Supreme Court of India
NAJEEB AND ORS.versusSTATE OF KERALA
- Citation
- 2008 INSC 281
- Decided
- 3 March 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
Section 81(1)(t)(iii) of the Kerala Land Reforms Act, 1963 pertains only to exemption and its proviso does not govern the inclusion of land in the ceiling; consequently, the Wakf’s land can be exempted if the entire income is devoted to the trust, and the High Court’s order was set aside.
Summary
In Najib & Ors. v. State of Kerala, the Supreme Court examined whether land held by a Madrassa, declared as a Wakf, could be exempted from land‑ceiling provisions under Section 81(1)(t)(iii) of the Kerala Land Reforms Act, 1963. The Taluk Land Board had exempted 2.67,250 acres based on a report that the income was used for the Madrassa, but the Kerala High Court set aside the exemption, holding that the land was not owned by a public trust on the appointed day and that the entire income was not shown to be appropriated for the Wakf. The Supreme Court clarified that the proviso to Section 81(1)(t)(iii) deals only with exemption and does not affect the inclusion of land in the ceiling calculation, and that registration of the Wakf under the Wakf Act is not a prerequisite for exemption. The Court accepted the settlement deeds proving the land’s dedication to the Madrassa, set aside the High Court’s order, and allowed the appeal, directing the Taluk Land Board to reconsider the matter in accordance with law.
Issues considered
- Whether Section 81(1)(t)(iii) of the Kerala Land Reforms Act, 1963 applies to land held by a Wakf and whether its proviso is relevant to the inclusion of such land in the land‑ceiling calculation.
- Whether a Wakf must be registered under the Wakf Act to claim exemption under Section 81(1)(t)(iii).
- Who bears the burden of proving that the entire income from the land is appropriated for the Wakf.
- Whether the land was owned or held by a public trust on 1 January 1970, the appointed day for exemption under the Act.
Legislation cited
- Kerala Land Reforms Act, 1963s. 103, s. 81(1)(t)(iii), s. 85, s. 87
- Wakf Act
Subjects
land reformsexemptionWakfpublic trustKerala Land Reforms ActSection 81land ceilingMadrassaregistrationburden of proof
Judgment
[2008] 3 S.C.R. 959
NAJEEB AND ORS. A
II.
STATE OF KERALA
(Civil Appeal No. 1910 of 2002)
MARCH 3, 2008
B
[DR. ARIJIT PASAYAT, P. SATHASIVAM
. ANO AFTAB ALAM, JJ,]
JS~ra/a Land Reforms Act, 1963 - ss.81(1)(t)(iii) -
ExemP/ion of land under - Question as to whether the entire c
income from the property in dispute was appropriated for the
benefit of Wakf and whether the property was liable to be
exempted under s.81(1}(t}(fil) - Taluk Land Board proceeded
to exempt 2. 67. 250 acres of land under s. 81 (1 )(t)(iii) -
Respondent.state filed civil revision petition - With reference
0
~ t to s. 81 (1 )(t)(iii), the High Court held that ft had to be shown
that the land was owned or held by a public trust which
expression included a Wakf, but there was nothing to show
that the la.nds In question were owned or held by a pub/le trust
on the appointed day, I.e. 1.1.1970 to which date exemption
under s. 81 relates - Holding that the dec/arant-appellant failed E
to prove that the land in question qualified for exemption, High
Court allowed tha revision petition - Correctness of - Held:
Not correct - Question of exemption arises 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 F
t proviso (I) or (Ii) ~ It is not the case of the State that the Wakf in
issue was required to be registered~ Appel/ants wflrn dlre9fed
to file affidavit along with documents to show that the property
stood in the name of Madrassa - Documents fl/ed show that
the settlement deeds were exeouted in the years 1952, 1958, 0
1962 and 1966.
The predee@S§Qr of deel~mmt·!!IPPellant hacl flied a
$@tement under §.85 e>f the Kera!!!! !...and Reform§ Aet,
9~9 H
960 SUPREME COURT REPORTS (2008] 3 S.C.R.
A 1963. On the question as to whether the entire income
from the property in dispute was appropriated for the r .,
benefit of Wakf and whether the property was liable to be
exempted under Section 81(1)(t)(iii) of the Act, the Taluk
Land Board accepted the report of an authorised officer
B to the effect that a Madrassa registered with the Kerala
Wakf Board was functioning and that income from certain
lands having an extent of 2.67.250 acres was being used+ '
for the purpose of the Madrassa. Thereafter the Taluk Land
Board proceeded to exempt 2.67.250 acres of Ian~ ynder
c Section 81 (1 )(t)(iii) of the Act. It held that the declari«t was
liable to surrender only an extent of 0.26.250 acres of land.
