(Judgment of the Court was made by PRABHA SRIDEVAN,J.) The lands in question relate to Zamin Survey Numbers 5105 and 5108 in Salem Zameen Estate corresponding to Old Town Survey Numbers 2253 and 2210 respectively. The village was originally surveyed by the landholder in the year 1903 and both the survey numbers were registered as 'Rudra Bhoomi' poramboke,. Town Old Survey Numbers 2253 and 2210 correspond to new Town Survey Numbers 1, 113 and 70. We are concerned with new T.S. Nos. 113, and 70 (O.S. Nos. 2210). While the former(T.S.No:1) was classified as burial grounds, the latter(T.S.Nos. 113 and 70) was classified as Municipal waste. According to the 1st Respondent Committee it is a Muslim burial ground, while according to the appellants , they live there.
2. So on the one hand the respondents claim that the property is a wakf used as a burial ground and their right must be protected, the appellants assert that they have a right to live there, and that their predecessors-in-title have lived there, and so it is their right to live, to reside in their homes and their rights must be protected. Both are rights which if established must be protected by Courts. So we have carefully and painstakingly gone through all the materials and all the official records right from atleast the 50s.
3. In the enquiry before the Assistant Settlement Officer, one R.S. Perumal Chettiar claimed patta for portions of old T.S. Nos. 2253 and 2210. He claimed to have patta assignment from the landholder under Patta Nos.101-B and 101-A. The Assistant Settlement Officer disallowed the claim on the ground that the land was registered as burial ground poramboke in the village account, and there was no order of the District Collector under Section 20-A of the Tamil Nadu Estates Land Act declaring that the lands were not necessary for their original purpose and that it could be used for any other specified communal purpose or converted into ryotwari land. It was held that the assignment in favour of the claimant was wrong and technically void. There was another claim by one Ramasamy Chettiar, which was also rejected. The 1st respondent Committee objected to the claims of Perumal Chettiar and Ramasamy Chettiar and represented that the lands should be retained as burial ground poramboke for the Muslims. The dispute is between the appellants who claim that they and their predecessors-in-title have been living in what is now T.S.No.113 and 70 and their right to have a roof over their heads cannot be defeated and the first respondent herein claims that this property is a wakf where the dead are buried. The property is in T.S.Nos.113 and 70. And where we use the word property it should mean only the above survey numbers unless the context indicates otherwise. Against the order of the Assistant Settlement Officer that referred to above, the aggrieved claimants filed the revision.
4. The Assistant Settlement Officer found that though the lands were registered as 'Rudra Bhoomi', there was no evidence of burial ever having taken place in T.S. Nos. 113 and 70, and that there were only two tombs in T.S. No. 1. The burial Ground was ordered to be closed by the Municipality as early as in 1887 due to health reasons.
5. The aggrieved claimants filed a revision before the Settlement Officer, who found that the assignment pattas produced by Perumal Chettiar were not genuine. He rejected the claim of Ramasamy Chettiar on the ground that the lands were burial ground porambokes. Further revisions were filed before the Director of Settlement and Board of Revenue, which were dismissed. The claimants filed W.P. Nos. 903 and 1258 of 1960 in the Court. Six other persons by name Malli Chettiar, Veerappan Pillai, Angammal, Obli Chettiar, Manickam and Lakshmiammal also filed writ petitions challenging the orders of the authorities. All of them were heard together and by a common order dated 03-05-1962 the writs were dismissed. W.A.Nos. 132 to 134 and 154 to 159 of 1962 were filed against this order. They were dismissed on 12-01-1965, but while doing so the Division Bench, directed that the claims of the petitioners should be considered under Section 19-A of Tamil Nadu Act XXVI of 1948. The Following are the relevant observations made by the Division Bench:
We think we have indicated sufficiently that there is no justification for interference in these writ appeals, with the Judgment of Veeraswami J. declining to issue a writ at the instance of any of the parties concerned. The appeals are accordingly dismissed. But, 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 19-A of Madras Act 26 of 1948, subject, of course of all considerations that could be urged to the contrary effect by the Muslim Burial Ground Committee, or any person interested in claiming, even at the present time, the communal user or nature of the property in question. Further, our remarks are subject to the condition that the petitioner claiming under Section 19-A of Act 26 of 1948 are bona fide 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 bona fide and a fact entitling them, on equitable considerations, to the benefits of action under Section 19-A of the Act. This order was accepted by all. No one questioned that the jurisdiction under S.19-A could not be exercised in respect of these properties.
6. Thereafter, the Board of Revenue ordered that the Director of Settlement may consider the claims of the parties under Section 19-A of Act XXVI of 1948. When the matter was pending before the Director of settlement, the 1st Respondent Committee filed a suit in O.S. No. 1061 of 1963 on the file of the District Munsifs Court, Salem challenging the claims of the parties involved in the proceedings under Section 19-A of Act XXVI of 1948 and others. The suit was dismissed on 02-07-1974 .
