Tamil Nadu: Madras High Court declares amendment of TN’s Waqf Act of 1995 as unconstitutional; jolt for DMK govt

The Madras High Court has declared the Tamil Nadu government’s legislation allowing the eviction of encroachers on Waqf properties as unconstitutional. The court’s decision deals a blow to the state’s efforts to address illegal occupation of Waqf land.

The contentious legislation, enacted by the Tamil Nadu (DMK) government in 2010, amended the Waqf Act of 1995 to bring Waqf properties under the purview of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act of 1976. This amendment empowered the Waqf Board’s Chief Executive Officer (CEO) to order the eviction of encroachers.

A bench comprising Chief Justice V. Gangapurwala and Justice D. Bharatha Chakravarthy declared the 2010 amendment unconstitutional on April 24th. The judges held that encroachers on Waqf properties could only be evicted by Waqf tribunals established pursuant to a 2013 amendment to the Central Act. They emphasised that the Waqf Act of 1995 is a Central legislation, and thus, state laws cannot override it.

The bench rejected arguments that both state and central laws could coexist, dismissing the state’s contention that invoking state law against encroachers was justified. They emphasised that the original provisions of the Waqf Act of 1995 were insufficient to address encroachment issues adequately.

Authoring the verdict, Justice Bharatha 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 Sacchar Committee recommended that the Public Premises (eviction of Unauthorised occupants) act 1971 be applied to waqf board properties too , as they were also for the benefit of public. Though the Tamil Nadu government brought an amendment in 2010, other states did not do so.  Following this, Parliament amended the Waqf Act in 2013  to ensure uniformity across the country in the eviction of encroachments. The amendment clearly said that the enroachers of waqf properties could be evicted only as per the procedures prescribed under the Central Government”.

The bench said, “The Parliament law intends to secure the protection of waqf board properties which needs 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 2013”.

The judges agreed with a army of advocates, led by senior counsel V Raghavachari and SR Raghunathan, that the 2010 amendment would exercise power under List III (Concurrent List) and not List II of (state list) of the Seventh Scheduled of the Constitution. It said, “Therefore, a presidential assent has been obtained for it in view of its repugnancy with the Central Law.”.

The division bench said that since the 2013 amendment to the central law was subsequent to the 2010 amendment to the state law, it should be presumed that Parliament was well aware of the state amendment, yet, it had consciously amended the Waqf Act of 1995.

In Tamil Nadu, the Waqf Board has been claiming ownership of Hindu and temple lands. In 2022, villagers in Thiruchendurai village were in for a shock after a land owner, trying to sell his land, was informed that he must get a no-objection certificate (NOC) from the Waqf Board, according to a recent letter to the sub-registrar’s office. According to the official, all the land of Thiruchendurai village now belongs to the Waqf Board, and if anyone wants to sell off the land, they will have to secure an NOC from the board in Chennai. In its manifesto, Congress wants to redistribute Mutt and Mandir lands to Muslims, but it does not talk about waqf and church properties.