Najeeb and Ors Vs. State
of Kerala  Insc 330 (3 March 2008)
Dr. Arijit Pasayat & P.
Sathasivam & Aftab Alam
Civil Appeal No.1910 of
2002 Dr. Arijit Pasayat, J.
Challenge in this appeal is to the judgment of the learned Single Judge
of the Kerala High Court allowing the Civil Revision Petition.
Respondent-State of Kerala filed a Civil Revision Petition under Section
103 of the Kerala Land Reforms Act, 1963 (in short the 'Act'). Challenge in the
revision was to the order of the Taluk Land Board, dated 22.2.1991 holding that
the declarant was liable only to surrender an extent of 0.26.250 acres of land.
Stand of the State was that the property held by the so-called Wakf of which
the declarant was Muthavalli was to be included while determining the extent of
land held by the predecessors of the appellant.
Background facts in a nutshell are as
The predecessor of the appellants (hereinafter called the declarant) filed a
statement under Section 85 of the Act. After an enquiry the Taluk Land Board
determined that the declarant held an extent of 2.5.700 acres of land in excess
of the ceiling area. An extent of 2.55 acres was taken possession of. On the
ground that the declarant had failed to disclose certain other lands held by
him, the Taluk Land Board reopened the matter and after hearing the declarant
passed a revised order dated 13.12.1977 holding that a further extent of
5.42.500 acres of land is also liable to be surrendered by the declarant. The
declarant filed C.R.P.4053 of 1977 before the High Court. The High Court held
that certain lands acquired by the declarant after 1.1.1970 were also sought to
be included by the Taluk Land Board and the same could not be done. Apparently,
the High Court took the view that such subsequent acquisitions could be
considered only in a proceeding initiated under Section 87 of the Act. Deleting
the extent of land acquired after 1.1.1970 the High Court directed the Taluk
Land Board to consider whether an extent of 3.13 acres allegedly set apart for
a Madrassa was liable be included or was liable to be exempted on the ground
that it was a Wakf property. The High Court gave an opportunity to the
declarant to establish that the income from the said extent wholly went to the
Wakf and. not to the personal account of the declarant.
Thus clarifying that in the present proceeding the Taluk Land Board was only
concerned with the land held by the declarant as on 1.1.1970 the High Court
directed a re-examination of the claim regarding 3.13 acres of land. The Taluk
Land Board thereafter passed an order on 13.12.1982 holding that the declarant
had not produced any reliable evidence to show that the income from properties
allegedly set apart for the Madrassa went to the Wakf except two registers said
to be the account books of income and expenditure which was found to be
unreliable. The Taluk Land Board held that the registers were seen to be
written up recently and there was nothing to show that those accounts related
to the properties in question.
The Taluk Land Board also entered a finding that its enquiry revealed that
only a share of the income goes to the Madrassa and the major portion goes to
the personal account of the declarant. The Taluk Land Board therefore held that
in the absence of evidence, properties could not be deleted from the account of
the declarant. The Taluka Land Board thereupon directed that the declarant was
bound to surrender an extent of 2.93.500 acres of land. The declarant filed
another Revision before the High Court as C.R.P.3618 of 1982. Pending the
revision the declarant died and his legal representatives were impleaded as
additional petitioners. By order dated 7.7.1989 the High Court held that a
fresh enquiry as ordered by it has not been conducted by the Taluk Land Board
regarding the claim of exclusion on the ground of the lands being dedicated to
a Wakf and the reliance on the report of the authorised officer which the
declarant alleged was prepared without notice to him was not sufficient to
disallow the claim of the of the declarant. The contention of the declarant
that the account books produced by him establish his case noticed by the High
Court which directed the Taluk Board to reconsider the question whether the
entire income from the property in dispute was appropriated for the benefit of
the Wakf and whether the property was liable to be exempted under Section
81(1)(t)(iii) of the Act. Thereafter the Taluk Land Board did not consider
whether the declarant has adduced any evidence to establish the acceptability
of the books of account and whether they are acceptable. It simply referred to
the report of an authorised officer to the effect that a Madrassa was
functioning, which was one registered with the Kerala Wakf Board and that the
same was being managed by its Muthavalli. It also noticed that according to the
report, the income from certain lands having an extent of 2.67.250 acres, was
being used for the purpose of the Madrassa. Report of the authorised officer
was accepted and the Taluk Land Board proceeded to exempt 2.67.250 acres of land
under Section 81(1)(t)(iii) of the Act. Thus the Taluk Land Board held that the
declarant was liable to surrender only an extent of 0.26.250 acres of land.
