JUDGMENT (Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, calling upon the records of the 1st respondent in PP.No.162/Chen/2022 dated 31.03.2023 and thereby quash the same as illegal, ultravires and arbitrary.) Common Order 1. The particulars of the petitioners and the proceedings under challenge in these writ petitions are tabulated hereunder: S.No. WRIT PETITION NO. NAME OF THE PETITIONER NAME OF THE WAQF PROCEEDINGS UNDER CHALLENGE 1 W.P No. 17164/2023 A.Abdul Salam Jumma Mosque Notice issued by the 1st respondent (Estate Officer) in Case No. PP/2/Cudd/2023 dated 16.02.2023. 2 W.P. No. 16963/2023 S.Ajaz Syed Sadiq Mosque and Dargah Waqf Notice issued by the 1st respondents (Estate Officer and the Chief Executive Officer) in Form-A, Case No. PP/233/TVLR/2022 and quashed the same dated 12.12.2022 3 W.P. No. 17399/2023 Iqbal Ahmed Syeed Begum Saheba Waqf Show Cause notice in Case No. PP/254/CHEN/2022 dated 08.02.2022 issued by 1st respondents (Estate Officer and the Executive Officer) 4 W.P. No. 17371/2023 P.Murali Jumma Masjid Impugned show cause notice in case no. PP/4/CUDD/2023 dated 16.02.2023 by the 1st respondent (Estate Officer). 5 W.P. No. 17331 of 2023 Ansar Bee Nawab Fazilamuthunnisa Begum Sahiba Mosque Impugned Order in case no. PP. No. 162 dated 31/03/2023passed by the 1st respondent (Estate Officer) 6 W.P. No. 18745 of 2023 K.P.K. Khaja Mohideen and Sulthan Ibrahim Mohideen Aandavar Pallivasal, Muslim Jammath Committee Show Cause Notice and Impugned Petition in PP No. 112/MDU/2021 dated 27/06/2022 passed by the 1st Respondent. 7 W.P. No. 18749 of 2023 R. Chelladurai Mohideen Aandavar Pallivasal, Muslim Jammath Committee Show Cause Notice and Impugned Petition in PP No. 112/MDU/2021dated 27/06/2022 passed by the 1st Respondent. 8 W.P. No. 13510 of 2023 Mohmood Hussain Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Award passed by the 1st Respondent in PP No. 164 of 2022 dated 31/03/2022. 9 W.P.No. 13514 of 2023 Mohmood Hussain Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Award passed by the 1st Respondent in PP No. 163 of 2022 dated 31/03/2023. 10 W.P.No. 14426 of 2023 Dr.Hisamuddin Papa Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 168/CHEN/ 2022 dated 31/03/2023. 11 W.P.No. 14428 of 2023 Dr.Hisamuddin Papa Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 167/CHEN/ 2022 dated 31/03/2023. 10 W.P.No. 14426 of 2023 Dr.Hisamuddin Papa Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 168/CHEN/ 2022 dated 31/03/2023. 11 W.P.No. 14428 of 2023 Dr.Hisamuddin Papa Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 167/CHEN/ 2022 dated 31/03/2023. 12 W.P.No.14432 of 2023 Dr.Hisamuddin Papa Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 169/CHEN/ 2022 dated 31/03/2023. 13 W.P.No.14424 of 2023 Dr.Hisamuddin Papa Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 166/CHEN/ 2022 dated 31/03/2023. 14 13507/2023 Mohmood Hussain Nawab Fazilamuthunnisa Begum Sahiba Mosque & Endowment Wakf Impugned Order passed by the 1st Respondent in PP No. 161/ 2022 dated 31/03/2023. 2. The subject matter of challenge in all these writ petitions pertains to either the notices issued by the Estate Officer under Section 4 of the Tamil Nadu Public Premises [Eviction of unauthorised occupants] Act, 1975 (for brevity hereinafter referred to as “the PP Act”) or the order of eviction passed by the Estate Officer under Section 5 of the PP Act. 3. The notices issued or the orders passed by the Estate Officer under the PP Act, as the case may be, have been challenged only on the ground that the authority has acted without jurisdiction and to establish the same, the petitioners have questioned the validitiy of the provision under Section 2(e)(iii) of the PP Act. 4. The learned Senior Counsel/Counsel appearing on beahlf of the petitiners cumulatively assailed the jurisdiction of the concerned authority on the following grounds: i. The PP Act received the assent of the President on 03.01.1976. By Act 33 of 2010 Clause (iii) was added to the definition of public premise under Section 2(e) of the PP Act and any premises belonging to a Wakf registered with the Tamil Nadu Wakf Board was also brought within the purview of public premises. It is to be noted that Act 33 of 2010 did not receive the presidential assent. The Chief Executive Officer of the Tamil Nadu Wakf Board was appointed as the Estate Officer under Section 3 of the PP Act, by the Governor of Tamil Nadu and thereby the said authority was conferred with the powers of the Estate officer under the Act. The Chief Executive Officer of the Tamil Nadu Wakf Board was appointed as the Estate Officer under Section 3 of the PP Act, by the Governor of Tamil Nadu and thereby the said authority was conferred with the powers of the Estate officer under the Act. Act 27 of 2013 was brought in by the Union of India and certain amendments were made to the Wakf Act, 1995 (hereinafter referred to as “the Act). The amendments specifically sought to deal with Wakf related properties and the relevant statement of objects and reasons at Clause 3(ii) made