7. After a detailed enquiry, the Director of settlements passed an order on 31.1.1975 holding that Thiru A. Ramaswamy Chettiar, Tmt. Chellammal, Thiru Obli Chettiar, Tmt. Lakshmi Saroja, Thiru Malli Chettiar, Tmt. Angammal and Thiru Sambasivam were entitled to continue in possession subject to certain conditions and rejected the claims of others. He also rejected the claim of the 1st Respondent Committee. This order is very detailed and elaborate. The 1st Respondent Committee filed revisions before the Commissioner of Land Revenue and Settlement of Estates. All the revision petitions were dismissed. Then W.P. No. 3560 of 1977 was filed, where the authorities filed a counter affidavit stating that the Government had prima facie come to the conclusion that the orders of the Director of Settlement as Confirmed by the Commissioner of Land Revenue were not sustainable and issued show cause notice to the grantees as to why the orders in their favour should not be cancelled. In view of the said counter affidavit, the learned Single Judge held that the writ petition was premature in nature and dismissed the same observing that it was better if the parties are left to agitate the question of factual possession before the Government and preserved the right to challenge the orders, if they were aggrieved. A further revision to the Government was filed against the order of the Commissioner of settlement. After the disposal of W.P. No. 3560 of 1977, the Government considered the records and passed G.O.Ms. No. 453, dated 14th March, 1990 confirming the orders of the Commissioner of Settlement and the Director of Settlements. This is a brief order by which the claims of Ramaswamy Chettiar and others to remain in possession was upheld, and revisions filed by A.Louis and other, Annamalai and others, K. Kumar and the 1st respondent Committee were rejected.
8. Against this order, 1st respondent filed W.P. No 6300 of 1990 against the Respondents 2&3, 5 to 12, and Appellants 1to 5 and others. Annamalai and others filed W.P. 5735 of 1990 against Respondents 1 to 15 and the 1st appellant. The Learned Single Judge dismissed both the writ petitions. Writ appeals were filed against this dismissal. The First Bench of this Court decided that the principles of natural justice had been violated and therefore directed the first respondent to hear the matter and dispose of the same in accordance with law.
9. Then the Government in G.O.Ms.No. 676 of Revenue Department dated 23-12-1999 passed a detailed order holding that the G.O.Ms.No.453, Revenue dated 14-03-1990 did not require any reconsideration. Against this, the 1st respondent Committee filed W.P.No.5985 of 2000. Against the rejection of their claims under S.19-A the other disappointed revision petitioners filed W.P.No.7341 of 2000. The learned Single Judge allowed the W.P.No.5985 of 2000 filed by the 1st respondent Committee and dismissed the other writ petition. These Writ appeals are filed only against the order passed in W.P. No. 5985 of 2000.
10. According to the learned Senior Counsel appearing for the appellant, it was not open to the learned Single Judge to sit in appeal against the order, and that the scope of judicial review are restricted. Having accepted the earlier Division Bench judgment that the Government may consider the matter invoking Section 19A, it is now not open to the respondents to say that there was no jurisdiction to invoke Section 19A. The order of the Division Bench granted to the 1st respondent Committee the right to be heard and not to challenge the very jurisdiction. The learned Senior counsel submitted that there were indisputable factual findings in favour of the appellant, The appeals must be allowed.
11. The learned Senior Counsel appearing for the Committee respondents submitted that once there is a declaration that there is a wakf, non-usage for any number of years, will not change the character, and when there is dedication, the dedication is meant to extend over the entire property and not restricted to one corner. He relied on several decisions which will be dealt with later.
12. Before the Director of Survey and Settlements, the objection statement filed by the Commissioner, Salem Municipality is that right from inception in the year 1866, the land has been under the possession of the Statutory Public body, i.e., Salem Municipal Council and it is communal poramboke land. The land has been classified as Government Poramboke, Sudukadu and that though the land in question lies in the heart of the town, there is no usage of the land as burial place, and further that such usage would be detrimental to the general health of the public who reside in the neighbourhood and that the land has communal open space to be put into the usage of Public Park and Childrens Park. In the Registers the words used are, Mayanam or Sudukadu. On 10-02-1968, the Settlement Officer after personally inspecting the sites found that in T.S.No.I there was two tombs. The entire survey was a vacant and once it was intended to be used as a burial ground by the Muslims. T.S.No.1 was occupied by several persons who have put in temporary huts and they have been evicted. Now we are only concerned with T.S.Nos.113 and 70. T.S.No.1 is on one side of the Salem-Tiruchy Road and T.S.Nos.113 and 70 are on the other. Buildings have come up and the property has not been used as burial ground for several decades. The Settlement Officer found that the sites have been purchased for valuable consideration and there is a long chain of transactions, which could hardly be said to be of a speculative motive. The Assistant Settlement Officer in his earlier order dated 06-03-1959 was unable to correlate the patta with the survey number. The Settlement Officer however, found that the sites were under possession and enjoyment of the persons claiming and their predecessors in title without any obstruction and enquiries revealed that they are bona fide purchasers and purchased under the genuine belief that they are the patta lands of their vendors and have spent considerable amount in constructing buildings on the sites. He rejected the objection of the Committee in respect of the occupation in T.S.Nos.113 and 70 as there are no burials in the above two fields and they are completely built up. Very importantly he noted that T.S. Nos.113 and 70 are registered as only Rudra Boomi while the land correlating to T.S.No.1 has been stated as Muslim Rudra Boomi. This is a very important factual finding that we cannot disturb lightly.
