According to a recent ruling of the Kerala High Court, there will be no prosecution if any Waqf land is occupied prior to fusing section 52A in the Waqf Act in 2013. The High Court pronounced that as the statute governing penalties for occupying Waqf property was established in 2013, it cannot be applied to situations that occurred before that year. The verdict was announced by a bench of Justice P V Kunhikrishnan on 7th November in a petition moved by two officials of the Postal Department.
Based on a complaint submitted by the Kerala State Wakf Board, the case was brought against the Marikunnu Sub Post Master and the Senior Superintendent of the Calicut Postal Division. After the Waqf Tribunal ordered the postal personnel to leave the property in 2018, the board filed a case against them for not complying. The court, however, decided that the officials’ prosecution was unsustainable.
The action against persons accused of possessing Waqf property since 1999 was likewise halted by the High Court which also put a stop to the Waqf Board’s allegation of criminal activity. A case was filed by the Kerala Wakf Board which had accused the Postal Department of Kozhikode district of confiscating a Waqf property without taking its permission to run a post office which was opened in 1999 there. The Waqf Board declared the Postal Department as an encroacher in 2016.
The Waqf Board alleged that the employees of this department had committed a crime and demanded action against two employees of the department under Section 52A of the Waqf Act. According to this clause, a person faces up to two years in prison if they transfer, purchase, sell, or occupy any Waqf Board property without the board’s consent. The employees contended in the court that they were on the property before 2013 which has been deemed as Waqf and hence there is no basis for criminal charges against them in such a circumstance. They had requested the court to stop the action against them.
The judge agreed with their arguments and highlighted, “Admittedly Annexure-A14 complaint was filed under Section 52A of the Act. Admittedly Section 52A was inserted in the Act in the year 2013. It is also an admitted fact that the petitioners were in possession of the property even before the introduction of Section 52A of the Act.”
He added, “A perusal of the same would not show that a person who is in occupation of waqf property even prior to the insertion of Section 52A of the Act is liable to be prosecuted. Admittedly the Department of Posts were in possession of the property even prior to the insertion of Section 52A of the Act. The Post Office was functioning from 1999 onwards. Hence I am of the considered opinion that the prosecution against the petitioners is unsustainable. Therefore, this criminal miscellaneous case is allowed. All further proceedings against the petitioners in C.C.No.1024/2017 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, are quashed.”
Kerala High Court stated that Section 52A of the Waqf Act, which was amended in 2013, does not allow for the prosecution of those who occupied waqf property before the modification for transferring the land without the Waqf Board’s approval. The observation was made during the dismissal of criminal proceedings against two Department of Posts officers who were charged with alienating waqf property without the board’s approval and a case was filed against them by the Kerala State Waqf Board after the officials did not vacate the property despite the Waqf Tribunal directing them to do so in 2018.
