REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2232-2233 OF 2002
TAMIL NADU WAKF BOARD Appellant (s)
VERSUS
SYED ABDUL QUADER & ORS. Respondent(s)
J U D G M E N T
R.M. Lodha, J.
We have heard learned counsel for the parties.
2. The present appellant – Tamil Nadu Wakf Board – alongwith
Aminjikarai Mosque and Burial Ground represented by its Secretary
(hereinafter referred to as 'plaintiffs') filed a suit for a
declaration that the suit property was a Wakf property and for
directing S.A. Rasool, since deceased and now represented by his legal
representatives, who are respondent Nos. 2, 4, 5(i) to (iii), 6, 8 and
9, referred to as the legal representatives of the original defendant,
to hand over vacant possession of the suit property to the plaintiffs.
3. The case of the plaintiffs was that the suit property (land
and superstructure) was a Wakf property known as Aminjikarai Mosque
and burial ground. The suit property had been surveyed and published
in the Fort St. George Gazette on May 20, 1959 and the said
notification had not been questioned by any one. The suit property
was leased out to the father of the original defendant by the then
Muthavalli in 1921. Earlier the original defendant paid rent to then
Muthavalli but thereafter no rent had been paid and he asserted his
title over the property.
4. The legal representatives of the original defendant set up
the defence that they were governed by Madras City Tenants' Protection
Act, 1921 (for short, '1921 Act') as amended from time to time and in
the absence of any notice under Section 11 of the 1921 Act, the suit
was not maintainable. It was their case that the superstructure did
not belong to the Wakf and, therefore, the Wakf Board was not the
owner of the superstructure. They further stated that they had made an
application under Section 9 of the 1921 Act for sale of the land on
which superstructure had been built by their predecessor in title and
as lessees they were entitled to purchase the land from the
plaintiffs.
5. On the basis of the pleadings of the parties, diverse
issues were framed. The parties let in their evidence. After hearing
the parties, vide judgment and decree dated July 16, 1981, the trial
court decreed the plaintiffs' suit.
6. The legal representatives of the original defendant
preferred an appeal challenging the judgment and decree of the trial
court. The first appellate court, by its judgment dated February 22,
1984, dismissed the appeal and affirmed the decree passed by the trial
court. As regards superstructure, the legal representatives of the
original defendant were allowed to remove it.
7. The legal representatives of the original defendant
preferred Second Appeal before the High Court. The High Court, after
hearing the parties, by its judgment dated September 23, 1998, allowed
the Second Appeal and set aside the judgment and decree of the two
courts below and remanded the matter to the trial court to proceed
further with the application made by the legal representatives of the
original defendant under Section 9 of the 1921 Act.
8. The plaintiffs filed a Review Petition seeking review of
the judgment dated September 23, 1998. In the Review Petition, it was
brought to the notice of the High Court that by virtue of Section 3
of the Madras City Tenants' Protection (Amendment) Act, 1994 (for
short, '1994 Amendment Act'), the rights and privileges of the legal
representatives of the original defendant had ceased to be enforceable
and their application under Section 9 of the 1921 Act had abated.
9. The Review Petition was dismissed by the High Court on
April 28, 1999. This is how the present Civil Appeals, by special
leave, have arisen.
10. Section 9 of the 1921 Act, to the extent it is relevant,
reads as under :
“SECTION 9. APPLICATION TO COURT FOR DIRECTING THE LANDLORD TO
SELL LAND – (1)(a)(i) Any tenant who is entitled to
compensation under section 3 and against whom a suit in
ejectment has been instituted or proceeding under section 41 of
the Presidency Small Cause Courts Act, 1882, taken by the
landlord may, within one month of the date of the publication
of Madras City Tenants Protection Amendment Act, 1979 in the
Tamil Nadu Government Gazette or of the date with effect from
which this Act is extended to the municipal town, township or
village in which the land is situate or within one month after
the service on him of summons, apply to the Court for an order
that the landlord shall be directed to sell for a price to be
fixed by the Court, the whole or part of the extent of and
specified in the application.
xx xx xx xx”
11. 1921 Act came to be amended by the 1994 Amendment Act.