13. Therefore, the Settlement Officer having correlated the old Zamin Survey numbers (Z.S.Nos.) described as Burial Ground in the Estate accounts without regard to their actual user, said that a direction under section 19A of the Act XXVI of 1948 may be issued allowing them to continue in possession of the sites subject to the payment of Ground Rent. A further report was submitted on 08-12-1968, the Settlement Officer had referred to the earlier report wherein it was stated that the enquiries already made in the matter revealed that the sites in question were the ancestral properties of Thiru Subbarayapillai. It is seen that Subbaraya Pillais son Thiru Perumal alias Elayaperumal Pillai inherited the property and after him, his son Thiru Periayasami Pillai became the owner and therefore, it was made clear that Paimash Nos.23/4 and 23/5 where the properties of Subbarayapillai and his predecessors in title for a very long time as their patta lands, having been assigned by the land holder long back. Thiru Periasami Pillai had given the old documents to the vendees and one of the claimants has already produced one old patta No.195 and a Muchalika and that all the documents would show that the lands in question were ryoti lands included in the holdings of the ryots Subbaraya Pillai, Ramasami Pillai and their fore-fathers even prior to 1883. The old documents were produced by Ramasami Chetty one of the predecessors of the present claimants.
14. On 06-02-1969, the same Settlement Officer sent a further report inviting the attention of the Director of Settlement to his earlier reports dated 10-02-1968 and 08-12-1968. Since there was some technical defect relating to the correlation of patta paimash numbers, a further clarification was sought for and the settlement officer wrote that the treatment, of the lands in question as Rudra Boomi Poramboke in the Zamin Survey and confirmed in the Old Land Register of the year 1903 had remained unchallenged all these decades and therefore, the classification of the lands in question should be treated as valid and the sites will therefore, be treated as such. Since it is a communal land falling under Section 3(16)(b) of the Estates Land Act 1908 any claim in respect of the lands will have to be considered under Section 19(A) of Act XVII of 1948. It is seen from the communication of the then Settlement Officer to Director of Settlements on 22-07-1970 that the land in T.S.No.1 had been handed over to the Wakf Board by evicting the encroachments by the Estate Manager. The Memorandum dated 29-01-1970, issued by the Secretary to Government shows that, in 1967, the State Wakf Board represented that the land in T.S.No.1 was a Muslim Burial ground and that it is the sacred place containing the tombs of Muslim Saints since they were informed that the Salem Municipality and proposed to convert the site as a public part. The Government was requested to interfere with the matter for preserving the wakf character.
15. The Government to avoid injury to religious feelings decided to handedover the land in T.S.No.1 to the Wakf Board.
16. Now we will look at the orders of the authorities that have been passed over the years to see if there is really any shifting stand as observed by the learned Single Judge. On 31-03-1959, an order was passed by the Assistant Settlement Officer. In the enquiry under Section 19A of Madras Act XXVI of 1948 to decide as to whether the lands in Zamin Survey numbers were ryoti lands, R.S. Perumal Chetty and Ramaswamy Chetty were present and the Committee was also represented by Abdul Rahim Sahib. P.W.1 was the eldest witness examined. According to him there were no burials in this place. Abdul Rahim Sahib, the Secretary of the Committee had himself admitted that there had been no burials in the disputed areas. There were two tombs that existed in T.S.No.2253 and even there, there were no other burials. The masonry structures over the two tombs were put up sometime later and there is no evidence to show that there had been any other burials in T.S.No.2253. We will extract from this order.
I am therefore, of the opinion that this site could never have been used as a burial ground and the lands registered as burial ground poramboke in Zamin accounts as well as Municipal Records have ceased to be burial grounds long back. So I hold, that these two lands are only burial grounds as per records and description and not as per user, these lands have ceased to be put to the use to which they were set apart. (Emphasis supplied)
17. The Assistant Settlement Officer had commented about the reference to Mohammedan Rudra Boomi and Rudra Boomi,since Mohammedan burial grounds cannot be called as rudra boomi but is termed as Kabarasthan or a makkan. But this only underscores the fact that one property was Rudra Bhoomi the other was Mohammedan Rudrabhoomi(to put it correctly Kabristan). It is clear that even in the entries the property was only shown as burial ground poramboke and the word Mohammedan rudra boomi is used only with regard to the place where the two tombs exist. The Assistant Settlement Officer was of the opinion that the land cannot be assigned to Perumal Chettiar without any declaration under Section 20A and it was irregular. However, he made one observation which is very relevant:
Of course Sri. R. Perumal Chettiar is the only person who has got an order from the landholder of the estate assigning the land to him for valuable consideration paid by him. Though he is the only man who has obtained a right from the land holder to be in possession of the land his right over the land is technically defective and as such his right cannot be upheld.
18. In the order of the Settlement Officer in 03-10-1959 it is stated thus:
For these reasons, Exs-A1 to A3 cannot be accepted and acted upon. It may also be noted that no village accounts are available to corroborate the entries in Exs-A1 to A3. In fact there is also no evidence to show that there was any occupation in respect of the lands under revision on the basis of Exs-A1 to A3. The lands continue to be waste lands, as already pointed above, even if Exs-A1 to A3 are taken as genuine, they are not valid documents as the landholder had no power to assign communal lands after the year 1934 without the written permission of the Collector. In these circumstances, I entirely agree with the finding of the Asst. Sett. Officer that the lands are only communal lands in respect of which none of the claimants is entitled to a ryotwari patta. The revision petition of both revision petitioners Perumal Chetti and Ramaswami Chettiar hereby dismissed.
