P. V. NIDHISH & ORS. versus KERALA STATE WAKF BOARD & ANR. on 28 April 2023

[2023] 4 S.C.R. 547

P. V. NIDHISH & ORS.

v.

KERALA STATE WAKF BOARD & ANR.

(Criminal Appeal No. 309 of 2023)

APRIL 28, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Wakf Act, 1995 – s.52A added by 2013 amendment – Penalprovision – Operation of, if retrospective – Held: No – Giving effectto a penal statute so as to cover past acts is a proscribed action inlaw – Therefore, s.52A cannot cover cases where leases of wakfproperties had expired in the past and where the tenant or lesseewas in physical possession and facing civil proceedings for evictionat the time the amendment of 2013 came into force – Interpretationof Statutes.

Wakf Act, 1995 – s.3(ee) added by 2013 amendment –“Encroacher” – Interpretation – Appellants were holding thepremises and civil proceedings for their eviction were pending whenthe amendment came into force – In view of the dispute over thetermination of their tenancy, appellants if became “encroachers”after the amendment became effective – Held: No – The expiry ofleases, or other arrangements, by efflux of time or their validterminations, in the past, cannot be construed to mean that suchlessees become “encroachers” – Nor would past tenants whosepossession is disputed, and eviction proceedings pending againstthem before a court, fit that description u/s.3(ee) – The consequencesof such an interpretation would be too startling; even before anadjudication of the validity of termination (of leases, for instance),tenants holding over would be exposed to prosecution – There is noallusion to “continuing offence” or any expression suggesting thatsuch a term (mentioned in s.472, CrPC) would be attracted to actionswhich commenced in the past, i.e., before the amendment of 2013came into force – To hold otherwise, would be depriving theappellants of their rights u/Article 20(1) which cannot becountenanced – Impugned judgment set aside – Code of CriminalProcedure, 1973 – ss.472, 482 – Constitution of India – Article 21.

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AWords & Phrases – “Whoever alienates or purchases or takespossession of” in s.52A, Wakf Act – Discussed – Wakf Act, 1995 –s.52A.

Allowing the appeal, the Court

HELD: 1.1 In the present case, it is undeniable that theBappellant came into possession even before the wakf was created;before even the Wakf Act, 1954 was enacted (although the precisedate is unclear and could be a matter of dispute). It is, however,sufficient to notice that in an interpleader suit, the appellantswere permitted to pay rents to the third defendant in the suit.CThey were holding the premises when the amendment came intoforce; indeed, a proceeding purporting to evict them wasunsuccessfully initiated before the amendment. Another one wascommenced and was pending after it came into force. In thesecircumstances, could it be said that the dispute over thetermination of their tenancy, resulted in their becomingD“encroachers” after the amendment became effective? [Para21][562-C-E]

1.2 The expiry of leases, or other arrangements, by effluxof time or their valid terminations, in the past, cannot be construedto mean that such lessees become “encroachers”. Nor wouldEpast tenants whose possession is disputed, and evictionproceedings pending against them before a court, fit thatdescription under Section 3 (ee). The consequences of such aninterpretation would be too startling; even before an adjudicationof the validity of termination (of leases, for instance), tenantsFholding over would be exposed to prosecution. There is noallusion to “continuing offence” or any expression suggestingthat such a term (mentioned in Section 472 Cr. PC) would beattracted to actions which commenced in the past, i.e., beforethe amendment of 2013 came into force. To hold otherwise, thiscourt would be resorting to an interpretation that directly deprivesGthe appellants of their rights under Article 20(1) - a consequencethat cannot be countenanced. The plain text of that provisionforbids such an interpretation, and the authorities on that aspectclearly indicate that giving effect to a penal statute so as to coverpast acts is a proscribed action in law. Therefore, the expression H

