K.SUKUMARAN  [ PETITIONERS/ACCUSED] Vs. SENIOR SUPERINTENDENT OF POST OFFICES  [RESPONDENTS/COMPLAINANT]

CRL.MC NO. 5601 OF 2018

(P.V.KUNHIKRISHNAN, J.)

In a significant ruling on November 7, 2024, the Kerala High Court, presided over by Justice P.V. Kunhikrishnan, held that prosecution under Section 52A of the Waqf Act could not be initiated against individuals in possession of Waqf property before the introduction of this section in 2013. The court’s decision came in response to a petition filed by two officials of the Postal Department in Kozhikode, Kerala, who faced prosecution for allegedly possessing Waqf property without the requisite sanction from the Waqf Board.

The case centered on a property owned by the Muslim trust JDT Islam, where a post office has been operating since 1999. The Kerala State Waqf Board, acting in 2017, labeled the Postal Department staff as “encroachers” after they failed to vacate the property. The board subsequently moved to prosecute them under Section 52A of the Waqf Act, a provision that stipulates rigorous imprisonment of up to two years for anyone who alienates, purchases, or possesses Waqf property without prior approval from the board. However, since Section 52A was not part of the Waqf Act until its inclusion in 2013, the petitioners argued that its provisions could not be retroactively applied to them, as they had been in possession of the property since 1999.

Justice Kunhikrishnan’s ruling underscored the legal principle that laws are typically prospective unless explicitly stated otherwise. Section 52A of the Waqf Act, introduced in 2013, mandates that any acquisition or possession of Waqf property must be sanctioned by the Waqf Board to prevent unauthorized use of these properties. However, the court found that in this particular case, since the petitioners had been using the property prior to 2013, they could not be retroactively held liable under the new section. The ruling highlighted the importance of respecting the timeline of legislative changes and emphasized that applying Section 52A to incidents predating its introduction would violate legal principles governing retrospective application.

This judgment by the Kerala High Court has broader implications for individuals and institutions involved in cases related to Waqf properties, particularly those who acquired or occupied such properties before the enactment of Section 52A. The ruling serves as a reminder of the need for clarity in property law and enforcement procedures regarding Waqf assets. It also touches on a growing area of contention as the management and regulation of Waqf properties have recently become a subject of intense debate and legislative reform efforts in various states, including Kerala and Karnataka. The Kerala High Court’s ruling, by reaffirming the principle of prospective legislation, reinforces the judicial approach to safeguarding against retroactive application of criminal provisions. It thereby protects individuals from being penalized under laws that were not in effect when they initially took possession of Waqf properties. The decision serves as a landmark in Waqf property law, clarifying that changes in statutory provisions cannot retrospectively impose new liabilities on actions or conditions that existed prior to their enactment.