19. Aggrieved by this, they went to the Director of Settlement, who again passed a detailed order.
But the question is whether the land which contains burial can also be considered as Communal land; the Settlement Officer had held that it would be considered as communal land; the Settlement Officer has held that it would be considered so particularly because burial made thereon are those of the Muslim Community. Hence even though burials were no longer made, the original communal character of the land as burial ground and poramboke which is evidenced by the village accounts and survey records continued unimpaired. Even if survey records and municipal records cannot be conclusive and validly concluded they will be entitled to great weight and though the evidence through such documents its rebuttable in this case, I would consider the available evidence is inadequate to rebut the evidentiary value of the old survey registers and village accounts. It would also hold that the view taken by the Settlement Officer about the subsisting communal character of the land even though burials are not actually made therein at present is correct. It followed from this finding that the land which was communal in character falling under exception to S.3(16)(b) of the Estate Lands Act is not and cannot be available for assignment by the landholder without having recourse to the provisions of Sec.20(A) of the Estate Land Act. The land holder having not observed this procedure . Hence both the revision petition in R.P.224 and 229 of 89 are dismissed. The reference here to Muslim Burial is the two tombs in T.S.No.1 which is now with the Wakf Board.
20. On 08-08-1960, the Board of Revenue examined the matter and found no reason to interfere with the concurrent findings and dismissed the revision petition. Therefore, the W.P.Nos.903 and 1258 of 1960 were filed. Here one important fact that should be remembered is O.T.S.2253 correlates to new T.S.No.1 and O.T.S.No.2210 relates to T.S.No.113. The learned Single Judge assumed for reasons, which we are unable to understand that T.S.No.2210 must have been a part of T.S.No.2253 and held as follows:
In that sense, even assuming that T.S.No.2210 has never been used as a burial ground, it should have been a part of the land covered by T.S.No.2253, though of course in course of time the laying of the Trunk Road across it separated the two sites. There is of course no evidence to show that the two lands formed one block once upon a time. But in the setting of the facts, as I consider, it is not difficult to take the position granted.
In my opinion, no error apparent on the fact of the order has been shown. A number of authorities has been cited before me, but none of them appears to have a direct application to the facts of the instant case. In the course of the hearing, on behalf of one of the petitioners, it was said that the order of the Commissioner should be deemed to have been vitiated by reason of confusion of have had the burial ground converted into ryoti land under Section 20A of the Estates Land Act. Whether the Commissioner or the authorities below him were think in thinking that section could properly be invoked. I do not think their decision as to the character of the land as burial ground was in any way vitiated. If any one felt aggrieved by the application of Section 20A to the lands, it would be time enough to complain.
The result is these petitions fail and are dismissed. The rule nisi are discharged. No costs.
21. We are unable to accept the finding that though T.S.No.2210 has never been used as a burial ground, it should have been part of the land covered by T.S.No.2253. For this there is no factual support. But this opinion is of no consequence since he did not interfere with the orders of the authorities and observed that if any one felt aggrieved by the application of Section 20A to the lands, there would be enough time to complain.
22. Against this, the writ appeal Nos.1327 and 1348 of 2005 were filed. The Learned Judges observed that they were concerned only with T.S.No.2210 alone.
We are stressing this, in order to emphasise that mere disuse or non use cannot obliterate the category of the land. We must also stress that, in the decision of Wadsworth, J in Thirumalai Tirupathi Devasthanams Committee V. Pujali Komarappa Mudali (2) 1938-2 M.L.J. 829 that we have earlier cited and which is relevant on this aspect there was not merely disuse prior to the enactment of Madras Act 1 of 1908, but also the supersession or substitution by an opposed user. As far as the Abolition Act is concerned, section 19(A) would appear to us to have been enacted, upon the same principle as section 20(a) (i)(b) of the Madras Estates Land Act, and to provide for the same kind of situation. We think that the proper procedure in such cases is for the Government to give a direction, that the person admitted into possession for a part of communal land, may be permitted to continue in such possession, where the facts justified this, and the property has either long ago ceased to be put to that communal purpose, is unlikely to be over put to such purpose in future.
We think we have indicated sufficiently that there is no justification for interference, in these writ appeals with the judgment of Veeraswami, J. declining to issue a writ at the instance of any of the parties concerned. The appeals are accordingly dismissed. But, 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 the present time the communal user or nature of the property in question
23. While dismissing the appeals, Division Bench had recommended the consideration of the claim of the persons in possession if bona fide on equitable considerations. If there was a jurisdictional bar, then the order should have been challenged. The 1st respondent Committee was given the right to be heard on facts. But if it felt that S.19-A was barred, then the order ought to have been challenged.
24. Thereafter, on 31-01-1975, a detailed order was passed by the Director of Survey and Settlements. It is very interesting to see that in those days the Officers were very conscious that they were exercising quasi-judicial power and had meticulously recorded the statements given by the various witnesses and dealt with that. The manner in which they have done is really praiseworthy. In compliance with the orders of the Division Bench which directed that the erection of buildings on the sites may also be considered as evidence of bona fide alienations , and that the persons were under the genuine belief that they were dealing with the patta lands of their vendors. The Director of Survey and Settlements had considered each case in detail.
