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Wakf Act- 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. 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.

English: Fort St. George, in Madras (Chennai)

English: Fort St. George, in Madras (Chennai) (Photo credit: Wikipedia)

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 )

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