On Thursday (25th April), the Madras High Court ruled that the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act 33 of 2010 was invalid in regards to the Waqf Act, 1995, and therefore it violated the Constitution.
The amendment granted the Tamil Nadu Waqf Board Chief Executive Officer (CEO) the authority to act as Estate Officer, allowing them to order the eviction of encroachers on waqf properties covered by the Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act of 1976. However, now the court has ruled that the officer does not have the power to evict encroachments from Waqf properties.
The division bench of Chief Justice SV Gangapurwala and Justice D Bharatha Chakravarthy declared that encroachers of waqf properties could only be evicted through waqf tribunals constituted in response to the 2013 revision to Central legislation. The verdict came in the form of a series of writ petitions alleging that the State’s 2010 revision violated the Waqf Act of 1995. Some appeals were also filed to overturn a single-judge bench’s order issued in July 2023.
All of the petitioners and appellants were either renters whose leases had expired/determined, or they were considered encroachers on Waqf-owned properties/premises. On behalf of the petitioners/appellants, it was argued that the Waqf Amendment Act, 2013, modified the Waqf Act, 1995 especially to deal with the unauthorized occupation and eviction of waqf properties and that Section 54 clearly and categorically offers the procedure for dealing with such encroachments or unauthorized occupations.
The jurisdiction of the civil court, revenue court, and any other authority has been barred by the modified Section 85, which also includes the authority of the Estate Officer under the Tamil Nadu law, they claimed.
It was argued that because the Central Act seeks to cover all bases by providing a thorough method for evicting unlawful tenants from waqf assets, the challenged Tamil Nadu Act of 2010 is null and void. This is because any state legislation that conflicts with the Central Act would be replaced, they claim.
The Additional Solicitor-General of India, appearing on behalf of the Union of India, pointed out that the Union had not filed any affidavit supporting or opposing the petitioners. He contended that the Union was not required to take a stand because the challenge was to State legislation.
The Advocate-General for the State contended that both state and central laws might be in effect at the same time. Under this arrangement, the CEO of the Tamil Nadu Waqf Board might use state law to seek the expulsion of external encroachers on waqf property. Meanwhile, in circumstances involving complex title disputes, the CEO may seek relief from the Central Law Tribunal.
However, the division bench dismissed this contention.
The bench stated that the 2013 revision to the Central law followed the 2010 amendment to the State law. As a result, it may be assumed that Parliament was aware of the State amendment when it purposefully revised the Waqf Act in 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.
The Court additionally dismissed the Waqf Board’s/Waqfs’ position that if merely an application is presented to the Tribunal, the issue is determined by the Tribunal. It stated that the competence of the civil court, revenue court, or any other body to expel illegal tenants of waqf property is clearly excluded.
“The parliamentary law intends to secure the protection of waqf 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.
As a result, the court ruled that, upon application by the respective Waqf(s) or otherwise, the Chief Executive Officer is entitled to file an application against encroachers before the Waqf Tribunal under the Waqf Act, 1995 (as amended), and the Tribunal will consider the same in accordance with the law.
Furthermore, the court overturned the single-judge bench’s ruling and dismissed the proceedings launched against the appellants through the issuance of show cause notices under the authority of the 2010 State amendment.
