NDLI: Salem Muslim Burial Ground Protection Committee Vs. State of Tamil Nadu and Ors

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Wakf – Suit land was declared as wakf property by Single Judge – Order set aside by Division Bench
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Tamil Nadu Estates (abolition and Conversion Into Ryotwari) Act, 1948 (26 of 1948) Madras Estates Land Act, 1908 (1 of 1908) Wakf Act, 1955 (43 of 1995)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Wakf – Suit land was declared as wakf property by SingleJudge – Order set aside by Division Bench – Held: Under theMuslim law, a wakf can be created in several ways but primarilyby permanent dedication of any movable and immovable propertyby a person professing Islam for any purpose recognized byMuslim law as pious, religious or charitable purpose and in theabsence of such dedication, it can be presumed to have comeinto existence by long use – In the present case, on the admittedfacts, the wakf by dedication of the suit land is ruled out –Further, there is even no concrete evidence on record to provethat the suit land prior to the year 1900 or 1867 was actuallybeing used as a burial ground (kabristan) – Therefore, the allegeduse of the suit land as burial ground prior to 1900 or 1867 isnot sufficient to establish a wakf by user in the absence ofevidence to show that it was so used – Thus, it cannot constitutea wakf by user also – In the absence of any evidence of validcreation of a wakf in respect of the suit property either bydedication or by usage, it cannot be recognized as a wakf so asto allow it to be continued as a wakf property irrespective of itsuse or disuse as a burial ground – Appeals lack merit and aredismissed – Tamil Nadu Estate (Abolition & Conversion intoRyotwari) Act 1948 – ss.11(a), 19A – Waqf Act, 1955 – ss.4, 5 –Madras Estate Land Act, 1908 – s.20A.Wakf Act, 1954 – ss.4, 5 – Waqf Act, 1995 – Notification u/s.5 of both the Acts – Held: Notification u/s.5 of both the Actsdeclaring the list of the wakfs shall only be published aftercompletion of the process as laid down u/s.4 of the Acts – Conductingof the surveys before declaring a property a wakf property is a sine qua non – In the instant case, there is no evidence on record thatbefore issuing notification u/s.5 of the 1954 Act, any procedure orthe survey was conducted as contemplated by s.4 – In the absenceof such a material, the mere issuance of the notification u/s.5 of theAct would not constitute a valid wakf in respect of the suit land –Therefore, the notification dtd. 29.04.1959 is not a conclusive proofof the fact that the suit land is a wakf property.Wakf Act, 1954 – Notification published in the official Gazette– State Government, if bound by it – Held: No – Wakf Board is astatutory authority under the Wakf Act – Therefore, the officialGazette is bound to carry any notification at the instance of theWakf Board but, the State Government is not bound by such apublication of the notification published in the official Gazette merelyfor the reason that it has been so published.Doctrines/Principles – Principle of Acquiescence – Estoppel– Plea of the appellant-Committee that while hearing the writ appeal,the High Court was only obliged to either allow the writ petition ordismiss it and having decided to dismiss it, it could not have issueddirection to the Government to consider claims u/s. 19A of theAbolition Act – Held: Appellant was never aggrieved by such adirection as it never questioned or challenged it in any higher forum– It appears to have accepted the said decision and the directioncontained therein by participating in the subsequent proceedingsbefore the Director of Survey and Settlement without any protest –After having lost in proceedings before the Director of Survey andSettlement, the appellant Committee preferred a revision before theBoard of Revenue which was also dismissed – In the revision alsono argument was raised that the directions issued by the High Courtare without jurisdiction and not binding upon it – Acquiescence isfollowed by estoppel – Once an order is passed against a personand he submits to the jurisdiction of the said order without raisingany objection or complies with it, he cannot be permitted to challengethe said order, subsequently, when he could not succeed – Once theappellant Committee accepted the order and participated in theproceedings, it is estopped in law from questioning the jurisdictionof the court in issuing such a direction – Tamil Nadu Estate (Abolition& Conversion into Ryotwari) Act 1948 – s.19A.
Judge	Hon'ble Mr. Justice Pankaj Mithal
Neutral Citation	2023 INSC 551
Petitioner	Salem Muslim Burial Ground Protection Committee
Respondent	State Of Tamil Nadu And Ors
SCR	[2023] 7 S.C.R. 388
Judgement Date	2023-04-18
Case Number	7467-7470

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