it clear that the legislature wanted to strengthen and to deal effectively with the issues of encroachment and alienation of Wakf properties. Accordingly, Section 54 of the Act was also amended, and it provided for the procedure for the eviction of an encroacher of a Wakf property. Thereby, Act 27 of 2013 will supersede Act 33 of 2010 since both deals with the same subject matter, that is, removal of encroachers from Wakf property and to that extent, the State Law became repugnant to the Central Law and is void in view of Article 254(1) of the Constitution of India (hereinafter referred to as “the Constitution”). ii. The amendment to the Act also brought in Section 85 and Section 108-A whereby it barred the jurisdiction of any Civil Court, Revenue Court and any other authority in respect of any dispute, question or other matter relating to the Wakf property which is required to be determined by a Tribunal under the Act and it also brought in an overriding effect to the Act not withstanding anything inconsistent contained in any other law for the time being in force, other than this Act. In view of the same, after the coming into force of the amendment Act, the Estate Officer cannot exercise his power under the PP Act, since to that extent, the PP Act stood over ridden. iii. The PP Act is a general Act and the Wakf Act is a special Legislation and is also a Central Enactment and hence, the subsequent Legislation of the Parliament will supersede the earlier State Legislation. iv. iii. The PP Act is a general Act and the Wakf Act is a special Legislation and is also a Central Enactment and hence, the subsequent Legislation of the Parliament will supersede the earlier State Legislation. iv. The PP Act will apply only to the properties belonging to the Government or the Government Companies or Corporations owned and controlled by the Government or to the local authority or any board constituted under any law and which is under the ownership and control of the Government. In view of the same, the insertion of Section 2(e)(iii) of the PP Act is misconceived and even if it had been sent for assent, it would not have received the presidential assent. v. There is repugnancy/inconsistency between the State Legislation and the Central Legislation since the Act provides for a mechanism for determination of the status of a person in occupation of a Wakf property and also sufficient safeguards have been given by providing a procedural mechanism. However, under the PP Act, there is no such determination of right and the concerned authority can straightaway proceed to pass orders of eviction once occupation of the premises is found to be unauthorised. Hence, staying in the property after the expiry of the lease or license may not result in branding a person as an encroacher under the Wakf Act and whereas under the PP Act that by itself is a ground for concluding that the person is in unauthorised occupation. vi. In some of the cases, the lease was executed pursuant to the scheme decree and after getting the approval of the scheme court. Hence, the Estate Officer does not have the jurisdiction to issue the notice for the simple reason that the petitioners therein cannot be labelled as unauthorized occupants. The Estate Officer has already pre-determined that the petitioners therein are unauthorized occupants and hence, calling upon the petitioners to give their explanation will only be an empty formality. 5. The learned counsel appearing on behalf of the petitioners cited various judgements of the Apex Court for questioning the validity of Section 2(e)(iii) of the PP Act and to substantiate the grounds raised by them touching upon the jurisdiction of the Estate Officer who had proceeded further with the process of eviction under the PP Act. 6. 5. The learned counsel appearing on behalf of the petitioners cited various judgements of the Apex Court for questioning the validity of Section 2(e)(iii) of the PP Act and to substantiate the grounds raised by them touching upon the jurisdiction of the Estate Officer who had proceeded further with the process of eviction under the PP Act. 6. The summary of the submissions made on the side of the Wakf Board and the Mutawalli belonging to some of the Wakfs can be captured hereunder: i. There is no repugnancy or inconsistency between the State Law and the Central Law and both can operate parallelly. ii. The PP Act provides for a speedy mechanism for evicting the encroachers from the Wakf property and hence, the respondents by applying the doctrine of election can resort to the mechanism provided under the PP Act and the procedure given under the Wakf Act is only an alternative which is left to the choice of the concerned Wakf. iii. Some of the persons against whom the proceedings have been initiated under the PP Act, have approached this Court seeking for a writ of declaration to declare that Act 33 of 2010 is illegal, void and ultra vires, after the coming into force of Act 27 of 2013, under Article 14, 246(2) and 254 of the Constitution and writ petitions filed in W.P.Nos. 6767 