is attending the case. He

never request any adjournment. But the

lawyer did not attend till 12:00 noon.

The case was heard by me and th e

Secretary was also present. At 1.50 P.M

the advocate for the Muslim Burial

ground protection committee was

present and filed necessary vakalat. All

of a sudden he requested adjournment

and he was informed that no

adjournment would be given at this

state since the case was heard in the

presence of the parties who were

present in the morning. He wanted to

file written objection statement and was

permitted to file it before the rising of the

court; at 4 P.M on 17.1.75; the secretary

filed his written objection statement.”

40. After having lost in proceedings before the Director of Survey

and Settlement, the appellant Committee had preferred a

revision before the Board of Revenue which was also dismissed.

In the revision also no argument was raised that the directions

issued by the High Court are without jurisdiction and not

binding upon it.

41. The proceedings before the Director of Survey and Settlement

and the Board of Revenue as aforesaid clearly indicate that the

appellant Committee had accepted the directions of the High

Court and in pursuant thereof had participated in the

proceedings without any hitch and as such disentitled itself

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from raising any objection in this regard at such a belated stage

for the first time before this Court.

42. 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 jurisdi ction 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.

43. The Principle of Acquiescence has been explained in Black’s Law

Dictionary, 9

th Edition, as a person’s tacit or passive acceptance

or implied consent to an act. It has been described as a principle

22

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

9, 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.

44. 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.

45. The position in the case at hand is similar and identical as in

the above referred case and as such the appellant Committee

9

AIR 1957 SC 397

23

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.

46. 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.

……………………………….. J.

(V. RAMASUBRAMANIAN)

……………………………….. J.

(PANKAJ MITHAL)

New Delhi;

May 18, 2023.