In a significant ruling, the Kerala High Court has decided that criminal prosecution cannot be pursued for occupying Waqf property if the occupation began prior to the introduction of Section 52A of the Waqf Act in 2013. The decision was issued by Justice P.V. Kunhikrishnan in response to a petition filed by two officials from the Postal Department who had been occupying Waqf land since 1999.
The case stemmed from a complaint lodged by the Kerala State Waqf Board against the Marikunnu Sub Post Master and the Senior Superintendent of the Calicut Postal Division. The Board accused them of encroaching on Waqf property, asserting that they had failed to vacate the premises even after a Waqf Tribunal order in 2018 instructed them to do so. The board filed criminal charges under Section 52A of the Waqf Act, a clause introduced in 2013, which stipulates that individuals occupying or transferring Waqf property without board permission could face up to two years in prison.
The Postal Department employees contended that they had been occupying the property since 1999—well before Section 52A’s enactment. They argued that there was no legal basis for prosecution, as the law did not apply retroactively. The High Court upheld their stance, quashing the criminal proceedings and stating that Section 52A could not be enforced against those who occupied Waqf land before its introduction.
Justice Kunhikrishnan emphasized, “The Department of Posts has been in possession of the property since 1999. I am of the considered opinion that the prosecution against the petitioners is unsustainable. All further proceedings against the petitioners are quashed.”
This ruling halts all ongoing legal action against the Postal Department employees and sets a precedent regarding the non-retroactive application of Section 52A of the Waqf Act. The High Court’s decision underscores that the 2013 statute on penalties for unauthorized Waqf property occupation cannot be retroactively applied to prior cases, providing clarity on similar cases involving pre-2013 Waqf land occupations.
(With inputs from OpIndia)
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