of 2022, 6561 of 2022 and 4705 of 2013 in this regard are pending before the Hon’ble First Bench and in view of the same, the petitioners cannot be allowed to parallelly test the jurisdiction of the Estate Officer who had initiated proceedings for eviction and till the provision is struck down in the manner known to law, there is no bar for the Estate Officer to initiate action for eviction of the encroachers in a wakf property under the PP Act. iv. The State Act and the Central Act touched upon different entries in the Concurrent List (State Act under Entry 6, 7 and 42 and the Central Act under Entry 28) and hence, there is no question of repugnancy under Art 254(1) of the Constitution. v. The bar will apply only if inconsistencies/repugnancy is absolutely irreconcilable or in direct collision with each other and in the absence of the same, both the laws can operate independently. vi. v. The bar will apply only if inconsistencies/repugnancy is absolutely irreconcilable or in direct collision with each other and in the absence of the same, both the laws can operate independently. vi. The petitioners have attempted to collaterally challenge the provision in the guise of questioning the juridiction of the Estate Officer and if really they want to test the State Act, they have to challenge it independently by adding the State Government as a party and must also raise sufficient grounds as to why the State Law is repugnant to the Central Law. In the absence of the same, this court cannot indirectly declare on the vires of the State Law. vii. Section 2(e)(ii) of the PP Act also covers a Wakf Board which is incorporated under the Act under Section 13 and hence even in the absence of Act 33 of the 2010, the Estate Officer can proceed further to initiate proceedings under the PP Act. In view of the same, there is no necessity to go into the vires of the State Law brought in through Act 33 of 2010. 7. This Court has carefully considered the submissions made on either side and the material available on record. 8. The test to be applied in order to find out as to whether there is repugnancy under Art 254 of the Constitution between the Parliamentary Law and the State Law which are referrable to List III in the Seventh Schedule of the Constitution, is no longer res integra and it has been considered in detail by the Apex Court in Innoventive Industries Limited v. ICICI Bank &Ors. reported in (2017) 5 CTC 725 and it was held thus: “i) Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the 7th Schedule to the Constitution of India. ii) In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. ii) In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular statute or part thereof has to give way to the other. iii) The question is what is the subject matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as the entries in List III are only fields of legislation;also, the language of Article 254 speaks of repugnancy not merely of a statute as a whole but also “any provision” thereof. iv) Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them both so as to avoid repugnancy – care should be taken to see whether the two do not really operate in different fields qua different subject matters. v) Repugnancy must exist in fact and not depend upon a mere possibility. vi) Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other.This happens when two enactments produce different legal results when applied to the same facts. vii) Though there may be no direct conflict, a state law may be inoperative because the Parliamentary law is intended to be acomplete, exhaustive or exclusive code. vii) Though there may be no direct conflict, a state law may be inoperative because the Parliamentary law is intended to be acomplete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy. viii) A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject matter. This need not be in the form of a direct conflict, where one says “do” and the other says “don’t”. Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy. ix) Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State’s statute which is found to be repugnant is to be declared void. ix) Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State’s statute which is found to be repugnant is to be declared void. x) The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State.” 9. The law has been restated by the Apex Court in Forum for People''s Collective Efforts (FPCE) and Another v. State of West Bengal and Another reported in 2021 8 SCC 599 and useful reference can be made to paragraph 132 of that judgment. 10. This case reminds me of an oft-quoted idiom ‘Hamlet without the Prince of Denmark’. The learned counsel appearing on behalf of the petitioners have made all their submissions touching upon the enforceability and constitutionality of Act 33 of 2010, without challenging that provision by making the State Government a party to the proceedings. The State Government which will be the most important performer or the Central figure to defend the constitutionality of Act 33 of 2010, is not even in the scene. 