CAUSE TITLE:
P. V. Nidhish & Ors.
Versus Kerala State Wakf Board & Anr.
DATE OF ORDER:
28-04-2023
JUDGE(S):
S.RavindraBhat,Dipankar Datta
PARTIES:
Petitioner:P. V. Nidhish & Ors
Respondent:Kerala State Wakf Board & Anr.
SUBJECT
The Supreme Court ruled that criminal proceedings under Section 52A of the Wakf Act 1995 cannot be brought against people who owned property when the provision had been introduced in 2013 and continue to be in possession after the lease expires while contesting civil eviction proceedings.
IMPORTANT PROVISION
Section 52A of the Act states that anyone who alienates, purchases, or takes possession of any movable or immovable property that is a waqf property in any way, either permanently or temporarily, without the prior sanction of the Wakf Board is punishable by rigorous imprisonment for a term up to two years.
FACTS
- In this case, the appellants are the descendants of a person who leased the property in 1916, before the Wakf Act went into effect. Later, it was claimed that the property's owner established a wakf in 1951. There was some debate about whether it was a wakf or a private trust. In light of the dispute, the appellants filed an interpleader suit, and the court ordered them to pay the rent to one of the defendants.
- The CEO of the Wakf Board initiated separate legal actions for the eviction of the appellants. The Wakf Act was changed while the lawsuit was pending. The Appellants were accused of encroaching upon private property, and a criminal complaint was brought before the Judicial Magistrate, First Class, seeking to prosecute them under Section 52A, one of the recently added sections. They attempted to stop the proceedings by going to the High Court, but they were unsuccessful, and the case ended up at the Supreme Court.
ARGUMENTS ADVANCED BY THE APPELLANT
- The appellants' senior attorney, R. Basant, contended that it is a fundamental tenet of criminal law that penal clauses cannot be applied retroactively. A crime of "taking possession of waqf properties" is created by the recently added Section 52A. However, in this instance, possession was taken in 1916, which is to say, undoubtedly much earlier than the Wakf Act's enactment and the amendment. The newly added clause would therefore not be applicable under the circumstances of this case.
- It was maintained that Parliament never intended for those who held properties under previous leases and agreements to be classed as "encroachers" if those agreements expired.
ARGUMENTS ADVANCED BY THE RESPONDENT
- For the respondent, attorney Harris Beeran cited the Wakf Act of 2013 amendment's statement of purposes and justifications. He emphasized justification for Section 52 A's insertion, which is to make the unauthorized session and occupation of land a crime. Regarding the appealpellant'sim that the provision applies retroactively, the attorney cited Securities & Exchange Board of India v. Ajay and Mohan Lal v. State of Rajasthan to support the claim that because the appellants are still in possession of the property, the amendment applies to them.
ANALYSIS OF COURT
- The Apex Court stated that it was clear that Section 52A is a penal provision and that anyone who is prosecuted could receive a prison sentence of up to two years if the charges are found to be true, despite anything to the contrary in the CrPC. The Apex Court also noted that the offense was cognizable and non-bailable.
- The court recognized the Appellant obtained possession even before the Wakf was established, before the Wakf Act of 1954 was passed, and that an attempt to evict them was made before the passage of the Amendment but was unsuccessful.
- "However, it is sufficient to note that the appellants were permitted to pay rent to the third defendant in the lawsuit in an interpleader litigation. They were occupying the space when the amendment took effect; in fact, an unsuccessful eviction attempt had been made before the change.
- Regarding the newly added clause, the Court concluded it would not apply in situations where wakf property leases had already expired and the tenant or lessor was in actual possession and undergoing civil eviction procedures when the 2013 modification went into effect.If the court were to rule differently, it would be using an interpretation that directly deprives the appellants of their rights under Article 20 (1), which would be an undesirable outcome. The simple language of that clause prevents such an interpretation, and the sources on that subject make it abundantly apparent that it is illegal to give effect to a penal statute in encompassing prior activities.
- As a result, when Section 52A was adopted, the words "Whoever alienates, purchases, or takes possession of" cannot be read or interpreted to include possession acquired in the past that resulted in continuous ownership. This means that Section 52A cannot apply to situations in which a Wakf property's lease had previously expired and the tenant or lessee was still in possession of the property at the time the 2013 modification took effect while also being subject to civil eviction proceedings.
- The bench made it clear that a lessee does not become an "encroacher" just because a lease or other agreement has passed the test of time or has been validly terminated in the past.
- The bench clarified this by saying:The court has concluded that leases or other agreements that have expired over time or that have been validly terminated in the past cannot be interpreted (as widely as suggested by the respondents) to entail that such lessees become "encroachers." Additionally, Section 3(ee) does not apply to former tenants whose possession is in dispute or who have eviction proceedings pending against them in court. The results of such an interpretation would be too shocking; renters who stayed put would be subject to prosecution even before the legality of the termination (of leases, for example) was determined. No reference is made to "continuing offense" or any phrase that suggests that the word (specified in Section 472 Cr. PC) would apply to conduct that started in the past, that is, before the 2013 amendment went into effect.
CONCLUSION
The bench stated, "Section 52A cannot apply to situations where leases of wakf properties had previously expired and the tenant or lessee was in actual possession and subject to civil eviction proceedings at the time the amendment of 2013 came into force." According to the bench, permitting the retrospective execution of a criminal procedure would constitute a violation of Article 20(1) of the Constitution.
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