TAMIL NADU WAKF BOARDversusSYED ABDUL QUADER & ORS.

                  [2012] 8 S.C.R. 1211


               TAMIL NADU WAKF BOARD                        A
                            v.
            SYED ABDUL QUADER & ORS.
         (Civil Appeal Nos. 2232-2233 of 2002)
                   OCTOBER 9, 2012
                                                            B
         [R.M. LODHA AND ANIL R. DAVE, JJ.]

     Tenancy - Madras City Tenants' Protection Act, 1921 -
ss.9 and 11 - Madras City Tenants' Protection (Amendment)
Act, 1994- s.3- Proceedings initiated by tenant-respondents C
under s.9 of the 1921 Act in respect of land owned by
appellant-Wakf Board and pending before the court - Effect
of coming into force of the 1994 Amendment Act - Held: In
view of s. 3 of the 1994 Amendment Act, the application made
under s.9 of the 1921 Act abated by operation of law and the D
tenant-respondents ceased to have any enforceable rights in
respect of such land.

     The plaintiff-Wakf Board (alongwith Aminjikarai
Mosque and Burial Ground represented by its Secretary) E
filed suit for a declaration that the suit property (land and
superstructure) was a Wakf property and for directing the
tenant-defendants to hand over vacant possession of the
suit property to them. The tenant-defendants set up the
defence that they were governed by Madras City
Tenants' Protection Act, 1921 as amended from time to F
time and in the absence of any notice under Section 11
of the 1921 Act, the suit was not maintainable. 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 G
and as lessees they were entitled to purchase the land
from the plaintiffs. The trial court decreed the plaintiffs'
suit. The first appellate court affirmed the decree. On

                           1211                             H
    1212    SUPREME COURT REPORTS               [2012] 8 SC R


A   second appeal, the High Court remanded the matter to
    the trial court to proceed further with the application made
    by the tenant-defendants under Section 9 of the 1921 Act.
    The plaintiffs filed Review Petition, bringing to the notice
    of the High Court that by virtue of Section 3 of the Madras
B   City Tenants' Protection {Amendment) Act, 1994, the
    rights and privileges of the tenant-defendants had ceased
    to be enforceable and their application under Section 9
    of the 1921 Act had abated. The Review Petition was
    dismissed by the High Court and, therefore, the present
c   appeals by the plaintiff-appellant Board.

        Allowing the appeals, the Court

        HELD: 1. The Madras City Tenants' Protection Act,
  1921 came to be amended by the Madras City Tenants'
D Protection {Amendment) Act, 1994. Section 3 of the 1994
  Amendment Act leaves no manner of doubt that all
  proceedings initiated by tenants under the 1921 Act in
  respect of lands owned by religious institutions or
  religious charities belonging to Hindu, Muslim, Christian
E 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
F 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.
  [Paras 11, 12] [1216-D; 1217-A-C]
G        2. In view of Section 3 of the 1994 Amendment Act,
    the application made by the tenant-defendants 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
H   Second Appeal was heard by the High Court, none of the
   TAMIL NADU WAKF BOARD v. SYED ABDUL                1213
              QUADER & ORS.

parties brought to the notice ·of the Single Judge of the A
High Court the provisions of the 1994 Amendment Act.
In the Review Petition, the provisions of the 1994
Amendment Act were expressly referred to, but the single
Judge referred to Section 2 only and did not advert to
Section 3 at all. [Para 13] [1217-D-F]                    B

    3. The requirements of Section 3 of the 1994
Amendment Act are fully met in the present case but this
aspect was not considered by the High Court on both
occasions, while disposing of Second Appeal as well as C
Review Petition. The Interlocutory Application made by
tenant-defendants under Section 9 of the 1921 Act has
abated by operation of law and does not survive for
consideration by the trial court. By virtue of Section 3 of
the 1994 Amendment Act all rights and privileges
(including the right to purchase the land from the D
plaintiffs under Section 9 of the 1921 Act) that the tenant-
defendants had in respect of the suit property in terms
of 1921 Act had been extinguished and ceased to be
enforceable. [Para 14] [1217-G-H; 1218-B-C]
                                                             E
     CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
2232-2233 of 2002.

     From the Judgment and Order of the High Court of Madras
dated 23.9.1998 in Second Appeal No. 640 of 1986 and dated     F
28.4.1999 in Review Application No. 31 of 1999.

    J.M. Khanna, Col. S.B. Kumar for the Appellant.

    K.K. Mani, Abhishek Krishna, S.A. Saud, Mohd. Pravez
Dabas, Shuaibuddin, Shakil Ahmed Syed fo the Respondents. G

    The Judgment of the Court was delivered by

     R.M. LODHA, J. 1. We have heard learned counsel for the
parties.
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    1214     SUPREME COURT REPORTS                      [2012] 8 S.C.R.


A          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
B   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
C   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
D   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
E   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.ofthe 1921 AC!, the suit was not maintainable. It was their
    case that the superstructure did not belong to the Wakf and,
F   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
G   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.
H
    TAMIL NADU WAKF BOARD v. SYED ABDUL                        1215
        QUADER & ORS. [R.M. LODHA, J.]

     6. The legal representatives of the original defendant             A
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         B
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             C
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.
                                                                        D
      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             E
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            F
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                               G
     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
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    1216     SUPREME COURT REPORTS                  (2012] 8 S.C.R.


A       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
B       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 applic,ation.
c       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:-
D
       "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
E
       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
F      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:
G
               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."
H
    TAMIL NADU WAKF BOARD v. SYED ABDUL                   1217
        QUADER & ORS. [R.M. LODHA, J.]

      12. The provision contained in Section 3 of the 1994 A
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 jnto force of 1994 B
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' c
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 D
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 E
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 F
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 G
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 tria~ court. The central reason of the H
    1218     SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A   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.
B   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
c   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.

D         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
E   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.
F
    B.B.B.                                        Appeals allowed.