11. One of the fundamental tenets of Constitutional interpretation is that there always exists a presumption in favor of the constitutionality of a Legislation. This principle was entrenched in our constitutional order way back in 1950 in the case of Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833, wherein it was held as under: “The argument seems plausible at first sight, but on a closer examination I do not think that I can accept it as sound. It must be conceded that the legislature has a wide discretion in determining the subject-matter of its laws. It is an accepted doctrine of the American courts and which seems to me to be well founded on principle, that the presumption is in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles.” 12. Equally well settled is the principle that constitutional questions are not adjudicated in a vacuum. Equally well settled is the principle that constitutional questions are not adjudicated in a vacuum. In K.B. Nagur v. Union of India , (2012) 4 SCC 483 , the Supreme Court has ventured to opine as under: “It is also a settled and deeply-rooted canon of constitutional jurisprudence, that in the process of constitutional adjudication, the courts ought not to pass decisions on questions of constitutionality unless such adjudication is unavoidable. In this sense, the courts have followed a policy of strict necessity in disposing of a constitutional issue. In dealing with the issues of constitutionality, the courts are slow to embark upon an unnecessary, wide or general enquiry and should confine their decision as far as may be reasonably practicable, within the narrow limits required on the facts of a case.” 13. The corollary is that in the absence of there being a challenge to the legislation it is not open to the Court to presume that the legislation is invalid. That would tantamount to turning the presumption on its head. In Molar Mal v. Kay Iron Works (P) Ltd., (2000) 4 SCC 285 , the Supreme Court has observed as under: “We may notice at this stage that the constitutional validity of the proviso is not in challenge before us, therefore, we will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such.” 14. To dislodge the presumption of constitutionality the provisions of a statute must be assailed in a properly constituted writ petition where the State or Central Government is a necessary party. To dislodge the presumption of constitutionality the provisions of a statute must be assailed in a properly constituted writ petition where the State or Central Government is a necessary party. A writ petition assailing a provision without making the State a party is not maintainable in the light of the judgment of the Supreme Court in S. Shanmugavel Nadar v. State of T.N., (2002) 8 SCC 361 , wherein it was held as under: “In the present case, the order dated 10-9-1986 passed by this Court can be said to be a declaration of law limited only to two points — (i) that in a petition putting in issue the constitutional validity of any State legislation the State is a necessary party and in its absence the issue cannot be gone into, and (ii) that a belated prayer for impleading a necessary party may be declined by this Court exercising its jurisdiction under Article 136 of the Constitution if the granting of the prayer is considered by the Court neither necessary nor proper to allow at the given distance of time.” 15. The mandatory requirement of assailing the vires of a provision in a properly constituted writ petition was emphasized by a Division Bench of this Court in N. Varadarajan v State of Tamil Nadu, (2001) 4 CTC 339, wherein it was held as under: “In the first place, we must point out that a section of the State Act has to be challenged in a proper manner and the arguments regarding its unconstitutionality cannot be addressed as an “incidental” question. The constitutionality of a section of an enactment has to be the main challenge and it is on that basis, further arguments could be addressed. Here, it is exactly in the reverse order.” 16. The Supreme Court struck a similar note in State of Meghalaya v. High Court of Meghalaya, (2016) 11 SCC 245 , wherein it was observed as under: “In the instant case, as is evident, the High Court has compared the provisions pertaining to appointment of Chairperson and Members under the Act with the provisions of other Acts enacted by different legislatures. The legislature has passed the legislation in its wisdom. There was no challenge to the constitutional validity of the provisions of the Act. The suo motu petition was registered for giving effect to the Act by bringing the institutions into existence. The legislature has passed the legislation in its wisdom. There was no challenge to the constitutional validity of the provisions of the Act. The suo motu petition was registered for giving effect to the Act by bringing the institutions into existence. This may be thought of in very rare circumstances depending on the nature of legislation and the collective benefit but in that arena also the Court cannot raise the issue relating to any particular provision and seek explanation in exercise of jurisdiction under Article 226 of the Constitution. In the case at hand, as is manifest, the Division Bench of the High Court has, with an erroneous understanding of fundamental principle of law, scanned the anatomy of the provision and passed an order in relation to it as if it is obnoxious or falls foul of any constitutional provision. The same is clearly impermissible. A person aggrieved or with expanded concept of locus standi someone could have assailed the provisions. But in that event there are certain requirements and need for certain compliances.” 