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 BriefThe 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 CourtThe 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...

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

Aiman J. Chishti

Tags