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“Whoever alienates or purchases or takes possession of”, which isthe opening phrase of Section 52A, cannot be read or construedto include possession taken in the past, which resulted incontinued possession, when the provision was enacted. Section52A cannot cover cases where leases of wakf properties hadexpired in the past and where the tenant or lessee was, at thetime the amendment of 2013 came into force, in physicalpossession and facing civil proceedings for eviction. It is a matterof record that the Kerala High Court quashed the order of theCEO of the respondent allowing a revision petition and settingaside the eviction of the tenant. The High Court set aside thefinding that the tenant was an encroacher. The entire matter wasremitted for fresh consideration, by the Wakf Tribunal. Theimpugned judgment cannot be sustained; it is set aside. [Paras22-24][562-F-H; 563-A-C, F]

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Rao Shiv Bahadur Singh v. State of Vindhya Pradesh[1953] SCR 1188 – followed.

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Ramesh Gobindram (Dead) through L.Rs. v SugraHumayun Mirza Wakf [2010] 10 SCR 945; T. Barai v.Henry Ah Hoe [1983] 1 SCR 905 – relied on.

Securities & Exchange Board of India v. Ajay Agarwal[2010] 3 SCR 70; Mohan Lal v. State of Rajasthan(2015) 6 SCC 222 : [2015] 5 SCR 435; KanaiyalalChandulal Monim v. Indumati T. Potdar and Another[1958] 1 SCR 1394 – referred to.

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Norman Printing Bureau v. PS Mamman Haji Wakf Trust2013 (4) KLT 606 – referred to.

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.309 of 2023.

From the Judgment and Order dated 03.03.2016 of the High Courtof Kerala at Ernakulam in CRLMC No. 5072 of 2015.

R. Basant, Sr. Adv., Raghenth Basant, Senthil Jagadeesan, ManuBKrishnan, Ms. Roopali Lakhotia, Advs. for the Appellants.

Haris Beeran, Mustaq Salim, Azhar Asees, Sayid Marzook Bafaki,Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Advs. for theRespondents.CThe Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The present appeal[1] was heard finally, with the consent ofcounsel for parties. The appellants are aggrieved by the judgment of theKerala High Court[2] rejecting their petition under Section 482, CriminalDProcedure Code, 1973 (hereafter “Cr. PC”). They had, through thoseproceedings, sought a direction to quash a criminal complaint institutedagainst them.

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2. The appellants urge that one P.M. Mammu Haji leased twoEshop rooms (numbered as municipal numbers VII/214 and VII/215-hereafter “the premises”), long ago (in 1916), before the coming intoforce of the Wakf Act. “Norman Printing Bureau” (hereafter “theBureau”) was a concern of Achuthan Nair; it was functioning in thepremises. A partnership firm was later created, with one P.V. Sami as aFpartner. The firm continued all these years and continues now. TheBureau publishes ‘Norman Almanac’ containing astronomical data usedin astrology.

3. The respondents allege that P.M. Mammu Haji created a wakfin 1951. After his death, a suit was filed by his legal heirs (O.S. No. 130/G1965 before the Sub Court, Calicut) to remove the trustee. There wasan existing dispute even between the legal heirs of Mammu Haji whetherthere was a Wakf or a trust. In that suit, the court found that MammuHaji created a private Trust; it removed the existing trustee. In between, 1 Crl. A. No. 309/2023.H2 Dated 03.03.2016 in Crl. MC No. 5072/2015.

the rent for the premises was increased, and a Rent Enhancement Deedwas executed between the parties, on 15.09.1973. The appellants noticeduncertainty on account of lack of clarity about ownership of the premisesand filed an interpleader suit on 30.03.1998 before the Munsiff court,Kozhikode. That suit was transferred to the file of the District Judge(OS 147/2001)where the court decreed the suit and directed the appellantsto pay rent to the third defendant.

4. The CEO of the Board initiated several proceedings againstthe appellants for eviction. The first attempt, in 2004, resulted in an order[3]of the Wakf Board to the effect that the appellants were not inunauthorized occupation and could be evicted after issuing notice underprovisions of the Transfer of Property Act. Another proceeding (OS 13/2006) was filed before the Wakf Tribunal against the appellant firm’smanager, for its eviction. This was decreed; but in revision proceedings[4],the Kerala High Court ruled that the Wakf Tribunal lacked jurisdictionand the appellants could be evicted only through a civil proceeding beforea competent civil court.

