Sunday, May 26, 2024

Eviction of ‘waqf’ encroachers: Madras HC upholds central law, declares 2010 Tamil Nadu amendment unconstitutional

The Madras High Court, in a judgement, has declared a 2010 amendment which brought waqf properties under the ambit of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act of 1976, unconstitutional.

The verdict additionally entitled the Tamil Nadu Waqf Board Chief Executive Officer (CEO) to order eviction of encroachers in his/her capacity as Estate Officer.

A bench of Chief Justice Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy deemed the 2010 amendment made by the State legislature to be in contradiction to the central ‘Waqf Act of 1995.’

Moreover, it was stated that encroachers of waqf properties could be evicted only by waqf tribunals constituted in adherence to an amendment made to the Central legislation in 2013.

Lawyers led by Senior Counsel V. Raghavachari and S.R. Raghunathan maintained 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 consent is mandatory, since the amendment is repugnant with the Central law. The bench of judges agreed to the argument.

“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,” the verdict stated as conclusion.

The State government argued that the State law as well as the Central law could co-exist with the Tamil Nadu Wakf Board CEO’s power to order eviction, by invoking the State law, against occupation of waqf properties or to approach the tribunal, under the Central law, in case of dispute.

The original provisions of the Waqf Act, 1995 were not sufficient 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 beneficial to the public at large.

Following the recommendation, Tamil Nadu brought in the 2010 amendment, but many other States did not do so. As a result, the Parliament amended the Waqf Act in 2013 in order to ensure ‘uniformity’ across the country in eviction of encroachments.

The 2013 amendment states 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 came after the 2010 amendment to the State law, the bench observed that 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.

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