Section 3 of the 1994 Amendment Act reads as under:-
“Section 3. Certain pending proceedings to abate.-Every
proceeding instituted by a tenant in respect of any land owned
by any religious institution or religious charity belonging to
Hindu, Muslim, Christian or other religion and pending before
any court or other authority or officer on the date of the
publication of this Act in the Tamil Nadu Government Gazette,
shall, in so far as the proceeding relates to any matter falling
within the scope of the principal Act, as amended by this Act,
in respect of such land, abate, and all rights and privileges
which may have accrued to that tenant in respect of any such
land and subsisting immediately before the said date shall in so
far as such rights and privileges relate to any matter falling
within the scope of the principal Act, as amended by this Act,
cease and determine and shall not be enforceable:
Provided that nothing contained in this section shall be
deemed to invalidate any suit or proceeding in which a decree or
order passed has been executed or satisfied in full before the
said date.”
12. The provision contained in Section 3 of the 1994 Amendment
Act leaves no manner of doubt that all proceedings initiated by
tenants under 1921 Act in respect of lands owned by religious
institutions or religious charities belonging to Hindu, Muslim,
Christian or other religion and pending before courts or authorities
or officers on coming into force of 1994 Amendment Act have abated and
the tenants in respect of such lands have ceased to have any
enforceable rights. By virtue of Section 3 of the 1994 Amendment Act,
whatever rights and privileges the tenants had in respect of the lands
mentioned therein stood determined. The expression 'Every proceeding'
is too wide to include the proceedings initiated by the tenants under
Section 9 of the 1921 Act.
13. In view of Section 3 of the 1994 Amendment Act, the
application made by the legal representatives of the original
defendant being Interlocutory Application No. 16520 of 1973 under
Section 9 of the 1921 Act which is said to be pending before the trial
court does not survive and by operation of law that application has
abated. It is strange that when Second Appeal was heard by the High
Court, none of the parties brought to the notice of the learned Judge
the provisions of the 1994 Amendment Act. In the Review Petition, the
provisions of the 1994 Amendment Act were expressly referred to but
the learned single Judge referred to Section 2 only and did not advert
to Section 3 at all. The omission to consider Section 3 of the 1994
Amendment Act has rendered the impugned judgment and impugned order
legally unsustainable.
14. The requirements of main Section 3 of the 1994 Amendment
Act are fully met in the present case but unfortunately this aspect
was not considered by the High Court on both occasions, while
disposing of Second Appeal as well as Review Petition. The
Interlocutory Application No. 16520 of 1973 made by the legal
representatives of the original defendant has abated by operation of
law and does not survive for consideration by the trial court. The
central reason of the impugned judgment dated September 23, 1998 had
been the pendency of the application made by the legal representatives
of the original defendant under Section 9 of the 1921 Act but that
reason noted in the impugned judgment even did not exist on that date
in view of Section 3 of the 1994 Amendment Act. As noted above, by
virtue of Section 3 of the 1994 Amendment Act all rights and
privileges (including the right to purchase the land from the
plaintiffs under Section 9 of the 1921 Act) that the legal
representatives of the original defendant had in respect of the suit
property in terms of 1921 Act had been extinguished and ceased to be
enforceable.
15. It is not possible to sustain the impugned judgment dated
September 23, 1998. As a result of this, the order dated April 28,
1999 also has to go.
16. We, accordingly, allow these Appeals and set aside the
impugned judgment dated September 23, 1998 and the order dated April
28, 1999. Second Appeal No. 640 of 1986 titled “Kathija Bi & Ors. Vs.
The Tamil Nadu Wakf Board & Others” is restored to the file of the
Madras High Court for fresh hearing and disposal in accordance with
law.
17. Since the matter is very old, we expect the High Court to
hear and decide the Second Appeal expeditiously and preferably within
six months of the receipt of the order of this Court. No costs.
.......................J.
( R.M. LODHA )
NEW DELHI; .......................J.
OCTOBER 9, 2012 ( ANIL R. DAVE )
