Inside Madras HC verdict declaring TN Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 as unconstitutional

Madras High Court

Madras High Court: In writ petitions filed for declaring the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2010 (‘Amendment Act, 2010 ‘) as void, and ultra vires the Constitution, being repugnant to the Waqf Act, 1995, the Division Bench of Sanjay V. Gangapurwala, CJ., and D. Bharatha Chakravarthy*, J., has held that the Amendment Act, 2010 is void in relation to the Waqf Act and hence ultra vires the Constitution. Further, the Court clarified that on application by the respective Wakf 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 the petitioners or such encroachers and the Tribunal shall consider the same in accordance with the law.

Issues and Analysis

The Court noted that the petitioners are either tenants whose lease has expired/determined or are treated as encroachers in respect of the properties/premises belonging to the Waqf.

The Court took note of Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 (‘TNPP Act, 1975’) which provides for eviction of unauthorised occupants from public premises and for matters incidental thereto. Further, it also examined the Waqf Act, 1995, which provides for the better administration of the Waqf and for matters connected therewith or incidental thereto.

The Court noted that by the impugned Amendment Act, 2010, the definition of “public premises” under Section 2(e), sub-section 3 is added, by which, any premises belonging to a Waqf, registered with the Tamil Nadu Waqf Board, was also added to the definition of “public premises”. The effect of the Act is that the Estate Officer, who would be notified under the Act, was entitled to pass orders evicting the unauthorised occupants in respect of the waqf properties.

The Court also examined the background in which the amendment to the Wakf Act, 1995 was brought into. Further, it noted that the original provisions in the Wakf Act, 1995 were not stringent enough to deal with the 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 as these properties are for the benefit of the public and not for any individual. The Joint Parliamentary Committee on Waqf in its Third Report also requested all the State Governments to bring the waqf properties under the State Public Premises (Eviction of Unauthorised Occupant) Act. However, only a few states amended their respective Public Premises Acts. Therefore, Parliament decided to bring in an amendment to the Waqf Act, 1995.

To what Entry the legislative power in respect of the impugned enactment is to be traced?

The Court took note of Entry I (public order) and Entry 18 (Land) of List II, and Entries, namely, Entry 6, Entry 7, Entry 13 and Entry 28 of List III of the Seventh Schedule.

The Court followed the decision in Ashoka Marketing Ltd. v. Punjab National Bank, (1990) 4 SCC 406 , wherein it was held that the legislative power in respect of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as also the rent control legislations, would be traceable only to the Concurrent List.

Thus, the Court rejected the submissions to the contrary that the legislative power is traceable to Entry 18 or Entry 1 of the State list. Further, the Bench held that in pith and substance, the legislative power of the State in respect of the impugned enactment, as amended, is traceable only to Entries 6, 7, 13 and 28 of List III, the Concurrent List.

If the legislative power is traceable to the Concurrent List, then whether Presidential assent obtained in respect of the original enactment would save the impugned amendment?

The Court said that when the assent of the President was obtained for the TNPP Act, 1975 in the year 1976, the same was not applicable in respect of waqf properties. The present Wakf Act, 1995 itself came to be enacted later. The amendments to the Wakf Act, due which repugnancy is pleaded, was enacted only in the year 2013.

The Court noted that the definition of “encroachers” to include the tenants and other occupants whose lease have been expired/determined etc. And enabling provision to make application to the Waqf Tribunal and more specifically the bar in respect of the civil court, revenue court or any other authority were introduced only in the year 2013. Therefore, the requirement to receive the assent of the President itself would arise only after 2013 and, therefore, the assent given in the year 1976 can never be material.

Thus, the Court held that for the State legislation to prevail over the Central legislation, the subsequent assent of the President is mandatory. Thus, obtaining the assent in the year 1976 to the unamended TNPP Act, 1975 would not be sufficient to validate the statute under Article 254 of the Constitution of India after the amendments to the Wakf Act, 1995 in the year 2013.

If there is no Presidential assent, whether or not the impugned enactment be repugnant to the Central legislation, namely the Waqf Act, 1995, as amended in 2013?

Taking into account the scope of judicial review, the Court considered the issue of repugnancy of the impugned enactment with the Central Legislation.

The Court said that in the instant case, the primary consideration is as to whether the Parliament has intended to occupy the entire field. The scheme of the Waqf Act, 1995, read in its entirety, would lead to the only conclusion that in case, the person against whom action is initiated for eviction on the ground of unauthorized occupation of a Waqf property and raises the question of the property being a Waqf property, it is only the Waqf Tribunal that has the jurisdiction to decide the nature of the property. The Estate Officer, under TNPP Act, 1975, would not have the jurisdiction and/or authority to decide the dispute regarding the property’s nature.

Moreover, the Court noted that Section 85 of the Waqf Act, 1995, states that no suit or other legal proceedings shall lie in any Civil Court, Revenue Court, any other authority in respect of any dispute, question or other matter relating to any Waqf, Waqf property or other matter, which is required by or under the Waqf Act, 1995, to be determined by a Tribunal.

The Bench noted that the ambit and scope of Section 85 of the Waqf Act, 1995, has been enlarged by 2013 amendment. Section 85 of the Waqf Act, 1995, prior to the amended Act of 2013, did not contain the words “Revenue Court or any other authority” nor contained the word “Waqf”. However, while amending Sections 54 and 83 of the Waqf Act, 1995, thereby giving powers and jurisdiction to the Tribunal for eviction of unauthorized occupants, Section 85 of the Waqf Act, 1995, has been consciously amended and the jurisdiction of even the Revenue Court or any other authority is barred, thereby baring the jurisdiction of the Estate Officer under the TNPP Act, 1975 . The overriding effect of Section 85 of the Waqf Act, 1995, would not permit the Estate Officer under the TNPP Act, 1975 to exercise his jurisdiction in respect of the Waqf property.

Thus, the Court concluded 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.

The Court said 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. Therefore, 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 Bench also said that 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. Thus, a person in occupation of the Waqf property can also file a civil suit seeking injunction under Section 85 of the Waqf Act, 1995, in that event also, the Estate Officer, under the TNPP Act, 1975, cannot exercise his jurisdiction. It would result in two parallel proceedings. It may result in conflicting orders.

The Court clarified that an additional remedy or an alternative speedy or summary remedy by itself would not be illegal. However, as under 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.

The Bench held that the 2010 amendment to the TNPP Act, 1975 is repugnant. Thus, the State Legislation is void. The Court also quashed the respective show cause notices/orders issued against the petitioners.

[Mohmood Hussain v. State of Tamil Nadu, 2024 SCC OnLine Mad 955, Order dated 23-04-2024]

*Judgment Authored by: Justice D. Bharatha Chakravarthy

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