SALEM MUSLIM BURIAL GROUND PROTECTION COMMITTEE versus STATE OF TAMIL NADU AND ORS

Citation: [2023] 7 S.C.R. 388 · Decided: 18-05-2023 · Supreme Court of India · Bench: V. RAMASUBRAMANIAN · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 7 S.C.R.
SALEM MUSLIM BURIAL GROUND PROTECTION
COMMITTEE
v.
STATE OF TAMIL NADU AND ORS.
(Civil Appeal Nos. 7467-7470 of 2014)
MAY 18, 2023.
[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]
Wakf – Suit land was declared as wakf property by Single
Judge – Order set aside by Division Bench – Held: 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 – In the present case, on the admitted
facts, the wakf by dedication of the suit land is ruled out –
Further, 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 – In the absence of any evidence of valid
creation of a wakf in respect of the suit property either by
dedication or by usage, 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 – Appeals lack merit and are
dismissed – Tamil Nadu Estate (Abolition & Conversion into
Ryotwari) 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 Acts
declaring the list of the wakfs shall only be published after
completion of the process as laid down u/s.4 of the Acts – Conducting
of the surveys before declaring a property a wakf property is a sine
[2023] 7 S.C.R. 388
388
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qua non – In the instant case, there is no evidence on record that
before issuing notification u/s.5 of the 1954 Act, any procedure or
the survey was conducted as contemplated by s.4 – In the absence
of such a material, the mere issuance of the notification u/s.5 of the
Act would not constitute a valid wakf in respect of the suit land –
Therefore, the notification dtd. 29.04.1959 is not a conclusive proof
of 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 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, 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.
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 or
dismiss it and having decided to dismiss it, it could not have issued
direction to the Government to consider claims u/s. 19A of the
Abolition Act – Held: Appellant was never aggrieved by such a
direction as it never questioned or challenged it in any higher forum
– It 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 –
After having lost in proceedings before the Director of Survey and
Settlement, the appellant Committee 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 – Acquiescence is
followed by estoppel – 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 – Once the
appellant Committee accepted the order and participated in the
proceedings, it is estopped in law from questioning the jurisdiction
of the court in issuing such a direction – Tamil Nadu Estate (Abolition
& Conversion into Ryotwari) Act 1948 – s.19A.
SALEM MUSLIM BURIAL GROUND PROTECTION
COMMITTEE v. STATE OF TAMIL 

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