Stand of the State before the High Court was that burden to show that the
land was taken in by the order, inclusion of which has been upheld by the High
Court earlier, was on the declarant who has failed to discharge that burden. It
was further submitted that the accounts were clearly written up at a stretch
and there was no material to show that income from the land was wholly spent
for the benefit of the Wakf. The High Court with reference to Section
81(1)(t)(iii) of the Act held that it had to be shown that the land was owned
or held by a public trust which expression included a Wakf. The proviso
provides that the exemption is available to a public trust only if the entire
income of such lands is appropriated for the trust concerned. It was concluded
that there was nothing to show that these lands were owned or held by a public
trust on the appointed day, i.e. 1.1.1970 to which date exemption under Section
81 relates. It was further held that the declarant failed to prove that the
land in question qualified for the exemption. Accordingly, as noted above,
Civil Revision was allowed.
Learned counsel for the appellants
submitted that the basic approach of the High Court was wrong.
Reference was made to Section 81(1)(t)(iii) which relates to exemption.
The proviso appears in the Chapter III which deals with the exemption. In the
instant case, the Wakf was not claiming any exemption. Therefore, the
requirement of Section 81(1)(t)(iii) could not have been pressed into service
by the High Court. The State's stand in this regard was thoroughly
misconceived. It was also pointed out that in the earlier round of litigation,
it has been clearly held that the Wakf in question was a public trust.
Conclusions to the contrary made by the High Court are clearly unsustainable.
Learned counsel for the
respondent-State supported the order.
Section 81(1)(t)(iii) from which the High Court has placed reliance reads
"81 Exemption: - (1) the provisions of this Chapter shall not apply to xxxx
xxxx (t) lands owned or held by (i) a University established by law; or (ii) a
religious, charitable or educational institution of a public nature; or (iii) a
public trust (which expression shall include a wakf):
Provided that (i) the entire income of such lands is appropriated for the
University, institution or trust concerned; and (ii) where the University, institution
or trust come to hold the said lands after the commencement of this Act, the
Government have certified previously that such lands are bona fide required for
the purposes of the University, institution or trust, as the case may be;"
It is a part of Chapter III of the
Act. As rightly contended by learned counsel for the appellants it relates to
The proviso has no role to play while dealing with the question whether the
land was to be included in the holding of the declarant. The question of
exemption arises only when land in excess of the permissible limit is held by a
public trust and exemption is sought for on the basis of what is provided in
the proviso (i) or (ii). It is not the case of the State that the Wakf was
required to be registered. This issue was gone into by the High Court in the
earlier round in Civil Revision no.4053/77- B. It was, inter-alia, held as
"Similarly another extent of 3.13 and odd acres was added on to the
petitioner's account by holding that certain properties set apart for Madrasa
in 1123 M.E. and others subsequently acquired were really being enjoyed by the
petitioner. The main reason stated for rejecting the plea that the property
belonged to a Wakf is that the Wakf has not been registered under Wakf Act. I
have not been taken through any provisions of the Wakf Act which lays down that
unless registered under that Act, any declaration dedicating property in the
manner required by the Mohammedan law cannot be given effect to.
Counsel for the petitioner submits that the subsequent acquisitions are in
the name of the Wakf itself, and that the Wakf has also been subsequently
registered. The approach made by the Taluk Land Board is erroneous; it cannot
be presumed that there is no Wakf at all because there is no Registration under
the Act. The Taluk Land Board may probably be justified in enquiring as to
whether the income from the property goes to the Wakf, or to the personal
account of the declarant. As I said, the matter requires re-examination. This finding
is therefore set aside and the Taluk Land Board is directed to reconsider the
question in accordance with law."
This Court by order dated 20.4.2001 had directed the appellants to file
an affidavit along with documents to show that the property stands in the name
of the Madrassa. The documents have been filed which clearly show that the
settlement deeds were executed in the years 1952, 1958, 1962 and 1966.
Authenticity of the documents has not been questioned.
Looked from any angle, the impugned
order is clearly unsustainable in view of the position in law highlighted above.
The appeal is allowed but in the
circumstances without any order as to costs.