25. As far as Perumal Chettiar is concerned he was not in physical occupation of the lands in T.S.No.1 which had been handed over to the State Wakf Board and which was occupied by several hut dwellers, who had been evicted. Therefore, Perumal Chettiar was held not to be in occupation of the land till date and he has not reclaimed the land or constructed and building to signify his vested interests and therefore, his claim was rejected.
26. As far as Malli Chettiar was concerned, he had put up a tile building and he was running a Photo Studio and he could trace his title through Subbiah Pandaram.
27. As far as Angammal was concerned, she had put up thatched sheds. She could trace the title through Periasamy Pillai who is the grand son of SubbiahPillai. Her property is in T.S.No.70 which had been registered as Mayanam Poramboke.
28. Ramaswamy Chettiar had constructed thatched sheds. He also traced his title through Periasamy Pillai grand son of Subbaraya Pillai.
29. As far as Sankarammal was concerned, her claim was rejected because she was not found to be in possession.
30. Obli Chettiar also had constructed two tiled and one thatched buildings and he could trace his property through through Subbaraya Pillai.
31. Similarly, Sambasivam had four thatched sheds and his predecessors-in-title was Periasamy Pillai.
32. As far as Sennammal and Lakshmi Saroja was concerned, they trace their title through Periasamy Pillai.
33. This order makes the crucial difference which we have to bear in mind while dealing with this case. It is this Officer who clears up the ambiguity that clouded the dispute. He has made it clear beyond dispute that the properties in T.S. Nos. 113 & 70 were never wakf properties. The tombs were only in T.S.No.1, the Land register entries that the property was a Muslim burial ground was also only in respect of this. We extract the relevant portion of the order:
It is seen from the records that O.T.S.No.2253 was registered as Muslim Burial Ground while O.T.S.No.2210 was registered as Burial Ground as per the adangal of F.1341. Of this O.T.S.2253 correlating to New T.S.No.1 of Block no.53 where there are two tombs exists has already been handed over to the wakf board. The Assistant Settlement Officer who has inspected the lands as early as 1959 had concurrently held that there is absolutely no sign of burials in O.T.S.No.2210 correlating to T.S.No.113 and that this site could never have been used as burial ground and it had ceased to be burial ground long ago. It is also in evidence that the Salem Municipal Council decided as early as 1867 that no burials should be allowed in this land O.T.S.No.2210 due to health reasons and due to the fact that the lands lie in the midst of habitation. Thereafter, dealing with the claim of the Salem Municipality to construct a childrens park the Director rejected it holding that the objection of the Salem Municipality and the Committee against the issue of direction under Section 19A has little value. It is relevant to note that at this juncture the Committee never raised the question that the Director had no jurisdiction to pass the order under Section 19A.
Thereafter, in exercise of the power delegated to me, in G.O.Ms.No.4294 revenue dated 3.10.1961, I direct under section 19A of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act 1948 that the following persons be permitted to remain in possession of the lands shown against them in the schedule to this order, subject to the following conditions:
1. The beneficiary shall pay the taram assessment and other lawful dues as might be leviable on the lands from the fasli year in which the estate was taken over by the Government.
2. That the Government will be at liberty to take possession of any of these lands or all of them at any time, if they require the lands for public purposes. The decision of the government shall be final and binding on the claimants with regard to the declaration of the purpose as a public purpose.
It went before the Commissioner of Land Revenue who passed an order what to our mind is an unclear order as follows:
8. The Director of Survey and Settlements, basing himself on the observations of the High Court in Writ Appeal considered that the above persons are bonafide alienees for value who have taken such properties and put them to private use in the genuine belief that they were dealing with the land in the private ownership of vendors from the Zamindar and they and also incurred expenses in putting up building as stated in paragraph 6 and hence considered that their occupations should be permitted under Section 19-A. I have put the question to the Counsel for the Respondents as to how he could state that the predecessors in title of the Respondents were admitted into possession by the land-holder. He conceded that there was no clear proof of this but that under Section 19-A it was open to the Government to recognize their bona fide purchasers by the landholder. On a strict construction of Section 19-A, no doubt there is no satisfactory proof that the predecessors in title of the respondents were admitted to possession by the landholder. Of course, there is no question of any permission under Sect.20-A of the Estate Land Act having been obtained. But seeing that the land is no longer required for burial ground and seeing that the respondents are bonafide purchasers for value the sale deeds dating from Thiru Obli Chettiar in 1962 to Thiru T. Sambasivam in 1966 and each of them narrating earlier sale deeds and seeing also the reference to patta No.195 and 196, I am of opinion that the orders of the Director of Survey and Settlements in favour of the respondents should be confirmed. The Board directs accordingly.
