Madras High Court Declares Tamil Nadu Amendment Adding Waqf Properties to Public Premises Act Void

Chennai: The Madras High Court has delivered a significant judgment, declaring the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 (Act No. 33 of 2010) as void, repugnant to the Central Waqf Act, 1995 (as amended in 2013), and consequently ultra vires the Constitution.

A Division Bench of the High Court, in a common judgment authored by Justice D. Bharatha Chakravarthy , held that the State amendment, which brought properties belonging to Waqfs registered with the Tamil Nadu Waqf Board under the purview of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975, cannot stand in the face of the comprehensive provisions introduced by the Parliament in the Waqf Act through its 2013 amendment.

The judgment came in response to a batch of writ petitions and writ appeals filed by tenants and alleged encroachers of Waqf properties who had been issued show cause notices or eviction orders by the Chief Executive Officer of the Waqf Board, acting as the Estate Officer under the Tamil Nadu Act. The petitioners argued that after the enactment of the Central Waqf Amendment Act, 2013, the State amendment of 2010 became void due to repugnancy under Article 254 of the Constitution.

Background of the Legislation

The Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975, allowed for the summary eviction of unauthorised occupants from 'public premises', initially defined to include state government, government companies, corporations, and local authorities' properties. The 2010 amendment by the Tamil Nadu government expanded this definition to include properties belonging to Waqfs registered with the State Waqf Board.

Meanwhile, the Parliament enacted the Waqf Act, 1995, to provide for the better administration of Waqfs. Following recommendations from the Sachar Committee and a Joint Parliamentary Committee, the Waqf Act was significantly amended in 2013. These amendments introduced a definition of "encroacher" which explicitly included persons whose tenancy or lease had expired or been terminated. Crucially, the amended Act provided a specific mechanism under Sections 54 and 83 for the Chief Executive Officer to apply to the Waqf Tribunal for eviction orders against encroachers. Section 85 of the amended Central Act specifically barred the jurisdiction of "civil court, revenue court and any other authority" in respect of matters required to be determined by the Tribunal, and Section 108A gave the Central Act overriding effect.

Arguments Presented

The petitioners/appellants contended that the Central Waqf Amendment Act, 2013, constitutes a complete code for dealing with eviction from Waqf properties. They argued that the Central Act's specific procedure requiring application to the Waqf Tribunal directly conflicts with the State Act's procedure allowing the Estate Officer (CEO) to pass eviction orders himself. This, coupled with the express bar of jurisdiction for "any other authority" in Section 85 and the overriding clause in Section 108A of the Central Act, demonstrates Parliament's intent to occupy the entire field, rendering the State amendment repugnant and void under Article 254(1). They emphasized that the Presidential assent obtained for the original 1976 State Act was not sufficient to save the 2010 amendment from repugnancy with the subsequent 2013 Central Act.

The State of Tamil Nadu argued that its legislative power for the eviction of unauthorised occupants from buildings is traceable to entries in the State List (List II), particularly Entry 18 (Land) or Entry 1 (Public Order), in which case the question of repugnancy under Article 254 would not arise. Alternatively, they submitted that the State Act merely provides an additional remedy for eviction and can harmoniously operate alongside the Central Act. They contended that the doctrine of election would apply, allowing authorities to choose the remedy under either Act, and that the bar under Section 85 of the Waqf Act only applies once an application is made to the Tribunal.

The Waqf Board and Waqfs largely supported the State's position, arguing for harmonious construction and the availability of alternative remedies, especially given the rampant encroachments on Waqf properties.

Court's Findings on Legislative Competence and Repugnancy

The High Court first determined the source of legislative power for the State enactment. Reviewing several Supreme Court precedents, including Indu Bhushan Bose , Accountant and Secretarial Services Private Limited , and Ashoka Marketing Limited , the Bench held that legislation concerning landlord-tenant relations and eviction from buildings falls under the Concurrent List (List III), specifically Entries 6 (Transfer of property other than agricultural land), 7 (Contracts), 13 (Civil procedure), and 28 (Charities and charitable institutions). The Court explicitly rejected the argument that the power is traceable to Entry 18 of the State List, relying on authoritative pronouncements of the Supreme Court, including Ram Krishan Grover .

On the issue of Presidential assent, the Court held that the assent obtained for the original 1976 State Act was insufficient to save the 2010 amendment from repugnancy with the 2013 Central Act. Repugnancy arose after the 2013 Central amendment, necessitating a fresh assent for the specific State law being allowed to prevail over the Central law, which was not obtained.

