Conducting Survey Is Prerequisite Before Declaring Property As Wakf: Supreme Court

While dismissing the appeal seeking recognition of the land as wakf property,the Supreme Court observed that conducting the survey under Section 4 of the Wakf Act,1954 before declaring a property as “wakf property” is a sine qua non.

The bench of Justice Pankaj Mithal and Justice V.Ramasubramanian said, “In the absence of such a material( survey conducted under Section 4), the mere issuance of the notification under Section 5 of the Act would not constitute a valid wakf in respect of the suit land.”

Facts In Brief

The Court was hearing the appeal filed by Salim Muslim Burial Ground Protection Committee against the judgement of Division bench of Madras High Court wherein the Court had set aside the order of single judge declaring the suit land as wakf property.

According to old records the suit land at one point of time was used as a burial ground paramboke but the municipality ordered its closure for health reasons in around 1867 and an alternative site was allotted for use as a burial ground.

The respondent claimants, 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.

In 1975, the Director of Survey and Settlement initiated proceedings under Section 19A of the Abolition Act, and it was held that the claimants had purchased the suit land for valuable consideration from persons who had occupied the suit land for a significant period. It was also determined that the land was not necessary for burial purposes.

Aggrieved by the decision, the appellant Committee preferred a revision before the Commissioner of Land Revenue, Madras, which was dismissed in 1976.

In 1990, the Revenue department issued a G.O, accepting and confirming the order of the Director of Survey and Settlement, which allowed the claimant respondents to remain in possession of the suit land.

Thereafter, the appellant Committee filed a writ petition before the High Court challenging the Government order issued by the Revenue department.

It was contended that the Commissioner of Land Revenue had dismissed the revision against the order of the Director of Survey and Settlement without affording a proper opportunity of hearing. The writ petitions were subsequently dismissed, after which the appellant Committee filed writ appeals.

The appeal was allowed in 1999, and the matter was remitted to the Government for a rehearing and a redetermination to be completed within three months.

Consequent to the above directions, the matter was reconsidered at the level of the Government, and a G.O. was issued, observing that since the suit land vests in the Government, it is open for the government to grant permission to the claimant respondents under Section 19A of the Abolition Act to remain in possession of the same.

The appellant Committee again filed a fresh writ petition in 2000, challenging the above-mentioned G.O. The writ petition was allowed in 2005 on two counts: (i) that the suit land was notified to be a wakf property and, therefore, it cannot be alienated through the 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 claimant respondents in the absence of any material to show that they were put in possession by the landholders.

The claimant, aggrieved by the aforementioned judgment and order of the court, filed an appeal. The appeal was allowed by the impugned judgment in 2009, setting aside the order of the writ court.

The judgment held that the suit land is merely recorded as a rudra bhumi with no sign of Muslim burial. Therefore, it has rightly not been held to be a wakf property in the order of the Director of Survey and Settlement.

It further held that the 1959 notification regarding the “suit land” as a wakf is unacceptable.

Analysis by the Court

The counsel for the appellant committee argued that once a wakf is always a wakf and, therefore, the mere non-burial of the dead bodies on the suit land over the last 60 years or so would not alter its nature.

Consequently, it would not confer any rights upon the claimant respondents, much less the right of ryotwari patta, in exercise of power under Section 19A of the Abolition Act,it was submitted.

The Court explained that a wakf is brought into existence by an express dedication of movable or immovable property for religious or charitable purposes, as recognized by Muslim Law. Once such a dedication is made, the property sought to be dedicated is divested from the wakif, i.e., the person creating or dedicating it, and vests in God.

The property of the wakf is unalienable and cannot be sold or transferred for private purposes, the Court added .

The Court noted 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 opined.

It further noted that, “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 the user, the Court said.

The Court highlighted that the alleged recording of the suit land as a “kabristan or as a burial ground” is a misnomer or a misconstruction.

The suit land, if at all, came to be recorded as a “rudrabhoomi”, which denotes a Hindu cremation ground, and not a burial ground or a kabristan, it opined.

Therefore the Court said, “the suit land was not proved to be a wakf land by long usage also”.

On the argument that the suit land has been declared a wakf property through a notification in 1959, the Court responded that it must be noted that such a declaration has to be in consonance with the provisions of either the Wakf Act, 1954, or the Wakf Act, 1995.

The Court elaborated that the Wakf Act, 1954, stipulates that a preliminary survey of wakfs must be conducted. The Survey Commission, after conducting the necessary inquiry, is required to submit its report to the State Government regarding certain enumerated factors. Upon receiving the report, the State Government can then issue a notification in the official Gazette, directing 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 Court added.

The Wakf Board, upon 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, the Court observed.

The Court concluded that,“therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non”.

It opined that in the present case, “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”.

Therefore, the 1959 notification is not a conclusive proof of the fact that the suit land is a wakf property,the Court opined.

In light of the above, the Court held that, “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”.

The Court also rejected the argument of the counsel for the committee that the High Court, hearing the writ appeal, was only obliged to either allow the writ petition or dismiss it.

The counsel submitted that, once the High Court decided to dismiss the writ petition, it had no authority under the law to issue any direction to the Government to consider claims under Section 19A of the Abolition Act.

The Court noted that 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 objections raised 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”, the Court observed .

Dismissing the appeal, the Court held that “the appeals lack merit and are dismissed with no order as to costs.”

Case Title: Salem Muslim Burial Ground Protection Committee v.State of Tamil Nadu

Citation : 2023 LiveLaw (SC) 454

Appearances:June Chaudhari for the appellant and Narendra Kumar and. N.S. Nappinai counsel for the respondents.

Click Here To Read/Download Judgment