P. v. Nidhish & Ors. v. Kerala State Wakf Board & Anr.
S. RAVINDRA BHAT, J.
1. The present appeal 1 was heard finally, with the consent of
counsel for parties. The appellants are aggrieved by the judgment of the
Kerala High Court2 rejecting their petition under Section 482, Criminal
Procedure Code, 1973 (hereafter “Cr. PC”). They had, through t hose
proceedings, sought a direction to quash a criminal complaint instituted
against them.
I
2. The appellants urge that one P.M. Mammu Haji leased two
shop rooms (numbered as municipal numbers VII/214 and VII /215-
hereafter “the premises”), long ago (in 1916), before the c oming into
force of the Wakf Act. “Norman Printing Bureau” (herea fter “the
Bureau”) was a concern of Achuthan Nair; it was functioning in the
premises. A partnership firm was later created, with one P.V. Sami as a
partner. The firm continued all these years and continues no w. The
Bureau publishes ‘Norman Almanac’ containing astronomical data used
in astrology.
3. The respondents allege that P.M. Mammu Haji created a wakf
in 1951. After his death, a suit was filed by his legal heirs (O.S. No. 130/
1965 before the Sub Court, Calicut) to remove the trustee. There was
an existing dispute even between the legal heirs of Mammu Haji whether
there was a Wakf or a trust. In that suit, the court found t hat Mammu
Haji created a private Trust; it removed the existing trustee. In between,
1 Crl. A. No. 309/2023.
2 Dated 03.03.2016 in Crl. MC No. 5072/2015.
551
the rent for the premises was increased, and a Rent Enhancement Deed
was executed between the parties, on 15.09.1973. The appellants noticed
uncertainty on account of lack of clarity about ownership of the premises
and filed an interpleader suit on 30.03.1998 before the Munsiff court ,
Kozhikode. That suit was transferred to the file of the Di strict Judge
(OS 147/2001)where the court decreed the suit and directed the appellants
to pay rent to the third defendant.
4. The CEO of the Board initiated several proceedings agai nst
the appellants for eviction. The first attempt, in 2004, resulted in an order3
of the Wakf Board to the effect that the appellants were not in
unauthorized occupation and could be evicted after issuing notice under
provisions of the Transfer of Property Act. Another proceeding (OS 13/
2006) was filed before the Wakf Tribunal against the appell ant firm’s
manager, for its eviction. This was decreed; but in revision proceedings4,
the Kerala High Court ruled that the Wakf Tribunal lacked jurisdiction
and the appellants could be evicted only through a civil proceeding before
a competent civil court.
5. A civil suit (O.S. No. 22/2012) claimed relief against an order
of injunction restraining reconstruction and structural alterations by the
appellant; the injunction was issued by the CEO of the trust/wakf. The
appellants preferredthe suit and contended that the two, i.e. ,wakf and
trust could not co-exist because awakf creates a dedication in favour of
God while a trust vests the property in the hands of the trustees. The
appellants preferred an application alleging that t he suit was not
maintainable, as a preliminary issue. The tribunal found in favour of the
respondent/plaintiff, upon which the appellant approached the Ker ala
High Court5. A Division Bench of thecourt held 6 the suit maintainable
before the tribunal. However, on the question of the plaintiff’s competence
to seek injunction (before the tribunal)regarding sp ecific tenanted
properties, thecourt observed, “on behalf of the Wakf, against the
defendant is a matter which will have to be independently con sidered
and decided”as it was a “vexed” question of fact and law which could
not be decided in a proceeding under Order 39, Rules 1 and 2 of t he
Code of Civil Procedure.
3 dated 16.05.2005
4 CRP No. 106/2008, decided on 14.10.2008.
5 in CRP (Wakf) No. 375/2012.
6 By order dated 05.08.2013, also reported as Norman Printing Bureau v PS Mamman
Haji Wakf Trust 2013 (4) KLT 606.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]
6. During the pendency of the suit, the Wakf Act, 1995, was
amended, with effect from 01.11.2013. Two new provisions were added.
One was the definition of “encroacher” [Section 3 (ee)]:
“‘encroacher’ means any person or institution, publ ic or
private, occupying wakf property, in whole or part, without
the authority of law and includes a person whose te nancy,
lease or licence has expired or has been terminated by
mutawalli or the Board.”