Applying the tests of repugnancy, the High Court found a clear conflict. Citing the Supreme Court's judgment in Forum for People's Collective Efforts , the Bench held that the 2013 amendments to the Waqf Act, particularly the definition of 'encroacher', the specific procedure for eviction via the Tribunal, the explicit bar under Section 85 covering "any other authority", and the overriding clause in Section 108A, demonstrate Parliament's clear intention to occupy the entire field regarding eviction from Waqf properties.

Furthermore, the Court found a direct conflict between the State and Central procedures. Under the State Act, the Estate Officer passes the eviction order, while under the Central Act, the Chief Executive Officer must apply to the Waqf Tribunal. The Bench noted that it is impossible to comply with the State procedure (Estate Officer ordering eviction) without disobeying Section 85 of the Central Act, which bars such authority's jurisdiction.

Pivotal Reasoning from the Judgment:

The Court emphasized the pervasive nature of the bar under Section 85 of the Central Waqf Act, as interpreted by the Supreme Court in Rashid Wali Beg v. Farid Pindari :

"A major distinguishing feature between Sections 6(1) and 7(1) on the one hand and Section 83 on the other hand is that the dispute, question or other matter referred to in Sections 6 and 7 are confined only to what is included in the list of waqfs prepared under Section 4 and published under Section 5. The words “specified .... in the list of waqfs” found in Sections 6(1) and 7(1), are conspicuous by their absence in Section 83(1). Therefore, it is clear that Sections 6 and 7 speak only about two categories of cases, but Section 83 covers the entire gamut of possible disputes in relation to any waqf or waqf property."

And further on the scope of Section 85:

"A conjoint reading of Sections 6, 7 and 85 would show that the bar of jurisdiction of civil court contained in Section 6(5) and Section 7(2) is confined to Chapter II, but the bar of jurisdiction under Section 85 is all pervasive."

The Bench concluded:

"It can be seen that there are comprehensive provisions which are made in the form of Section 3(ee), the definition of “encroachers”; Section 54 providing for a method of eviction of encroachers; and Section 85 postulating the intention of the Parliament to occupy the field by itself by employing negative language that no civil court, revenue court or any other authority shall exercise the jurisdiction. The intention of the Parliament is further fortified by inclusion of Section 108A, which contains a provision as to the overriding effect of the Waqf Act, 1995."

Rejecting the "additional remedy" argument, the Court stated:

"But because of the negative language contained in Section 85 of the Central legislation, when the Parliament has expressly prohibited the Jurisdiction of such other authorities and the Central Act is expressly made to override other enactments, the contention of the additional remedy cannot be accepted. Thus the additional remedy is in derogation of Section 85."

Decision and Implications

The Madras High Court allowed the writ petitions and writ appeals, declaring the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 (Act 33 of 2010) void qua the Waqf Act and ultra vires the Constitution.

Consequently, the show cause notices and proceedings initiated against the petitioners/appellants by the Chief Executive Officer acting as Estate Officer under the State Act were quashed.

The Court clarified that the Waqf authorities are at liberty to initiate fresh proceedings for eviction against such persons under the provisions of the Central Waqf Act, 1995, as amended by the 2013 Act, by filing applications before the competent Waqf Tribunal in accordance with law.

This judgment clarifies the legal framework governing eviction from Waqf properties in Tamil Nadu, establishing that only the procedure prescribed under the Central Waqf Act, 1995, as amended, can be resorted to, reinforcing the exclusive jurisdiction of the Waqf Tribunals in such matters.

Case Details: - Court: Madras High Court - Bench: Division Bench (Judgment authored by D. Bharatha Chakravarthy , J.) - Case Numbers: W.P.Nos.6667 of 2013, 6561 and 6767 of 2022, 20553 and 22931 of 2023, 1568 and 8121 of 2024 (and connected Writ Appeals). - Date of Judgment: Not explicitly mentioned in the provided text, but the petitions/appeals relate to matters from 2013 onwards. - Legislation Examined: Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 (Act 33 of 2010) and Waqf Act, 1995 (Act 43 of 1995) as amended by Act 27 of 2013.

The judgment underscores the principle of repugnancy under Article 254, where a State law concerning a Concurrent List subject must yield to a Central law that is intended to be a complete and exhaustive code, especially when there is a direct conflict and no subsequent Presidential assent has been obtained for the State law.