5. A civil suit (O.S. No. 22/2012) claimed relief against an orderof injunction restraining reconstruction and structural alterations by theappellant; the injunction was issued by the CEO of the trust/wakf. Theappellants preferredthe suit and contended that the two, i.e.,wakf andtrust could not co-exist because awakf creates a dedication in favour ofGod while a trust vests the property in the hands of the trustees. Theappellants preferred an application alleging that the suit was notmaintainable, as a preliminary issue. The tribunal found in favour of therespondent/plaintiff, upon which the appellant approached the KeralaHigh Court[5]. A Division Bench of thecourt held[6] the suit maintainablebefore the tribunal. However, on the question of the plaintiff’s competenceto seek injunction (before the tribunal)regarding specific tenantedproperties, thecourt observed, “on behalf of the Wakf, against thedefendant is a matter which will have to be independently consideredand decided”as it was a “vexed” question of fact and law which couldnot be decided in a proceeding under Order 39, Rules 1 and 2 of theCode of Civil Procedure.

3 dated 16.05.2005

4 CRP No. 106/2008, decided on 14.10.2008.

5 in CRP (Wakf) No. 375/2012.

6 By order dated 05.08.2013, also reported as Norman Printing Bureau v PS MammanHaji Wakf Trust 2013 (4) KLT 606.

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6. During the pendency of the suit, the Wakf Act, 1995, wasamended, with effect from 01.11.2013. Two new provisions were added.One was the definition of “encroacher” [Section 3 (ee)]:

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“‘encroacher’ means any person or institution, public orprivate, occupying wakf property, in whole or part, withoutthe authority of law and includes a person whose tenancy,lease or licence has expired or has been terminated bymutawalli or the Board.”

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The “Board” was defined as follows: [Section 3 (c)]:

“c) “Board” means a Board of Waqf established under sub-section (1), or as the case may be, under sub-section (2) ofsection 13 and shall include a common Waqf Boardestablished under section 106"

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Some of the new provisions, inter alia, inserted by theamendment- including Section 52A and Section 54, read as follows:

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“52A. (1) Whoever alienates or purchases or takes possessionof, in any manner whatsoever, either permanently ortemporarily, any movable or immovable property being a waqfproperty, without prior sanction of the Board, shall bepunishable with rigorous imprisonment for a term which mayEextend to two years:

Provided that the waqf property so alienated shall withoutprejudice to the provisions of any law for the time being inforce, be vested in the Board without any compensationtherefor.

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(2) Notwithstanding anything contained in the Code ofCriminal Procedure, 1973 any offence punishable under thissection shall be cognizable and non-bailable.

(3) No court shall take cognizance of any offence under thissection except on a complaint made by the Board or anyGofficer duly authorised by the State Government in this behalf.

(4) No court inferior to that of a Metropolitan Magistrate ora Judicial Magistrate of the first class shall try any offencepunishable under this section.

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54. Removal of encroachment from waqf property.—(1)Whenever the Chief Executive Officer considers whether onreceiving any complaint or on his own motion that there hasbeen an encroachment on any land, building, space or otherproperty which is [1] [waqf] property and, which has beenregistered as such under this Act, he shall cause to be servedupon the encroacher a notice specifying the particulars ofthe encroachment and calling upon him to show cause beforea date to be specified in such notice, as to why an orderrequiring him to remove the encroachment before the date sospecified should not be made and shall also send a copy ofsuch notice to the concerned mutawalli.

(2) The notice referred to in sub-section (1) shall be servedin such manner as may be prescribed.

