http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  1910 of 2002

PETITIONER: Najeeb and Ors

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 03/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.1910 OF 2002

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of the learned  Single Judge of the Kerala High Court allowing the Civil  Revision Petition.   

2.      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.                3.      Background facts in a nutshell are as follows: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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.        4.      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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.   

5.      Learned counsel for the appellants submitted that the  basic approach of the High Court was wrong.                    6.      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.

7.      Learned counsel for the respondent-State supported the  order.

8.      Section 81(1)(t)(iii) from which the High Court has placed  reliance reads as follows: "81 Exemption: - (1) the provisions of this  Chapter shall not apply to \026 xxxx                            xxxx  (t)     lands owned or held by \026 (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 \026 (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;"  

9.      It is a part of Chapter III of the Act.  As rightly contended  by learned counsel for the appellants it relates to exemption.   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 follows:      

"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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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."          

10.     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.    

11.     Looked from any angle, the impugned order is clearly  unsustainable in view of the position in law highlighted above.     12.     The appeal is allowed but in the circumstances without  any order as to costs.