Wakf Act, 1995 – s.52A added by 2013 amendment – Penal provision – Operation of, if retrospective – Held: No – Giving effect to a penal statute so as to cover past acts is a proscribed action in law – Therefore, s.52A cannot cover cases where leases of wakf properties had expired in the past and where the tenant or lessee was in physical possession and facing civil proceedings for eviction at the time the amendment of 2013 came into force – Interpretation of Statutes.
Wakf Act, 1995 – s.3(ee) added by 2013 amendment – “Encroacher” – Interpretation – Appellants were holding the premises and civil proceedings for their eviction were pending when the amendment came into force – In view of the dispute over the termination of their tenancy, appellants if became “encroachers” after the amendment became effective – Held: No – The expiry of leases, or other arrangements, by efflux of time or their valid terminations, in the past, cannot be construed to mean that such lessees become “encroachers” – Nor would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description u/s.3(ee) – The consequences of such an interpretation would be too startling; even before an adjudication of the validity of termination (of leases, for instance), tenants holding over would be exposed to prosecution – There is no allusion to “continuing offence” or any expression suggesting that such a term (mentioned in s.472, CrPC) would be attracted to actions which commenced in the past, i.e., before the amendment of 2013 came into force – To hold otherwise, would be depriving the appellants of their rights u/Article 20(1) which cannot be countenanced – Impugned judgment set aside – Code of Criminal Procedure, 1973 – ss.472, 482 – Constitution of India – Article 21. Words & Phrases – “Whoever alienates or purchases or takes possession 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 the appellant came into possession even before the wakf was created; before even the Wakf Act, 1954 was enacted (although the precise date is unclear and could be a matter of dispute). It is, however, sufficient to notice that in an interpleader suit, the appellants were permitted to pay rents to the third defendant in the suit. They were holding the premises when the amendment came into force; indeed, a proceeding purporting to evict them was unsuccessfully initiated before the amendment. Another one was commenced and was pending after it came into force. In these circumstances, could it be said that the dispute over the termination of their tenancy, resulted in their becoming “encroachers” after the amendment became effective? [Para 21][562-C-E]
1.2 The expiry of leases, or other arrangements, by efflux of time or their valid terminations, in the past, cannot be construed to mean that such lessees become “encroachers”. Nor would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description under Section 3 (ee). The consequences of such an interpretation would be too startling; even before an adjudication of the validity of termination (of leases, for instance), tenants holding over would be exposed to prosecution. There is no allusion to “continuing offence” or any expression suggesting that such a term (mentioned in Section 472 Cr. PC) would be attracted to actions which commenced in the past, i.e., before the amendment of 2013 came into force. To hold otherwise, this court would be resorting to an interpretation that directly deprives the appellants of their rights under Article 20(1) - a consequence that cannot be countenanced. The plain text of that provision forbids such an interpretation, and the authorities on that aspect clearly indicate that giving effect to a penal statute so as to cover past acts is a proscribed action in law. Therefore, the expression ANR.
“Whoever alienates or purchases or takes possession of”, which is the opening phrase of Section 52A, cannot be read or construed to include possession taken in the past, which resulted in continued possession, when the provision was enacted. Section 52A cannot cover cases where leases of wakf properties had expired in the past and where the tenant or lessee was, at the time the amendment of 2013 came into force, in physical possession and facing civil proceedings for eviction. It is a matter of record that the Kerala High Court quashed the order of the CEO of the respondent allowing a revision petition and setting aside the eviction of the tenant. The High Court set aside the finding that the tenant was an encroacher. The entire matter was remitted for fresh consideration, by the Wakf Tribunal. The impugned judgment cannot be sustained; it is set aside. [Paras 22-24][562-F-H; 563-A-C, F]
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1953] SCR 1188 – followed.
Ramesh Gobindram (Dead) through L.Rs. v Sugra Humayun 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; Kanaiyalal Chandulal Monim v. Indumati T. Potdar and Another [1958] 1 SCR 1394 – referred to.
Norman Printing Bureau v. PS Mamman Haji Wakf Trust 2013 (4) KLT 606 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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