(3) If, after considering the objections, received during theperiod specified in the notice, and after conducting an inquiryin such manner as may be prescribed, the Chief ExecutiveOfficer is satisfied that the property in question is waqfproperty and that there has been an encroachment on anysuchwaqf property, he may, make an application to theTribunal for grant of order of eviction for removing] suchencroachment and deliver possession of the land, building,space or other property encroached upon to the mutawalli ofthe waqf.

(4) The Tribunal, upon receipt of such application from theChief Executive Officer, for reasons to be recorded therein,make an order of eviction directing that the waqf propertyshall be vacated by all persons who may be in occupationthereof or any part thereof, and cause a copy of the order tobe affixed on the outer door or some other conspicuous partof the waqf property:

Provided that the Tribunal may before making an order ofeviction, give an opportunity of being heard to the personagainst whom the application for eviction has been made bythe Chief Executive Officer.

(5) If any person refuses or fails to comply with the order ofeviction within forty-five days from the date of affixture of AB

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Athe order under sub-section (2), the Chief Executive Officeror any other person duly authorised by him in this behalfmay evict that person from, and take possession of, the waqfproperty.”

7. The amendment, to the Wakf Act, in 2013, came into effect byBvirtue of Section 1 (2) [“It shall come into force on such date as theCentral Government may, by notification in the Official Gazette,appoint”] on 01.11.2013. As mentioned earlier, as on that date, the civilproceedings initiated for eviction of the appellants were pending. Whileso, a criminal complaint[7] was filed before the Court of the JudicialMagistrate, First Class (“JMFC”) Kozhikode, alleging that the appellantsCwere encroachers and seeking their prosecution under Section 52A.The appellants alleged that they continued to pay the rent, in accordancewith the decree of the District Judge, in their interpleader suit, i.e., CS147/2001. The appellants preferred a petition under Section 482 of theCr. PC before the Kerala High Court alleging that they could not beDtreated as “encroachers” and were lawful occupants, whose evictionwas sought, in civil proceedings, and seeking quashing of thoseproceedings. By the impugned order, the High Court rejected the petition.8. In the impugned order, the High Court, after extracting thedefinition of “encroacher” and noticing Section 52A, held:E“4. When the tenancy has been terminated by the Board inthis particular case, the petitioners have become ‘encroacher’within the meaning of Section 3(ee) of the Act. In such case,the offence under Section 52A(1) can be attracted, if itsingredients are proved. As per Section 52A (3) of the Act, noFcourt shall take cognizance of any offence under this sectionexcept on a complaint made by the Board or any officer dulyauthorised by the State Government in this behalf. Therefore,this is not a matter wherein an investigation by the police iscalled for. Cognizance can be taken only on a complaint bythe Board or any officer duly authorised by the StateGGovernment in that behalf. Here, a complaint has been filedby the Kerala State Wakf Board represented by its authorisedofficer. Presently, there is absolutely nothing to have apremature termination of the prosecution proceedings againstthe petitioners.”

H7 ST No. 369/2015 dated 08.05.2013

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9. Mr. R. Basant, learned senior counsel argued that it is afundamentalprinciple of criminal jurisprudence that penal provisionscannot be applied with retrospective effect. The newly inserted provision,i.e., Section 52A makes “taking possession of waqf properties”apunishable offence. However, in this case, possession was taken in 1916,i.e., concededly much before the enactment of the Wakf Act and theamendment. Accordingly, the newly inserted provision would not applyto the facts of this case.

10. It was argued that Parliament never intended that those whoheld properties under prior leases and arrangements, upon their expiry,were to be treated as “encroachers”. Learned counsel contended thataside from the fact that the amendment cannot be construed as operatingretrospectively, the respondents cannot validly contend that those whowere in possession and occupation of the premises, as tenants for acentury became encroachers, upon enactment of the 2013 Act. Counselpointed out that the provision which enables the Wakf Board to dealwith encroachers, is Section 54; it provides for eviction. No proceedingswere taken out against the appellants, who were straightaway sought tobe dealt with as encroachers and prosecuted. Learned counsel reliedupon Article 20 (1) of the Constitution of India and submitted that theappellants’ conduct cannot be treated as an offence, even if Section52A were to be applicable. To uphold the respondent’s move woulddirectly violate the appellants’ rights under Article 20 (1).