The “Board” was defined as follows: [Section 3 (c)]:
“c) “Board” means a Board of Waqf established under su b-
section (1), or as the case may be, under sub-sectio n (2) of
section 13 and shall include a common Waqf Board
established under section 106"
Some of the new provisions, inter alia, inserted by the
amendment- including Section 52A and Section 54, read as follows:
“52A. (1) Whoever alienates or purchases or takes possession
of, in any manner whatsoever, either permanently or
temporarily, any movable or immovable property being a waqf
property, without prior sanction of the Board, shal l be
punishable with rigorous imprisonment for a term which may
extend to two years:
Provided that the waqf property so alienated shall without
prejudice to the provisions of any law for the time being in
force, be vested in the Board without any compensat ion
therefor.
(2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 any offence punishable under this
section shall be cognizable and non-bailable.
(3) No court shall take cognizance of any offence und er this
section except on a complaint made by the Board or any
officer duly authorised by the State Government in this behal f.
(4) No court inferior to that of a Metropolitan Magistra te or
a Judicial Magistrate of the first class shall try an y offence
punishable under this section.
************** *************
553
54. Removal of encroachment from waqf property.—(1)
Whenever the Chief Executive Officer considers whet her on
receiving any complaint or on his own motion that there has
been an encroachment on any land, building, space or other
property which is 1 [waqf] property and, which has been
registered as such under this Act, he shall cause to be serve d
upon the encroacher a notice specifying the particu lars of
the encroachment and calling upon him to show cause before
a date to be specified in such notice, as to why an order
requiring him to remove the encroachment before the date so
specified should not be made and shall also send a copy of
such notice to the concerned mutawalli.
(2) The notice referred to in sub-section (1) shall be served
in such manner as may be prescribed.
(3) If, after considering the objections, received during the
period specified in the notice, and after conducting an inquiry
in such manner as may be prescribed, the Chief Exec utive
Officer is satisfied that the property in question is waqf
property and that there has been an encroachment on any
suchwaqf property, he may, make an application to t he
Tribunal for grant of order of eviction for removin g] such
encroachment and deliver possession of the land, bu ilding,
space or other property encroached upon to the mutawalli of
the waqf.
(4) The Tribunal, upon receipt of such application from the
Chief Executive Officer, for reasons to be recorded therein,
make an order of eviction directing that the waqf p roperty
shall be vacated by all persons who may be in occup ation
thereof or any part thereof, and cause a copy of the order to
be affixed on the outer door or some other conspicuous part
of the waqf property:
Provided that the Tribunal may before making an ord er of
eviction, give an opportunity of being heard to the person
against whom the application for eviction has been made by
the Chief Executive Officer.
(5) If any person refuses or fails to comply with the orde r of
eviction within forty-five days from the date of af fixture of
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]
the order under sub-section (2), the Chief Executive Officer
or any other person duly authorised by him in this behalf
may evict that person from, and take possession of, the w aqf
property.”
7. The amendment, to the Wakf Act, in 2013, came into effect by
virtue of Section 1 (2) [ “It shall come into force on such date as the
Central Government may, by notification in the Offi cial Gazette,
appoint”] on 01.11.2013. As mentioned earlier, as on that date, the civil
proceedings initiated for eviction of the appellants were pending. While
so, a criminal complaint 7 was filed before the Court of the Judicial
Magistrate, First Class (“JMFC”) Kozhikode, alleging that the appellants
were encroachers and seeking their prosecution under Section 52A .
The appellants alleged that they continued to pay the rent, in accordance
with the decree of the District Judge, in their interpleade r suit, i.e., CS
147/2001. The appellants preferred a petition under Section 482 of the
Cr. PC before the Kerala High Court alleging that they co uld not be
treated as “encroachers” and were lawful occupants, whose eviction
was sought, in civil proceedings, and seeking quashi ng of those
proceedings. By the impugned order, the High Court rejected the petition.
8. In the impugned order, the High Court, after extracting the
definition of “encroacher” and noticing Section 52A, held:
“4. When the tenancy has been terminated by the Boar d in
this particular case, the petitioners have become ‘encroacher ’
within the meaning of Section 3(ee) of the Act. In such c ase,
the offence under Section 52A(1) can be attracted, if its
ingredients are proved. As per Section 52A (3) of the Ac t, no
court shall take cognizance of any offence under this secti on
except on a complaint made by the Board or any officer duly
authorised by the State Government in this behalf. Therefore,
this is not a matter wherein an investigation by the poli ce is
called for. Cognizance can be taken only on a complain t by
the Board or any officer duly authorised by the Sta te
Government in that behalf. Here, a complaint has been fi led
by the Kerala State Wakf Board represented by its authorised
officer. Presently, there is absolutely nothing to have a
premature termination of the prosecution proceedings against
the petitioners.”
