The Madras High Court has declared unconstitutional, a 2010 amendment which brought waqf properties under the ambit of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act of 1976, and consequently empowered the Tamil Nadu Waqf Board Chief Executive Officer (CEO) to order eviction of encroachers in his/her capacity as Estate Officer.
Chief Justice Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy declared the 2010 amendment made by the State legislature to be repugnant to the Waqf Act of 1995, a Central legislation. The judges held that encroachers of waqf properties could be evicted only by waqf tribunals constituted pursuant to an amendment made to the Central legislation in 2013.
The judges agreed with a battery of lawyers led by Senior Counsel V. Raghavachari and S.R. Raghunathan that the 2010 amendment had been brought in by exercising the power under List III (Concurrent list) and not List II (State list) of seventh schedule to the Constitution and therefore, a Presidential assent ought to have been obtained for it, in view of its repugnancy with the Central law.
The Bench refused to accept the State government’s contention that the State law as well as the Central law could co-exist with the Tamil Nadu Wakf Board CEO being given the option of ordering eviction, by invoking the State law, against rank outsiders who had occupied waqf properties or to approach the tribunal, under the Central law, if there was a complicated dispute over title.
Authoring the verdict, Justice Chakravarthy said, the original provisions of the Waqf Act, 1995 were not stringent enough to deal with encroachment or illegal occupation of waqf properties. Therefore, the Sachar Committee recommended that the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 should be applied to waqf properties too, as these properties were also for the benefit of public at large.
Though Tamil Nadu brought in the 2010 amendment following the recommendation, many other States did not do so. Therefore, the Parliament amended the Waqf Act in 2013 in order to ensure uniformity across the country in eviction of encroachments. The 2013 amendment clearly stated that the encroachers of waqf properties could be evicted only as per procedures prescribed under the Central enactment.
Since the 2013 amendment to the Central law was subsequent to the 2010 amendment to the State law, it should be presumed that the Parliament was well aware of the State amendment and yet, it had consciously amended the Waqf Act of 1995. “It can be seen that the Parliament wanted to... provide effective mechanisms with respect to recovery of possession,” the Bench said.
It concluded the exhaustive verdict, stating: “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. Therefore, the State enactment is repugnant to the Waqf Act of 1995 as amended in the year 2013.”