11. Mr. Harris Beeran, learned counsel for the respondent, reliedupon the statement of objects and reasons of the amendment to theWakf Act of 2013. He placed emphasis on the rationale behind inclusionof Section 52A, that is to declare illegal holding and occupation of landsas criminal offence. As far as the appellants’ argument regarding theretrospective application of the provision is concerned, counsel relied onSecurities & Exchange Board of India v. Ajay Agarwal[8](hereafter“Ajay Agarwal”) and Mohan Lal v. State of Rajasthan[9] to urge thatsince the appellantsare still in possession of the property, the amendmentapplies to them.

8 (2010) 3 SCR 70.

9 (2015) 6 SCC 222.

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A12. It was urged by the respondents that the premises were leasedto the appellants without obtaining prior sanction of the Board on15.09.1973 for a period of 11 months by the then Managing TrusteeMr. K. V. Kunhammed Koya who was later removed by the Board asper the order in the proceedings Number 2/1976 dated 09.09.1978 dueto misfeasance and malfeasance. The accused have been conducting aBbusiness concern,”Norman Printing Bureau”, in the waqf building forthe last more than 40 years without any right tocontinue in it. As perSection 56 of the Waqf Act, 1995, the Mutawalli/ Managing Trustee ofwaqf has no authority to leaseout the building without obtaining priorsanction of the Board.C

13. Learned counsel submitted that in view of Section 472 Cr.PC,the continued possession of the appellants constituted a continuingoffence. Regardless of previous occupation, once the penal provisionbecame part of law, under the 2013 amendment, the appellants’ conductstood exposed to the risk of criminal prosecution. In such circumstances,Dthe reliance on Article 20 (1) is misplaced.

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14. The Wakf Act, 1954 was a precursor to the enactment of theWakf Act, 1995. This court explained the scheme of the 1995 Act inRamesh Gobindram (Dead) through L.Rs. v Sugra Humayun MirzaEWakf[10]as “Wakfs and matters relating thereto were for a long timegoverned by the Wakf Act, 1954. The need for a freshlegislation on the subject was, however, felt because of thedeficiencies noticed in the working of the said earlierFenactment especially those governing the Wakf Boards, theirpower of superintendence and control over the managementof individual wakfs. Repeated amendments to the 1954 Act,having failed to provide effective answers to the questionsthat kept arising for consideration, the Parliament had toGbring a comprehensive legislation in the form of Wakf Act1995 for better administration of wakfs and matters connectedtherewith or incidental thereto.

Chapter I of the 1995 Act deals with Preliminaries likedefinitions, title, extent and commencement and application H10 2010 (10) SCR 945.

of this Act. Chapter II provides for preliminary survey ofwakfs, publication of list of wakfs, disputes regarding wakfsand also the powers of the Tribunal to determine such disputes.Chapter III deals with Central Wakf Council while ChapterIV deals with establishment of Boards and their functions.Chapter V, VI and VII regulate the registration of Wakfs andmaintenance of accounts thereof and the finances of the WakfBoard. Chapter VIII, with which the controversy at hand ismore intimately connected deals with judicial proceedingsand, inter alia, provides for constitution of tribunals andadjudication of disputes by them as well as exclusion ofjurisdiction of Civil Courts. Chapter IX is a miscellaneouschapter that confers power on the Central Government toregulate the secular activities of wakfs and empowers the StateGovernment to issue directions apart from other provisionslike establishment and reorganization and establishment ofboards.”