7 ST No. 369/2015 dated 08.05.2013
555
II
9. Mr. R. Basant, learned senior counsel argued tha t it is a
fundamentalprinciple of criminal jurisprudence that penal provi sions
cannot be applied with retrospective effect. The newly inserted provision,
i.e., Section 52A makes “taking possession of waqf properties” a
punishable offence. However, in this case, possession was taken in 1916,
i.e., concededly much before the enactment of the Wakf Act an d the
amendment. Accordingly, the newly inserted provision would not apply
to the facts of this case.
10. It was argued that Parliament never intended that those who
held properties under prior leases and arrangements, upon their expiry,
were to be treated as “encroachers”. Learned counsel contended that
aside from the fact that the amendment cannot be construed as operating
retrospectively, the respondents cannot validly contend that those who
were in possession and occupation of the premises, as t enants for a
century became encroachers, upon enactment of the 2013 Act. Counsel
pointed out that the provision which enables the Wakf Board t o deal
with encroachers, is Section 54; it provides for eviction. No proceedings
were taken out against the appellants, who were straightaway sought to
be dealt with as encroachers and prosecuted. Learned counsel relied
upon Article 20 (1) of the Constitution of India and submitted that the
appellants’ conduct cannot be treated as an offence, even if S ection
52A were to be applicable. To uphold the respondent’s move would
directly violate the appellants’ rights under Article 20 (1).
11. Mr. Harris Beeran, learned counsel for the respondent, relied
upon the statement of objects and reasons of the amendment to t he
Wakf Act of 2013. He placed emphasis on the rationale behind inclusion
of Section 52A, that is to declare illegal holding and occupation of lands
as criminal offence. As far as the appellants’ argument regarding the
retrospective application of the provision is concerned, counsel relied on
Securities & Exchange Board of India v. Ajay Agarwal 8(hereafter
“Ajay Agarwal”) and Mohan Lal v. State of Rajasthan 9 to urge that
since the appellantsare still in possession of the property, the amendment
applies to them.
8 (2010) 3 SCR 70.
9 (2015) 6 SCC 222.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]
12. It was urged by the respondents that the premises were leased
to the appellants without obtaining prior sanction of the Board on
15.09.1973 for a period of 11 months by the then Managing Trustee
Mr. K. V. Kunhammed Koya who was later removed by the Board as
per the order in the proceedings Number 2/1976 dated 09.09.1978 due
to misfeasance and malfeasance. The accused have been co nducting a
business concern,”Norman Printing Bureau”, in the waqf buildi ng for
the last more than 40 years without any right tocontinue in it. As per
Section 56 of the Waqf Act, 1995, the Mutawalli/ Managing Trustee of
waqf has no authority to leaseout the building without obtainin g prior
sanction of the Board.
13. Learned counsel submitted that in view of Section 472 Cr.PC,
the continued possession of the appellants constituted a continuing
offence. Regardless of previous occupation, once the penal pr ovision
became part of law, under the 2013 amendment, the appellants’ conduct
stood exposed to the risk of criminal prosecution. In such circumstances,
the reliance on Article 20 (1) is misplaced.
III
14. The Wakf Act, 1954 was a precursor to the enactment of the
Wakf Act, 1995. This court explained the scheme of the 1995 Act in
Ramesh Gobindram (Dead) through L.Rs. v Sugra Humayun Mirza
Wakf 10as
“Wakfs and matters relating thereto were for a long time
governed by the Wakf Act, 1954. The need for a fres h
legislation on the subject was, however, felt becau se of the
deficiencies noticed in the working of the said ear lier
enactment especially those governing the Wakf Boards , their
power of superintendence and control over the manage ment
of individual wakfs. Repeated amendments to the 195 4 Act,
having failed to provide effective answers to the q uestions
that kept arising for consideration, the Parliament had to
bring a comprehensive legislation in the form of Wa kf Act
1995 for better administration of wakfs and matters connected
therewith or incidental thereto.
Chapter I of the 1995 Act deals with Preliminaries like
definitions, title, extent and commencement and appl ication
10 2010 (10) SCR 945.
557
of this Act. Chapter II provides for preliminary su rvey of
wakfs, publication of list of wakfs, disputes regarding wakfs
and also the powers of the Tribunal to determine such disputes.