34. When the earlier reports show that there were exchange of Muchalikas and pattas dating back to 1908 and the original land holder and the person in possession have also traced their title almost upto Subbaraya Pillai, we are unable to understand why the Commisisoner observed that there is no satisfactory proof regarding the admission to possession of the predecessors-in-title. In any event, he did not interfere with that portion of the order of the Director of Survey to the effect that T.S.No.70 and 113 were never Muslim Burial Grounds and the Muslim Burial Ground was restricted to T.S.No.1, which was correlated to T.S.No.2253 now separated by the State Highway. This finding has not been interfered with. Then the Government Order dated 14-03-1990 was passed where the Government allowed the order to stand with regard to T.S.No.70 and 113 and dismissed the revision filed by the Committee and others. It is against this that they filed W.P.Nos.6300 and 5735 of 1990, the order passed therein is reported in 1993 II MLJ 419(Annamalai Vs. Secretary to Government). We find that after going through the records the Learned Single Judge had found No writ can be issued at the instance of the petitioner , who has failed to establish that the land continued to be a burial ground throughout. The petitioner referred to above is the first respondent Committee. The old registers described it only as Rudra Bhoomi. If it had been Muslim burial ground a different expression would have been used. Whether it was a Muslim burial ground or not is itself in doubt. Against the order, they filed an appeal and the Division Bench remitted the matter for hearing afresh without observing anything on merits. After the matter was sent back by the Division bench, the impugned Government Order was passed. Neither before the learned Single Judge nor before the Division Bench that the Committee ever raised the jurisdictional question . They allowed the matter to be remitted to be heard afresh. The main objection raised by the Committee was that under Section 19(A) the persons enjoying the lands had to establish that they have purchased from the vendors.
35. They referred to 1997 TNLJ 356 (Kasi Viswanatha Chettiar and others Vs. C.M. Chinnaiah Chettiar)wherein it was held that the necessary condition for applicability of Section 19A is admission into possession of such by the land holder on any communal land.
36. In 1976 (4) SCC 780(Syed Mohd. Salie Labbai Vs. Mohd. Hanifa(dead) by L.Rs.) it was held that once a Kabarstan has been held to be a public grave yard then non-use will not change the character.
37. In 1999 (2) L.W.36 (Mohamed Ali Vs. Kader) it was held that specific dedication is not necessary and long user of property will justify the presumption of dedication. Notification under Wakf Act is a statutory notification. Since no body has challenged the Section, nobody is entitled under Section 19A of the Act 1948. By this Government Order, the Government considered that the G.O. issued on 14-03-1990 did not require any revision by way of re-consideration.
38. In 1999 (2) LW 36(Mohamed Ali Vs. Kader) which was relied on by the learned counsel for the respondent the learned Single Judge held that long user of property for a considerable number of years is taken in favour of the Community and there need not be any specific direction. But we actually find that this judgment in fact supports the Governments stand. The right of long user gives a presumption to that there was a Wakf. Here there is no proof of long user as far as T.S.Nos. 70 and 113 are concerned. The order dated 31-01-1975 of the Director of Survey and Settlements clearly shows that only one was Muslim Burial Ground and the other was not a Muslim Burial Ground and in this the learned Single Judge gives a direction that parties must adduce evidence to locate the exact extent of the property treated as burial ground. This is what the authorities have done in this case.
39. We have found on facts and from records that T.S.No.1 alone may have been used as a burial ground and though there were only two tombs there, the entire T.S.No.1 was restored to the Wakf Board.
40. In 1998 (2) SCC 642 (Sayyed Ali Vs. A.P. Wakf Board, Hyderabad), the Supreme Court held that after a wakf has been created it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the wakf property. This too does not help the respondents since the authorities have accepted that the creation of wakf only with regard to T.S.No.1.
41. In 1976 (4) SCC 780(Syed Mohd.Salie Labbai Vs. Mohd. Hanifa) the facts were different.
The High Court has clearly held that the burial ground consisted of two parts as shown in the sketch map and has been proved to be a public grave-yard by immemorial user. There is overwhelming oral and documentary evidence to prove this. In fact the defendants themselves have not denied that the Mahomedan public of the village used to bury their dead in this grave-yard and they have only sought to protect their right to realise pit fees and other incidental charges which has been accepted by the High Court. On the other hand, if any member of the public is permitted to be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public grave-yard where the Mahomedan public will have the right to bury their dead. In this case, all along the authorities have denied the usage of the property as a grave-yard.
42. This also does not arise in this case since there is no instances of burial adequate in character. Therefore, there is no establishment of practice and consequently there is no presumption that there is dedication. In fact a 75-year-old man who was P.W.1 before the Assistant Settlement Officer has himself admitted that there was no instance of any burial. Therefore, the conclusion of the Supreme Court in 1976 (4) SCC 780(supra) does not help the respondents case at all.
43. According to the respondents this property is included in the publication under
Section 5 of Wakf Act, 1954. There is a Gazette Notification in 03-10-1959, and once this gazette notification is published then there can be no further dispute regarding the question whether a particular property is wakf or not. It is relevant to note that this notification was published soon after the order of the Assessment Settlement Officer on 31-03-1959. Thereafter, until the impugned order dated 23-12-1999, there is no reference to the notification even by the Muslim Burial Ground Protection Committee before any of the authorities or atleast there has been no reference to the same in any of the earlier the orders or in the writ petitions and writ appeals referred to above. For example in W.A.No.132 of 1962, the Bench merely observes:
It is clear enough that the Muslim Burial Ground Committee is interested in the proceedings... But there is no reference in the order of the Director of Survey and Settlement dated 31-01-1975 and in the G.O.Ms.No.453 of Revenue Department dated 14-03-1990.