15. The appellants contend that their continued occupation andrepeated yet unsuccessful attempts by the respondents to oust themfrom possessiondo not render their continuance in the premises any lesslawful and that the amendment of 2013 cannot be construed as operatingretrospectively; else, it would transgress their right under Article 20 (1)of the Constitution. The respondents contend that this is not an instanceof retrospective law but that the conduct (of continuing to occupy thepremises after being asked to vacate) amounts to a continuing offence.They also rely on the statement of objects and reasons to the 2013amendment and the ratio in Ajay Agarwal (supra)to urge that theamendment is not violative of Article 20 (1). The Statement of Objectsand Reasons to the amendment (of 2013) is extracted below:

“The Wakf Act, 1995, [which repealed and replaced the Wakf(Amendment) Act, 1984] came into force on the 1st day ofJanuary, 1996. The Act provides for the better administrationof auqaf and for matters connected therewith or incidentalthereto. However, over the years of the working of the Act,there has been a widespread feeling that the Act has not provedeffective enough in improving the administration of auqaf.

2. The Prime Minister’s High Level Committee for Preparationof Report on Social, Economic and Educational Status of the ABC

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AMuslim Community of India (also known as SacharCommittee) in its Report submitted to the Prime Minister onthe 17th November, 2006 considered the aforementioned issueand suggested certain amendments to the Act relating towomen’s representation, review of the composition of theCentral Wakf Council and the State Wakf Boards, a stringentBand more effective approach to countering encroachments ofWaqf properties and other matters. The Committee stressedthe need for setting up of a National Waqf DevelopmentCorporation and State Waqf Development Corporations soas to facilitate proper utilization of valuable waqf propertiesCfor the objectives intended. The Committee recommended thatthe Act should be amended so that the State Waqf Boardsbecome effective and are empowered to properly deal withthe removal of encroachments of waqf properties. It alsorecommended to amend the Act so that the Waqf Tribunal willbe manned by a full time Presiding Officer appointedDexclusively for waqf properties. The Joint ParliamentaryCommittee on Waqf in its Third Report presented to the RajyaSabha on the 4th March, 2008 made recommendations for awide range of amendments relating to time bound survey ofwaqf properties, prevention and removal of encroachments,Emaking the Central Waqf Council a more effective andmeaningful body, provisions for development of waqfproperties, etc. In its Ninth Report presented to the RajyaSabha on the 23rd October, 2008, the Joint ParliamentaryCommittee reconsidered certain issues. The recommendationsof the Joint Parliamentary Committee on Waqf wereFconsidered by the Central Waqf Council. The various issuesand the need for amendments to the Act have also beenconsidered in consultation with other stakeholders such asthe AllIndia Muslim Personal Law Board, representatives ofthe State Governments and the Chairmen and the ChiefGExecutive Officers of State Waqf Boards.”

16. In Ajay Agarwal (supra), the aggrieved party was not heldguilty of committing any offence. He was also not subjected to anypenalty. He was restrained by an order for a period of five years fromassociating with any corporate body in accessing the securities market;heHhad also been prohibited from buying, selling or dealing in securities for five years. The court relied on the definition of “offence” under theGeneral Clauses Act, 1897 (i.e., any act or an omission made punishableby any law for the time being in force). In view of this definition, alimited suspension from dealing in securities for five years did not amountto an “offence”. The court also relied on the definition of offence, underSection 2 (n) Cr. PC:

“2. (n) ‘offence’ means any act or omission made punishableby any law for the time being in force and includes any act inrespect of which a complaint may be made under Section 20of the Cattle-Trespass Act, 1871 (1 of 1871);”

17. In the present case, there is no controversy that Section 52Ais a penal provision; a person proceeded against faces the prospect, inthe event the charges are proved, of a prison sentence of up to twoyears; the offence is cognisable and non-bailable, notwithstanding anythingto the contrary in Cr. PC [Section 52A (2)].