Chapter III deals with Central Wakf Council while C hapter
IV deals with establishment of Boards and their fun ctions.
Chapter V, VI and VII regulate the registration of Wakfs a nd
maintenance of accounts thereof and the finances of the Wakf
Board. Chapter VIII, with which the controversy at ha nd is
more intimately connected deals with judicial proce edings
and, inter alia, provides for constitution of tribu nals and
adjudication of disputes by them as well as exclusi on of
jurisdiction of Civil Courts. Chapter IX is a misce llaneous
chapter that confers power on the Central Governmen t to
regulate the secular activities of wakfs and empowers the St ate
Government to issue directions apart from other pro visions
like establishment and reorganization and establish ment of
boards.”
15. The appellants contend that their continued occupation and
repeated yet unsuccessful attempts by the respondents to ous t them
from possessiondo not render their continuance in the premises any less
lawful and that the amendment of 2013 cannot be construed as operating
retrospectively; else, it would transgress their right under Article 20 (1)
of the Constitution. The respondents contend that this is not an instance
of retrospective law but that the conduct (of continuing to occup y the
premises after being asked to vacate) amounts to a continuing offence.
They also rely on the statement of objects and reasons to the 2013
amendment and the ratio in Ajay Agarwal (supra) to urge that the
amendment is not violative of Article 20 (1). The Statement of Objects
and Reasons to the amendment (of 2013) is extracted below:
“The Wakf Act, 1995, [which repealed and replaced the Wakf
(Amendment) Act, 1984] came into force on the 1st d ay of
January, 1996. The Act provides for the better administration
of auqaf and for matters connected therewith or inc idental
thereto. However, over the years of the working of the Act,
there has been a widespread feeling that the Act has not prove d
effective enough in improving the administration of auqaf.
2. The Prime Minister’s High Level Committee for Prep aration
of Report on Social, Economic and Educational Status of the
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]
Muslim Community of India (also known as Sachar
Committee) in its Report submitted to the Prime Minis ter on
the 17th November, 2006 considered the aforementioned issue
and suggested certain amendments to the Act relatin g to
women’s representation, review of the composition o f the
Central Wakf Council and the State Wakf Boards, a stringent
and more effective approach to countering encroachments of
Waqf properties and other matters. The Committee str essed
the need for setting up of a National Waqf Developm ent
Corporation and State Waqf Development Corporations so
as to facilitate proper utilization of valuable waqf pro perties
for the objectives intended. The Committee recommended tha t
the Act should be amended so that the State Waqf Boa rds
become effective and are empowered to properly deal with
the removal of encroachments of waqf properties. It also
recommended to amend the Act so that the Waqf Tribunal will
be manned by a full time Presiding Officer appointe d
exclusively for waqf properties. The Joint Parliame ntary
Committee on Waqf in its Third Report presented to the Raj ya
Sabha on the 4th March, 2008 made recommendations for a
wide range of amendments relating to time bound survey of
waqf properties, prevention and removal of encroachm ents,
making the Central Waqf Council a more effective an d
meaningful body, provisions for development of waqf
properties, etc. In its Ninth Report presented to t he Rajya
Sabha on the 23rd October, 2008, the Joint Parliame ntary
Committee reconsidered certain issues. The recommendations
of the Joint Parliamentary Committee on Waqf were
considered by the Central Waqf Council. The various iss ues
and the need for amendments to the Act have also be en
considered in consultation with other stakeholders such as
the AllIndia Muslim Personal Law Board, representative s of
the State Governments and the Chairmen and the Chie f
Executive Officers of State Waqf Boards.”
16. In Ajay Agarwal (supra), the aggrieved party was not held
guilty of committing any offence. He was also not subjected t o any
penalty. He was restrained by an order for a period of f ive years from
associating with any corporate body in accessing the securities market;he
had also been prohibited from buying, selling or dealing in securities for
559
five years. The court relied on the definition of “offence” unde r the
General Clauses Act, 1897 (i.e., any act or an omission made punishable
by any law for the time being in force). In view of this de finition, a
limited suspension from dealing in securities for five years did not amount
to an “offence”. The court also relied on the definition of offence, under
Section 2 (n) Cr. PC:
“2. (n) ‘offence’ means any act or omission made punishable
by any law for the time being in force and includes any act in
respect of which a complaint may be made under Section 20
of the Cattle-Trespass Act, 1871 (1 of 1871);”
17. In the present case, there is no controversy that Section 52A
is a penal provision; a person proceeded against faces the p rospect, in
the event the charges are proved, of a prison sentence of up to two
years; the offence is cognisable and non-bailable, notwithstanding anything
to the contrary in Cr. PC [Section 52A (2)].
