Read Time: 09 minutes

Synopsis

The Madras High Court has held the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act 33 of 2010 void qua the Waqf Act, 1995 and hence ultra vires the Constitution.

The amendment vested the Tamil Nadu Waqf Board Chief Executive Officer (CEO) with the authority to act as Estate Officer, enabling them to order the eviction of encroachers on waqf properties which were brought under the ambit of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act of 1976.

The division bench of Chief Justice SV Gangapurwala and Justice D Bharatha Chakravarthy ruled that encroachers of waqf properties could only be evicted through waqf tribunals established following the 2013 amendment to the Central legislation.

The decision came in a bunch of writ petitions which said that the State's 2010 amendment was repugnant to the Waqf Act, 1995. Some appeals were also connected which had been filed to set aside a single judge bench's order passed in July 2023. 

All the petitioners and appellants were either tenants whose lease had expired/determined or were treated as encroachers in respect of the properties/premises belonging to the Waqf. 

On behalf of the petitioners/appellants, it was contended that the Parliament, through the Waqf Amendment Act, 2013, introduced amendments to the Waqf Act, 1995 specifically to deal with the unauthorised occupation of the waqf properties and eviction thereof and amended Section 54 clearly and categorically provides the procedure to deal with such encroachments or unauthorised occupation.

The jurisdiction of the civil court, revenue court and any other authority has been barred as per the amended Section 85 that would include the authority of the Estate Officer under the Tamil Nadu enactment also, they submitted. 

It was contended that since the Central enactment aims to cover all aspects by offering a comprehensive mechanism for evicting unauthorized occupants from waqf properties, the challenged Tamil Nadu Act of 2010 becomes void. This is because any state legislation conflicting with the Central Act would be superseded, they asserted. 

Additional Solicitor-General of India appearing on behalf of the Union of India pointed to the fact that the Union had not filed any affidavit either supporting or opposing the petitioners/ appellants. He submitted that the Union was not necessarily needed to be called upon to take a stand as the challenge was made to the State legislation.

The Advocate-General representing the State argued that both the State and Central laws could operate simultaneously. Under this arrangement, the Tamil Nadu Wakf Board CEO could utilize the State law to order eviction of external encroachers on waqf properties. Meanwhile, in cases involving complex title disputes, the CEO could resort to the tribunal established under the Central law.

However, the division bench rejected this argument. 

The bench said that the 2013 amendment to the Central law followed the 2010 amendment to the State law., therefore, it could be presumed that Parliament was aware of the State amendment when it consciously amended the Waqf Act of 1995.

"Thus, It can be seen that the Parliament wanted to deal with all kinds of encroachments and to provide for effective mechanisms with respect to the recovery of possession thereof," said the bench.

Court also rejected the contention on behalf of the Waqf Board/Waqfs that, if only an application is made to the Tribunal, the issue becomes determinable by the Tribunal. It said that the power of the civil court, revenue court or any other authority to evict unauthorised occupants in respect of the waqf property is specifically excluded.

"The parliamentary law intends to secure the protection of wakf properties which requires uniformity of law and consistency of its application all over the country. The Central Act is thus made as an exhaustive code on the subject. Thus, the State enactment is repugnant to the Waqf Act, 1995, as amended in the year 2013", the bench concluded. 

It also clarified that "any action taken by the Estate Officer in respect of the Waqf property, resorting to the Act 1 of 1976, would be coram non judice, non est and void".

In the result, court held that on application by the respective Wakf(s) or otherwise, the Chief Executive Officer will be entitled to move such application before the Wakf Tribunal under the Wakf Act, 1995 (as amended) against encroachers and the Tribunal shall consider the same in accordance with the law.

Also, court set aside the single judge bench's order and quashed the proceedings initiated against the appellants by issuance of show cause notices in exercise of the power of the 2010 State amendment.

Case Title: Bunch of petitions including Mohmood Hussain v. The State of Tamil Nadu and Others