Madras High Court Strikes Down 2010 Amendment To Public Premises (Eviction of Unauthorised Occupants) Act Bringing Wakf Properties Under Its Ambit

The bench of Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy observed that since an amendment was brought into the central act- Wakf Act, which already provided a mechanism to deal with encroachments, the state legislature was repugnant and void. The court emphasized that Section 85 of the Central legislation had expressly prohibited the jurisdiction of other authorities and thus there was no scope of harmony between the central and state legislation.

“The elementary rule of interpretation is to read the provisions harmoniously, so that the provisions of one statute do not become a dead letter. Viewing the matter from any perspective, there is no possibility to harmonise. Having left with no choice, we are declaring the State Legislation as repugnant and void and accordingly this question is answered,” the court ruled.

The court thus set aside the proceedings initiated by the Estate Officer, appointed under the State Legislation to remove encroachers, and directed the Estate Officer to make applications before the Wakf Tribunal which shall then proceed with the matter.

The court was hearing a batch of cases challenging the proceedings initiated by the Chief Executive Officer by issuing show cause notices under the State Act and challenging the legality of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Amendment Act.

The petitioners argued that the State legislation was repugnant to the Central legislation. It was argued that through the amendment, the Parliament intended to deal with every aspect of wakf and wakf property and thus the State Legislation could not operate the same field.

The State, on the other hand, argued that there was no obligation to obtain presidential assent as per Article 254 of the Constitution. It was argued that assent was necessary only if the State legislation, in pith and substance, is traceable to legislative powers under entries in the Concurrent list.

The Advocate General also argued that the State legislature merely provided another remedy regarding the eviction of unauthorized occupants and did not deal with the administration of wakf property. Thus, it was submitted that the doctrine of election would apply in such cases and the state enactment was not contradictory to the Central law.

The court applied the direct conflict test, occupied field test, and the subject matter test to trace the legislative power of the two legislations. The court noted that Section 85 of the Wakf Act overrode the provisions of the State enactment and would not permit the Estate Officer to exercise jurisdiction over the Wakf property.

The court also noted that the Parliament wanted to deal with all kinds of encroachments and to provide for effective mechanisms with respect to recovery of possession. Thus, when the central act had made an exhaustive code to deal with the wakf properties, the state enactment would run contrary to the central act.

While the court agreed that a statute providing alternative remedy by itself would not be illegal, considering the express prohibition in Section 85 of Central legislation, the court opined that the state amendment would be a dead letter, inoperative, and non-est. The court, thus, held the amendments to be void.

Counsel for the Petitioner: Mr.S.R.Raghunathan for M/s.Vigneshwar Elango and K.V.Karthik Subramanian

Counsel for the Respondents: Mr. P.S. Raman Advocate-General assisted by Mr. A.Edwin Prabakar State Government Pleader, Mr.AR.L.Sundaresan Addl. Solicitor-General assisted by Mr.N.K.Nithilavani, Mr.R.Abdul Mubeen

Citation: 2024 LiveLaw (Mad) 171

Case Title: Mohmood Hussain v State

Case No: W.P.No.20553 of 2023