18. The injunction against punishing anyone for conduct whichwas not an offence when it was committed, by an enactment, whichcreates one, subsequently, with retrospective effect¸ is enacted in ourConstitution as a Fundamental Right [Article 20 (1)[11]]. A ConstitutionBench of this court, in Rao Shiv Bahadur Singh v. State of VindhyaPradesh[12] had explained the purport of Article 20 (1):

“This article in its broad import has been enacted to prohibitconvictions and sentences under ex post facto laws. Theprinciple underlying such prohibition has been elaboratelydiscussed and pointed out in the very learned judgment ofJustice Willes in the well-known case of Phillips v. Eyre[(1870) 6 QBD 1, 23, 25] and also by the Supreme Court ofU.S.A. in Calder v. Bull [3 Dallas 386 : 1 L Ed 648, 649]. Inthe English case it is explained that ex post facto laws arelaws which voided and punished what had been lawful whendone. There can be no doubt as to the paramount importanceof the principle that such ex post facto laws, which 11Article 20 (1) reads as follows:

(1) No person shall be convicted of any offence except for violation of a law in force atthe time of the commission of the Act charged as an offence, nor be subjected to a penaltygreater than that which might have been inflicted under the law in force at the time of thecommission of the offence.’’121953 SCR 1188 @ 1198.

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Aretrospectively create offences and punish them are bad asbeing highly inequitable and unjust.”

19. Speaking about the same provision, this court held in T.Barai v. Henry Ah Hoe[13] that:

“22. It is only retroactive criminal legislation that is prohibitedBunder Article 20(1). The prohibition contained in Article 20(1)is that no person shall be convicted of any offence except forviolation of a law in force at the time of the commission of theact charged as an offence prohibits nor shall he be subjectedto a penalty greater than that which might have been inflictedCunder the law in force at the time of the commission of theoffence. It is quite clear that insofar as the Central AmendmentAct creates new offences or enhances punishment for aparticular type of offence no person can be convicted by suchex post facto law nor can the enhanced punishment prescribedby the amendment be applicable. But insofar as the CentralDAmendment Act reduces the punishment for an offencepunishable under Section 16(1)(a) of the Act, there is noreason why the accused should not have the benefit of suchreduced punishment. The rule of beneficial constructionrequires that even ex post facto law of such a type should beEapplied to mitigate the rigour of the law. The principle is basedboth on sound reason and common sense. This finds supportin the following passage from Craies on Statute Law, 7th Edn.,at pp. 388-89:

‘A retrospective statute is different from an ex post factoFstatute. “Every ex post facto law…” said Chase, J., in theAmerican case of Calder v. Bull [Calder v. Bull, 1 L Ed 648 :3 US 386 (1798)]

“must necessarily be retrospective, but every retrospective lawis not an ex post facto law. Every law that takes away orGimpairs rights vested agreeably to existing laws is retrospective,and is generally unjust and may be oppressive; it is a goodgeneral rule that a law should have no retrospect, but in casesin which the laws may justly and for the benefit of thecommunity and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon.They are certainly retrospective, and literally both concerningand after the facts committed. But I do not consider any lawex post facto within the prohibition that mollifies the rigourof the criminal law, but only those that create or aggravatethe crime, or increase the punishment or change the rules ofevidence for the purpose of conviction…. There is a greatand apparent difference between making an unlawful actlawful and the making an innocent action criminal andpunishing it as a crime.” (L Ed p. 650)’”

20. In Kanaiyalal Chandulal Monim v. Indumati T. Potdar andAnother,[14 ]this court had to decide whether a landlord had deniedamenities which were enjoyed by his tenant, calling for his prosecutionunder Section 24(1)(4) of the Bombay Rents Hotel and Lodging HouseRates Control Act 57 of 1947. The provision read as follows:

“24. (1) No landlord either himself or through any personacting or purporting to act on his behalf shall without just orsufficient cause cut off or withhold any essential supply orservice enjoyed by the tenant in respect of the premises let tohim.”

