The Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 is void as it is repugnant to the Waqf Act, 1995, which provides an exclusive mechanism for eviction of unauthorized occupants of waqf properties.

ORDER :

(D. Bharatha Chakravarthy, J.)

(Prayer in W.P.No.20553 of 2023: Petition filed under Article 226 of the Constitution of India to issue a writ of declaration declaring that Tamil Nadu State Act, Act 33 of 2010 is repugnant to the Waqf Act, 1995, as amendment by Act, 2013 (Act 27 of 2013) and void.)

A. THE WRIT PETITIONS/WRIT APPEALS:

All these writ petitions are with a prayer to declare the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act (Act No.33 of 2010) as void, ultra vires the Constitution, being repugnant to the Waqf Act, 1995, as amended by the Act No.27 of 2023. The writ appeals are filed to set aside the common order dated 03.07.2023 passed by the learned Single Judge in W.P.Nos.17331, 13506, 13510, 13514, 144224, 14426, 14428, 14432, 16963, 17164, 17399, 17371, 18475 and 18479 of 2023.

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

B. THE STATUTORY FRAMEWORK:

2. The Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 (Act 1 of 1976) was enacted by the State of Tamil Nadu and it also received the assent of the President on 3rd January, 1976. The Act is to provide for eviction of unauthorised occupants from public premises and for matters incidental thereto. Section 2(d) defines “premises” as follows:

“2(d) “premises” means any land or any building or hut or part of a building or hut and includes,-

(i) gardens, grounds and outhouses, if any, appertaining to such building or hut or part of a building or hut; and

(ii) any fittings affixed to such building or hut or part of a building or hut for the more beneficial enjoyment thereof.”

2.1 Section 2(e) originally defined “public premises” as follows: “2(e) “public premises” means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the Government, and includes –

(1) any premises belonging to, or taken on lease by, or on behalf of-

(i) any company as defined in section 3 of the Companies Act, 1956 (Central Act 1 of 1956) in which not less than fifty-one per cent of the paid up share capital is held by the Government; and

(ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (Central Act 1 of 1956) or a local authority) established by or under any law and owned or controlled by the Government; and

(2) any premises belonging to, or vested in, a local authority or any Board constituted under any law.”

2.2 Section 3 enables the Government by notification to appoint Estate Officers. Section 4 enables the Estate Officer, if he is of the opinion that any person is in unauthorised occupation of any public premises and that they should be evicted, to issue a notice in writing and, thereafter, pass an order under Section 5 ordering eviction of the unauthorised occupants. An appeal is provided to the District Judge under Section 9 of the Act as against the order of eviction. Section 15 of the Act bars the jurisdiction of a civil court to entertain any proceeding in respect of eviction of unauthorised persons under the Act. Under Section 20, the State Government is also vested with the powers to frame rules to carry out the purposes of the Act.

(II) THE WAQF ACT, 1995:

3. In the year 1995, the Parliament enacted the Waqf Act, 1995 (Act No.43 of 1995), [for short, “the Waqf Act, 1995”] which is to provide for the better administration of the Waqf and for matters connected therewith or incidental thereto. The said Act repealed the Waqf Act, 1954 (Act No.29 of 1954), as amended, while saving the actions taken under the erstwhile Act. The Act defines “waqf” under Section 3(r) as follows:

“3(r) “waqf” means the permanent dedication of any person of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-

(i) a waqf by user but such waqf shall not cease to be a waqf