S. 52A Of Wakf Act Cannot Be Apply To Tenants Who Took Possession Before Enactment Of This Provision : Supreme Court

The Supreme Court has held that criminal proceedings under Section 52A of the Wakf Act 1995 cannot be maintained against persons who were in possession of the Wakf property when the said provision was introduced in 2013 and continue to remain in possession after the expiry of lease, contesting civil proceedings for eviction.

"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 amendment of 2013 came into force, in physical possession and facing civil proceedings for eviction", a bench comprising Justices S Ravindra Bhat and Dipankar Datta observed. To allow the retrospective application of a criminal proceeding will amount to violation of Article 20(1) of the Constitution, the bench stated.

Section 52A of the Act prescribes that 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 Wakf Board, shall be punishable with rigorous imprisonment for a term which may extend to two years.

In the instant case, the appellants are the successors of a person who took the property on lease way back in 1916, before the coming into force of the Wakf Act. Later, there was a claim that the owner of the property created a wakf in 1951. There was a dispute pending as to whether it is a wakf or a private trust. The appellants filed an interpleader suit, in view of the dispute, and court directed them to pay the rent to one of the defendants.

There were parallel proceedings by the CEO of the Wakf Board for the eviction of the appellants. During the suit’s pendency, the Wakf Act, was amended. A criminal complaint was filed before the Judicial Magistrate, First Class alleging that the Appellants were encroachers and sought to prosecute them under Section 52A, i.e., one of the newly inserted sections. Though they approached the High Court challenging the proceedings, they were unsuccessful and the matter reached the Supreme Court.

Arguments and Court’s Verdict

Senior Advocate R Basant, appearing for the appellants argued that it is a fundamental principle of criminal jurisprudence that penal provisions 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 and the amendment. Accordingly, the newly inserted provision would not apply to the facts of this case.

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”.

Advocate Harris Beeran, for the respondent, relied upon the statement of objects and reasons of the amendment to the 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 and Mohan Lal v. State of Rajasthan to urge that since the appellants are still in possession of the property, the amendment applies to them.

Appreciating the factual matrix and the submissions of parties, the Apex Court opined that there is no controversy that Section 52A is a penal provision; a person proceeded against faces the prospect, in the event the charges are proven, of a prison sentence of up to two years; the offence is cognisable and non-bailable, notwithstanding anything to the contrary in CrPC.

The Court noted that the Appellant came into possession even before the wakf was created; before even the Wakf Act, 1954 was enacted and that a proceeding purporting to evict them was unsuccessfully was initiated before the Amendment came into existence.

“It is, however, sufficient to notice that in an interpleader suit, the appellants were permitted to pay 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”.

On the newly inserted section, the Court concluded that the Section 52A won’t cover cases where leases of wakf properties had expired in the past and when the tenant/lessee was, at the time the amendment of 2013 came into force, in physical possession; facing civil proceedings for eviction. “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. The plain 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 possession, 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 amendment of 2013 came into force, in physical possession and facing civil proceedings for eviction.”

The bench clarified that the expiry of leases, or other arrangements, by efflux of time or their valid terminations, in the past, does not mean that such lessees become “encroachers”.

Explaining this, the bench said :

“In the considered view of this court, the expiry of leases, 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 would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description under Section 3 (ee). The consequences of such an interpretation would be too startling; even before an adjudication of the validity of termination (of leases, 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 attracted to actions which commenced in the past, i.e., before the amendment of 2013 came into force.”

Case Title: P.V. Nidhish and Ors. v. Kerala State Waqf Board and Anr | CRIMINAL APPEAL NO(S). 309 OF 2023

Citation : 2023 LiveLaw (SC) 383

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