Section 25 (4) enacted a punishment of up to three monthsimprisonment, or both. The landlord resisted the prosecution on the groundthat the amenity, i.e., the water supply had been disconnected to thepremises due to the default of the predecessor in title before he becamethe owner. This was negatived, and he was concurrently convicted. Byan amendment in 1953, an explanation was added, which said that thewithholding supplies could be through acts or omissions. This courtinterpreted Section 24 as imposing an obligation (of providing the amenity)in presenti, after coming into force of the enactment:

“Is it enough that this essential supply should have been“enjoyed” by the tenant at any past time, however remote, orthat it should have been “enjoyed” at any time after thecoming into effect of the Act? We are assuming for the purposesof this decision that the first respondent was the tenant at allmaterial times. In our opinion, the Section makes it essentialthat the particular essential supply should have been available A

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Afor the use of the tenant at some time when the Act was inforce. If, on the other hand, the Section were construed in thesense that the supply should have been “enjoyed” at sometime in the remote past, that is, before the Act was enforced,the act of the landlord, when it was committed, may not havebeen penal; but the same act would become penal on theBcoming into effect of the Act. In that sense, it would amountto ex-post facto legislation, and we cannot accede to theargument that such was the intention of the legislature — anintention which would come within the prohibition of Article20(1) of the Constitution.”

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21. In the present case, it is undeniable that the appellant cameinto possession even before the wakf was created; before even theWakf Act, 1954 was enacted (although the precise date is unclear andcould be a matter of dispute). It is, however, sufficient to notice that inan interpleader suit, the appellants were permitted to pay rents to theDthird defendant in the suit. They were holding the premises when the

amendment came into force; indeed, a proceeding purporting to evictthem was unsuccessfully initiated before the amendment. Another onewas commenced and was pending after it came into force. In thesecircumstances, could it be said- having regard to the previous discussion-that the dispute over the termination of their tenancy, resulted in theirEbecoming “encroachers” after the amendment became effective?

22. In the considered view of this court, the expiry of leases, orother arrangements, by efflux of time or their valid terminations, in thepast, cannot be construed (as broadly as suggested by the respondents)to mean that such lessees become “encroachers”. Nor would pastFtenants whose possession is disputed, and eviction proceedings pendingagainst them before a court, fit that description under Section 3 (ee).The consequences of such an interpretation would be too startling; evenbefore an adjudication of the validity of termination (of leases, forinstance), tenants holding over would be exposed to prosecution. ThereGis no allusion to “continuing offence” or any expression suggesting thatsuch a term (mentioned in Section 472 Cr.PC) would be attracted toactions which commenced in the past, i.e., before the amendment of2013 came into force. To hold otherwise, this court would be resorting toan interpretation that directly deprives the appellants of their rights underArticle 20 (1)- a consequence that cannot be countenanced. The plainH

text of that provision forbids such an interpretation, and the authoritieson that aspect clearly indicate that giving effect to a penal statute so asto cover past acts is a proscribed action in law. Therefore, the expression“Whoever alienates or purchases or takes possession of”, which isthe opening phrase of Section 52A, cannot be read or construed to includepossession taken in the past, which resulted in continued possession,when the provision was enacted. That is to say that Section 52A cannotcover cases where leases of wakf properties had expired in the past andwhere the tenant or lessee was, at the time the amendmentof 2013 cameinto force, in physical possession and facing civil proceedings for eviction.

23. It is a matter of record that by an order dated 27.10.2020, theKerala High Court quashed the order of the CEO of therespondent[15]allowing a revision petition and setting aside the eviction ofthe tenant. The High Court set aside the finding that the tenant was anencroacher. The entire matter was remitted for fresh consideration, bythe Wakf Tribunal, with the following directions:

“If the entity created by Mammu Haji is found to be a Wakf,the person in Management shall have the powers to terminatethe tenancy and shall be entitled to take proceedings underthe Wakf Act for eviction of a tenant, who after suchtermination of tenancy, is deemed to be an encroacher. Wemake it clear that we have not observed on the merits of thecontentions of eitherparties. The issues have to be consideredin O.S. No. 22/2012.”

24. In view of the foregoing discussion, the impugned judgmentcannot be sustained; it is hereby set aside. The appeal is allowed butwithout order on costs.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

15 In CRP(Wakf) No. 150/2016.

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