18. The injunction against punishing anyone for conduct which
was not an offence when it was committed, by an enactment, w hich
creates one, subsequently, with retrospective effect¸ is enacted in our
Constitution as a Fundamental Right [Article 20 (1) 11]. A Constitution
Bench of this court, in Rao Shiv Bahadur Singh v. State of Vindhya
Pradesh12 had explained the purport of Article 20 (1):
“This article in its broad import has been enacted to prohibit
convictions and sentences under ex post facto laws. The
principle underlying such prohibition has been elab orately
discussed and pointed out in the very learned judgm ent of
Justice Willes in the well-known case of Phillips v . Eyre
[(1870) 6 QBD 1, 23, 25] and also by the Supreme Court of
U.S.A. in Calder v. Bull [3 Dallas 386 : 1 L Ed 648, 649]. In
the English case it is explained that ex post facto laws are
laws which voided and punished what had been lawful when
done. There can be no doubt as to the paramount importance
of the principle that such ex post facto laws, whic h
11Article 20 (1) reads as follows:
(1) No person shall be convicted of any offence except for violation of a law in force at
the time of the commission of the Act charged as an offence, nor be subjected to a penalty
greater than that which might have been inflicted under the law in force at the time of the
commission of the offence.’’
121953 SCR 1188 @ 1198.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]
retrospectively create offences and punish them are bad as
being highly inequitable and unjust.”
19. Speaking about the same provision, this court held i n T.
Barai v. Henry Ah Hoe 13 that:
“22. It is only retroactive criminal legislation that is prohibited
under Article 20(1). The prohibition contained in Article 20(1)
is that no person shall be convicted of any offence except for
violation of a law in force at the time of the commission o f the
act charged as an offence prohibits nor shall he be subjected
to a penalty greater than that which might have been inflict ed
under the law in force at the time of the commission of the
offence. It is quite clear that insofar as the Central Amendm ent
Act creates new offences or enhances punishment for a
particular type of offence no person can be convicted by such
ex post facto law nor can the enhanced punishment prescribed
by the amendment be applicable. But insofar as the Central
Amendment Act reduces the punishment for an offence
punishable under Section 16(1)(a) of the Act, there is no
reason why the accused should not have the benefit o f such
reduced punishment. The rule of beneficial construc tion
requires that even ex post facto law of such a type should be
applied to mitigate the rigour of the law. The principle is based
both on sound reason and common sense. This finds support
in the following passage from Craies on Statute Law, 7th E dn.,
at pp. 388-89:
‘A retrospective statute is different from an ex po st facto
statute. “Every ex post facto law…” said Chase, J., in the
American case of Calder v. Bull [Calder v. Bull, 1 L Ed 648 :
3 US 386 (1798)]
“must necessarily be retrospective, but every retrospe ctive law
is not an ex post facto law. Every law that takes a way or
impairs rights vested agreeably to existing laws is retrospective,
and is generally unjust and may be oppressive; it is a good
general rule that a law should have no retrospect, but in cases
in which the laws may justly and for the benefit of the
community and also of individuals relate to a time antecedent
13[1983] 1 SCR 905.
561
to their commencement: as statutes of oblivion or of par don.
They are certainly retrospective, and literally both concernin g
and after the facts committed. But I do not consider any la w
ex post facto within the prohibition that mollifies the rigour
of the criminal law, but only those that create or a ggravate
the crime, or increase the punishment or change the rules of
evidence for the purpose of conviction…. There is a great
and apparent difference between making an unlawful act
lawful and the making an innocent action criminal a nd
punishing it as a crime.” (L Ed p. 650)’”
20. In Kanaiyalal Chandulal Monim v. Indumati T. Potdar and
Another,14 this court had to decide whether a landlord had den ied
amenities which were enjoyed by his tenant, calling for his prosecution
under Section 24(1)(4) of the Bombay Rents Hotel and Lodging House
Rates Control Act 57 of 1947. The provision read as follows:
“24. (1) No landlord either himself or through any person
acting or purporting to act on his behalf shall without just or
sufficient cause cut off or withhold any essential supply or
service enjoyed by the tenant in respect of the premis es let to
him.”
