SALEM MUSLIM BURIAL GROUND PROTECTION COMMITTEE versus STATE OF TAMIL NADU AND ORS
[2023] 7 S.C.R. 388, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Facts
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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
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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 NADU
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Pannalal Binjraj v. Union of India AIR 1957 SC 397:
[1957] SCR 233 – followed.
Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by
Lrs. Etc. AIR 2002 SC 402: [2001] 2 Suppl. SCR 428;
Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal
(2017) 13 SCC 174: [2017] 5 SCR 294; State of Andhra
Pradesh Vs. A.P. State Wakf Board and Ors. 2022 SCC
OnLine SC 159 – relied on.
M. Siddiq (D) thr. L.Rs. Vs. Mahant Suresh Das and
Ors. (2020) 1 SCC 1: [2019] 18 SCR 1 – referred to.
Case Law Reference
[2019] 18 SCR 1
referred to
Para 27
[2001] 2 Suppl. SCR 428
relied on
Para 33
[2017] 5 SCR 294
relied on
Para 34
[1957] SCR 233
followed
Para 43
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7467-
7470 of 2014.
From the Judgment and Order dated 06.08.2009 of the High Court
of Madras in WA Nos. 1327, 1348 of 2005 and WAMP Nos. 2437, 2476
of 2005.
Mrs. June Chaudhari, Sr. Adv., M/s. Shakil Ahmad Syed, Syed
Ahmed Saud, Mohd Parvez Dabas, Uzmi Jameel Husain, Daanish Ahmed
Syed, Aqib Baig, Mohd Shahib, Advs. for the Appellant.
Narendra Kumar, K. V. Vijayakumar, Ms. N. S. Nappinai, V.
Balaji, C. Kannan, Asaithambi Msm, Rakesh K. Sharma, D. Kumanan,
Ms. Deepa S. Sheikh F. Kalia, Ms. Racheeta Chawla, Ms. Divya Singh,
G. Balaji,, Advs. for the Respondents.
The Judgment of the Court was delivered by
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.
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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. 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, Salem1. 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.
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, Salem2 in March,
1959 initiated inquiry under Section 11(a) of the Tamil Nadu Estate
(Abolition & Conversion into Ryotwari) Act 19483.
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, 19084 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.
1 hereinafter referred to as “appellant Committee”
2 hereinafter referred to as “ASO”
3 hereinafter referred to as “Abolition Act, 1948”
4 hereinafter referred to as “Estate Act”
SALEM MUSLIM BURIAL GROUND PROTECTION
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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 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 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
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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 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 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.
SALEM MUSLIM BURIAL GROUND PROTECTION
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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 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 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
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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.
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.
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
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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 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 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
5 (2020) 1 SCC 1
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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 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 as may be deemed
necessary, submit its report to the State Government about certain factors
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
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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 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 Jalal7,
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 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….”
6 AIR 2002 SC 402
7 (2017) 13 SCC 174
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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 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 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
8 2022 SCC OnLine SC 159
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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 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
the 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 from raising any objection in this regard at such a
belated stage for the first time before this Court.
A
B
C
D
E
F
G
H
401
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 jurisdiction 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, 9th Edition, as a person’s tacit or passive acceptance or
implied consent to an act. It has been described as a principle 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 India9, 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 having
9 AIR 1957 SC 397
SALEM MUSLIM BURIAL GROUND PROTECTION
COMMITTEE v. STATE OF TAMIL NADU [PANKAJ MITHAL, J.]
A
B
C
D
E
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402
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[2023] 7 S.C.R.
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.
Divya Pandey
Appeals dismissed.
(Assisted by : Roopanshi Virang, LCRA)