44. The Wakf Act, 1954 shows that after a preliminary survey of wakfs and a report submitted by the Survey Commissioner after making an enquiry a publication under
Section 5 of the list of wakf shall be made. There is no evidence in this case that either notice was issued during the enquiry under Sub-section 4 of Section 4 to the appellants nor is there anything to indicate that a survey was made and on that basis the publication was effected.
45. In the impugned order alone, which is of the year 1999, we find that this document is produced before the authority. There the appellants submitted that the publication does not bind by them. They are right. We have the following judgments to support our conclusion.
46. In 2000 (2) SCC 121(Punjab Wakf Board Vs. GramPanchayat alias Gram Sabha) the revenue records showed that the property was gair mumkin kabristan. The Gram Panchayat claimed that it was the owner of the property. The Wakf Board contended that the property was under its ownership and it was being used as a grave yard for Mohammedans exclusively and since there was a notification on 19-09-1970 which was not questioned by the Gram Panchayat, the subsequent orders of the Assistant Collector and the Collector were illegal. The Assistant Collector had held that the Gram Panchayat was the owner and the Wakf Board had failed to substantiate its claim. The Collector confirmed this. The Subordinate Judge held that merely by a notification by the Wakf Board the suit property cannot become the property of the Wakf and no dead bodies were being buried by the Mohammedans. The Wakf Board relied on 1976 (4) SCC 780(Syed Mohd. Salie Labbai Vs. Mohd. Hanifa) where it was held that once a property becomes a wakf property it would continue to be the same notwithstanding non-user ; and also on Sayyed Ali Vs. A.P. Wakf Board(1998 (2) SCC 642). The Supreme Court distinguished Sayyed Alis case and held that the dispute there was between the wakf on the one hand and its Mutawalli or persons claiming from him, while here the dispute was between the Wakf Board and the Panchayat representing the village community. The Supreme Court held that if no notice was issued, 23. We, therefore, hold that the first proviso to sub-section (1) of
Section 6 referred to above would not come in the way of the Assistant Collector and the Collector to decide, in the dispute raised by a third party like the Panchayat, whether the property is a Mohammedan wakf or not.
25. Obviously, the intention of Parliament was to say that if a suit was not filed within one year, the notification would be binding not only on those interested in the trust but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under
Section 4 preceding the notification under
Section 5(2).26. In this connection, we have to point out that the Government of India has not issued any date for commencement of the explanation in
Section 6 of the Wakf Act quoted above. Even if it is assumed that the explanation can be invoked, there is no material before us to show that any notice was issued to the Gram Panchayat before the issuance of the notification, as required by the explanation. If no notice was issued as required by the notification, the notification would not come in the way of a civil court to decide the question if raised between the Wakf and a third party, even if such a suit was filed beyond one year from the date of the notification. Thus, once the Assistant Collector and the Collector had jurisdiction to decide, their decision became final and Section 13 of the Punjab Act barred the civil suit filed by the Wakf Board. This case is more similar to the case on hand and so for the reasons given above Syed Mohd. Salie Labbais case and Sayyed Alis case do not apply.
47. In 2004 (10) SCC 779(Karnataka Board of Wakf Vs. Government of India) the Supreme Court again held that in considering the old Wakf Act which was for the better administration and supervision of wakfs, Under Section 4 Survey Commissioner(s) could only make a survey of wakf properties existing in the State at the date of the commencement of this Act. Since factually the property was not an existing wakf property, then subsequent deeds based on the presumption that the suit property is a wakf property are of no consequence in law.
48. In AIR 1975 SC 1891 (Punjab Wakf Board Vs. Capt. Mohar Singh) it is held thus:
10. Exhibit P-2 is a notification dated February 27, 1961 issued by the Home Secretary. The notification states that in exercise of the powers conferred by
Section 55(2) of the Act, the Governor of Punjab is pleased to direct that the powers under
Section 11(1) in respect of Muslim evacuee properties in trust for public of a religious or charitable nature in the Punjab State, exercisable by the Government of Punjab shall be exercisable by the Board of Wakfs established under Section 9 of the Muslim Wakfs Act, 1954. There is no intrinsic evidence in Exhibit P-2 to indicate that the property in suit is wakf property. The exercise of powers by the Board under the Muslim Wakfs Act in respect of Muslim evacuee properties in trust does not establish and identify the property in suit to be wakf property.
13. The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian.
49. In AIR 1979 SC 289(The Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan) the Panchayat Wakf Board) the Supreme Court held:
39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-section (1) of
Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of
Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises. This arose against a judgment of the Rajasthan High Court where the Learned Judges had held that the intention of the Legislature could never have been to cast a cloud in the right, title or interest of persons who are not Muslims. That is, if a person who is a non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub-s.(2) of S.5. The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. The Three Judge Bench of the Supreme Court in this case held that We are in agreement with this reasoning of the High Court. This applies to the case on hand and simply because this property is included in the list, the appellants interest cannot be jeopardized.