Respondent-State filed civil revision petition under
s.103 of the Act contending that the property held by the
so-called Wakf of which the declarant was Muthavalli was
D to be included while determining the extent of land held •
by the predecessors of the appellant. High Court with f
reference to Section 81 (1 )(t)(ill) of the Act held that it had
to be shown that t~e land was owned or held by a public
trust which expression included a Wakf and the proviso
E thereto provides that the exemption is available to a public
trust only if the entire income of such lands is appropriated
for the trust concerned. The Court held 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
F date exemption under Section 81 relates and further that •
the declarailt-appellant failed to prove that the land in
question qualified for the exemption. Accordingly, it 1
allowed the civil revision petition. Hence the present
appeal.
· G Allowing the appeal, the Court
HELD: 1.1. Section 81(1)(t)(iii) of the Kerala Land
Reforms Act, 1963 relates to exemption. The proviso .
thereto has no role to play while dealing with the question 1 ~
whether the land was to be included in the holding of the
H
NAJEEB AND ORS. v. STATE OF KERALA 961
[DR. ARIJIT PASAYAT, J.]
'i declarant. The question of exemption arises only when A
" 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.
[Para 9] [965- E, F] B
• 1.2. This Court by an earlier order· 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 filed clearly show that the
settlement deeds were executed ln the years 1952, 1958, c
1962 and 1966. Authenticity of the documents has not
been questioned. [Para 10] [966-D, E]
CIVILAPPELLATE JURISDICTION: Civil Appeal No.1910
of 2002.
• 'I'
D
From the final Judgment and Order dated 3.4.2000 of the
High Court of Kerala at Ernakulam in C.R.P. No. 950of1992.
T.L.V. Iyer, T.G. Narayanan Nair for the Appellants.
P.V. Dinesh and Sindhu T.P. for the Respondent. E
The Judgment of the Court was delivered by
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. F
~
2. Respondent-State of Kerala filed a Civil Revision
Petition under Section 103 of the Kera la 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 G
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.
H
962 SUPREME COURT REPORTS [2008] 3 S.C.R.
A 3. Background facts in a nutshell are as follows:
The predecessor of the appellants (hereinafter called the
• -r
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
B 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
c land is also liable to be surrendered by the declarant. The
declarant filed C.R.P.4053of1977 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
D Court took the view that such subsequent acquisitions could be
considered only in a proceeding Initiated under Section 87 of f'
..
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
E 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
.
F 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 cl aim 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
G Madrassi'l 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 ~
le
seen to be written up recently and there was nothing to show
that those accounts related to the properties in question. The
H
NAJEEB AND ORS. v. STATE OF KERALA 963
[DR. ARIJIT PASAYAT, J.]
~ Taluk Land Board also entered a finding that its enquiry revealed A
~
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 B
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.3618of1982. 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
c
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 D
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 E
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
F
of an authorised officer to the effect that a Madrassa was
r
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 G
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.
H
964 SUPREME COURT REPORTS [2008] 3 S.C.R.
A 4. Stand of the State before the High Court was that burden t
~
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
B 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
c available to a public trust only if the ehtire 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
D 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.
E
6. Reference was made to Section 81(1)(t)(iii) which
relates to exemption. The proviso appears in the Chapter Ill which
deals with the exemption. In the instant case, the Wakfwas not
claiming any exemption. Therefore, the requirement of Section
81 (1 )(t)(iii) could not have been pressed into service by the High
..
F
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.
G
7. Learned counsel for the respond.ent-State supported the
order.
8. Section 81 (1 )(t)(iii) from which the High Court has placed
reliance reads as follows:
H
NAJEEB AND ORS. v. STATE OF KERALA 965
[DR. ARIJIT PASAYAT, J.]
"81 Exemption: - (1) the provisions of this Chapter shall A
not apply to -
)()()()( )()()()(
(t) lands owned or held by -
a University established by law; or 8
(i)
• (ii) a religious, charitable or educational institution of a
public nature; or
(iii) a public trust (which expression shall include a wakf):
c
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 D
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 Ill of the Act. As rightly contended E
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 F
r
exemption is sought for cin 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.4053/77-8. It was,
inter-alia, held as follows: G
. "Similarly another extent of 3.13 and odd acreswas added
on to the petitioner's account by holding that certain
I
~ 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 H
966 SUPREME COURT REPORTS [2008] 3 S.C.R.
A that the property belonged to a Wakf is that the Wakf has r
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
B 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
c 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
D
Taluk Land Board is directed to reconsider the question f' ~
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
E 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
F 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 ..
B.B.B. Appeal allowed.
G
f ,.....
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