17. The principle that the vires of a statute cannot be attacked collaterally is an established principle all over the world. Thus in Phillips v. National Director of Public Prosecutions, [2005] ZACC 15; 2006 (1) SA 505 (CC), the Supreme Court of South Africa has observed thus: “It is not ordinarily permissible to attack statutes collaterally. The constitutional challenge should be explicit, with due notice to all affected. This requirement ensures that the correct order is made; that all interested parties have an opportunity to make representations; that the relevant evidence can, if necessary, be led and that the requirements of the separation of powers are respected.” 18. Lastly, under the existing roster petitions concerning the vires of any legislation must be heard by the Division Bench presided by the Hon’ble Chief Justice. It is well settled that it is not open to a Judge to usurp the jurisdiction assigned to another roster for that would result in the order becoming a nullity. Lastly, under the existing roster petitions concerning the vires of any legislation must be heard by the Division Bench presided by the Hon’ble Chief Justice. It is well settled that it is not open to a Judge to usurp the jurisdiction assigned to another roster for that would result in the order becoming a nullity. The law on this aspect is set out in State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 , wherein, it was held as under: “In view of the above, the legal regime, in this respect emerges to the effect that the Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as to which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and make the Judge coram non judice.” 19. In light of the above discussion, this court holds that till Act 33 of 2010 which brought in section 2(e)(iii) of the PP Act is in force, the power and jurisdiction of the Estate Officer cannot be questioned. As already held, in law there is a presumption in favour of the constitutional validity of the legislation and the same applies to section 2(e)(iii) of the PP Act, till it is repealed or struck down by a competent Court in accordance with law. This Court does not want to touch upon the grounds raised on the merits of the case and it will be left open to the petitioners to raise it before the Estate Officer under the Act or before the Appellate forum if the Estate Officer has already passed the order under the PP Act. If in case, the petitioners raise the ground of jurisdiction by placing reliance upon any scheme decree and the approval given by the scheme court before the lease was granted, the same shall also be dealt with by the Estate Officer or the Appellate Authrity as the case may be. In short, whatever grounds are raised before the Estate Officer or the appeallate forum, as the case may be, it should be dealt with and a finding must be rendered assigning reasons. 20. The upshot is that all the Writ Petitions stand dismissed. No costs. In short, whatever grounds are raised before the Estate Officer or the appeallate forum, as the case may be, it should be dealt with and a finding must be rendered assigning reasons. 20. The upshot is that all the Writ Petitions stand dismissed. No costs. Consequently, all the connected miscellaneous petitions are closed. 21. Since the petitioners have approached this Court questioning notice issued by the Estate Officer or the order passed by the Estate Officer and this Court has refused to entertain these writ petitions, the Registry is directed to return back the original impugned orders to the learned counsel appearing on behalf of the respective petitioners. For those petitioners who have approached this Court questioning the notice issued by the Estate Officer, the reply shall be given to the show-cause notice within three weeks from the date of receipt of a copy of this order. If in case, the writ petitions have been filed questioning the order passed by the Estate Officer, the appeals shall be filed before the appropriate forum within three weeks from the date of receipt of a copy of this order. It is made clear that any observations made in this order will not have any bearing either on the Estate Officer or on the appellate forum and they are directed to deal with the respective cases on its own merits and in accordance with law. The interim protection granted by this Court during the pendency of these writ petitions is extended by three weeks.