50. We are also conscious of the limits of judicial review. The power of review under
Article 226 can be exercised when there is error manifest and apparent on the face of the proceedings as for instance the clear misreading or utter disregard with the provisions of law resulting in grave injustice or failure of justice. It is not available against the decision of the authority but against the decision making process. We can only extend our power of review to the examination of the correctness or reasonableness of the decision, but not sit in appeal over the decision. The Supreme Court had repeatedly held so in several decisions as for instance in State of A.P. Vs. P.V. Hanumantha Rao (2003 (10) SCC 121) as follows:
that remedy of writ petition available in the High Court is not against the 'decision' of the subordinate court, tribunal or authority but it is against the 'decision making process' that neither in exercise of power of writ under
Article 226 nor in supervisory jurisdiction under
Article 227, the High Court will convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence. The power of the High Court in writ jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognised even in the case of Sawarn Singh & Anr. Vs. State of Punjab(1976 (2) SCC 868) on which strong reliance was placed on behalf of the State. In 1976 (2) SCC 868 (supra) it is held thus:
..a writ of Certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.
51. We are unable to agree with the learned Single Judge for the following reasons:
(1) There is absolutely no evidence of any burial almost from the 19th Century. The decisions of the Supreme Court whether it was held that on account of non-user, the wakf character will not be lost or that user over a long period will give rise to a presumption of dedication, cannot apply because there has to be a proof of dedication or proof of user, for these decisions to apply.
(2) Right from the beginning the authorities have noted the difference between the two entries viz., burial ground/Sudukadu and a Muslim Burial ground. In any event, Sudukadu can never refer to a Muslim Burial ground because Sudukadu indicates the cremation place. Even in 1959, the authority does not find that the property was a Mohammedan Burial ground. It only states that it supports that it is a Mohammedan Burial ground in a way.
(3) The order in 1975 is very clear. It shows the difference between the two survey numbers O.T.S.2253 is registered as Muslim Burial ground O.T.S.No.2210 is registered as burial ground. What was registered as Muslim Burial ground has been handedover to the wakf board. What was registered as merely burial ground with absolutely no sign of Muslim burials was rightly held as not being a wakf property. A presumption will arise only when there is the existence of the basic fact. The basic fact itself cannot be presumed.
(4) As regards
Section 5 publication, this was pressed into service only in 1999 before that it has not been relied on before any authority or even before this Court. When the W.P.Nos.5985 of 2000, 6300 of 1999 and 5735 of 1990 were filed before this Court.
Section 5 publication was not pressed into service. In any event in view of the decisions referred to above viz., 2004 (10) SCC 779(supra) of the Supreme Court this cannot affect the right of the appellants. Further, there was no evidence that there was preliminary survey under
Section 4. In fact the
Section 5 publication is made in November 1959 after the order passed by the Assistant Settlement Officer.
(5) As regards the findings/observations of this Court in the earlier proceedings we have already indicated that the observation made by Veerasami,J. as he then was in W.P.Nos.903 and 1258 of 1961 that though T.S.No.2210 has never been used as a burial ground it should have been a part of the land covered by T.S.No.2253 has no factual basis. In fact, the learned Judge himself says later that it is true that there is no evidence to show that the two lands formed one block once upon a time. If this is so, there is no justification for treating T.S.Nos.2253 and 2210 alike.
(6) On the other hand in 1993 II MLJ 419(supra), the learned Single Judge had observed that no writ can be issued at the instance of the first respondent Committee who was the petitioner, who has failed to establish that the land continued to be a burial ground and whether it was a Muslim Burial ground is itself in doubt. We are repeating this only to show that the consistent finding both by this Court and by the authorities has not been in favour of the Committee.
(7) The clear-cut findings have been to the effect that the two survey numbers are separate and the Registers as far as can be traced have not shown that there was either a dedication or declaration. Even the appellate order against the order passed in 31-01-1975 who had observed that there was no satisfactory proof regarding the admission to possession of the predecessors-in-title of the appellants, had not interfered with that portion of the order of the Director of Survey which said that T.S.Nos.70 and 113 were never Muslim Burial ground. This factual finding has not been interfered with.
(8) We have already observed the meticulous manner in which the order dated 31-01-1975 has been passed by Mr. G.M. White, I.A.S. If it is palpably unjust or arbitrary or not based on evidence or if it is based on inadmissible evidence we may interfere. But we are clearly not sitting in appeal over the order. The Officer has examined all the records in compliance with the directions given by the Division Bench. The Division Bench had given directions to see if an equitable exercise of jurisdiction can be made taking into account the enjoyment of the properties by the claimants. He has done so by examining whether the claimants have proved possession and have traced the title upto Subbaraya Pillai and also the existence of super-structure. He has accepted their case where they have proved it. Where the claimants have not been able to establish their title, he has rejected the claims. Those are the appellants who had filed W.P.Nos.903, 1258 of 1960 etc., which was also dismissed by the learned Judge by a common order dated 03-05-1962. Therefore, it is not as if he has accepted the case of all the persons that came before him invoking the provisions of Section 19A.
(9) As regards the right to invoke Section 19A, the lack of jurisdiction will arise only if there is a burial ground for Muslims and therefore a wakf. Here the consistent finding of the authorities is against the respondent-committee.
52. In these circumstances, the writ appeals are allowed. However, there will be no order as to costs. The connected miscellaneous petitions are closed.
glp To The Salem Muslim Burial Ground Protection Committee, Salem Represented by its Secretary M.B. Khader Hussain, Salem
2. State of Tamil Nadu Rep. by the Secretary to Govt Revenue Department, Fort St. George Chennai 600 009
3. The Secretary Commercial Taxes and Religious Endowments Fort St. George, Chennai 600 009
4. The Director of Survey and Settlement Chennai 600 008