Section 25 (4) enacted a punishment of up to three m onths
imprisonment, or both. The landlord resisted the prosecution on the ground
that the amenity, i.e., the water supply had been disconne cted to the
premises due to the default of the predecessor in title before he became
the owner. This was negatived, and he was concurrently convicted. By
an amendment in 1953, an explanation was added, which said that the
withholding supplies could be through acts or omissions. This c ourt
interpreted Section 24 as imposing an obligation (of providing the amenity)
in presenti, after coming into force of the enactment:
“Is it enough that this essential supply should hav e been
“enjoyed” by the tenant at any past time, however remote, or
that it should have been “enjoyed” at any time afte r the
coming into effect of the Act? We are assuming for the purposes
of this decision that the first respondent was the tenant at all
material times. In our opinion, the Section makes it ess ential
that the particular essential supply should have been available
14[1958] 1 SCR 1394.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]
for the use of the tenant at some time when the Act w as in
force. If, on the other hand, the Section were construed in the
sense that the supply should have been “enjoyed” at some
time in the remote past, that is, before the Act was en forced,
the act of the landlord, when it was committed, may not ha ve
been penal; but the same act would become penal on the
coming into effect of the Act. In that sense, it would a mount
to ex-post facto legislation, and we cannot accede to the
argument that such was the intention of the legislature — an
intention which would come within the prohibition of Arti cle
20(1) of the Constitution.”
21. In the present case, it is undeniable that the appel lant came
into possession even before the wakf was created; before even the
Wakf Act, 1954 was enacted (although the precise date is u nclear and
could be a matter of dispute). It is, however, sufficient to notice that in
an interpleader suit, the appellants were permitted to p ay rents to the
third defendant in the suit. They were holding the premises when the
amendment came into force; indeed, a proceeding purporting to evict
them was unsuccessfully initiated before the amendment. Another one
was commenced and was pending after it came into force. In t hese
circumstances, could it be said- having regard to the previous discussion-
that the dispute over the termination of their tenancy, resul ted in their
becoming “encroachers” after the amendment became effective?
22. In the considered view of this court, the expiry of leas es, or
other arrangements, by efflux of time or their valid terminations, in the
past, cannot be construed (as broadly as suggested by the respondents)
to mean that such lessees become “encroachers”. Nor wou ld past
tenants whose possession is disputed, and eviction proceedings pending
against them before a court, fit that description under Se ction 3 (ee).
The consequences of such an interpretation would be too startling; even
before an adjudication of the validity of termination (of le ases, for
instance), tenants holding over would be exposed to prosecution. There
is no allusion to “continuing offence” or any expression suggesting that
such a term (mentioned in Section 472 Cr.PC) would be attrac ted to
actions which commenced in the past, i.e., before the amendme nt of
2013 came into force. To hold otherwise, this court would be resorting to
an interpretation that directly deprives the appellants of their rights under
Article 20 (1)- a consequence that cannot be countenanced. Th e plain
563
text of that provision forbids such an interpretation, and the authorities
on that aspect clearly indicate that giving effect to a penal statute so as
to cover past acts is a proscribed action in law. Therefore, the expression
“Whoever alienates or purchases or takes possession of ”, which is
the opening phrase of Section 52A, cannot be read or construed to include
possession taken in the past, which resulted in continued poss ession,
when the provision was enacted. That is to say that Section 52A cannot
cover cases where leases of wakf properties had expired in the past and
where the tenant or lessee was, at the time the amendmentof 2013 came
into force, in physical possession and facing civil proceedings for eviction.
23. It is a matter of record that by an order dated 27.10.2020, the
Kerala High Court quashed the order of the CEO of t he
respondent15allowing a revision petition and setting aside the eviction of
the tenant. The High Court set aside the finding that the tenant was an
encroacher. The entire matter was remitted for fresh considera tion, by
the Wakf Tribunal, with the following directions:
“If the entity created by Mammu Haji is found to be a Wakf,
the person in Management shall have the powers to termi nate
the tenancy and shall be entitled to take proceeding s under
the Wakf Act for eviction of a tenant, who after su ch
termination of tenancy, is deemed to be an encroach er. We
make it clear that we have not observed on the merits of the
contentions of eitherparties. The issues have to be cons idered
in O.S. No. 22/2012.”
24. In view of the foregoing discussion, the impugned judgment
cannot be sustained; it is hereby set aside. The appeal is allowed but
without order on costs.
Divya Pandey Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)
15 In CRP(Wakf) No. 150/2016.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD &
ANR. [S. RA VINDRA BHAT, J.]