The ruling, delivered by Justice P V Kunhikrishnan, was in response to a plea by two individuals challenging their prosecution under this section following a complaint by the Kerala State Waqf Board.
Kerala: The Kerala High Court ruled that Section 52A of the Waqf Act, which came into effect in November 2013 and penalizes the alienation of waqf property without the Waqf Board’s approval, does not apply retroactively.
The ruling, delivered by Justice P V Kunhikrishnan, was in response to a plea by two individuals challenging their prosecution under this section following a complaint by the Kerala State Waqf Board.
Section 52A, effective from November 1, 2013, imposes penalties for the unauthorized transfer of waqf property.
The Board had claimed that the two individuals were unlawfully occupying the Cheriya Chakalathoppa Tharawad Waqf property within the Kozhikode corporation limits. However, the High Court stated that to initiate prosecution under Section 52A of the Act, there must be evidence showing that the accused either alienated, purchased, or took possession of any movable or immovable property without the prior approval of the Board.
“Clearly, there has been no alienation by the accused (petitioners), nor have they purchased the waqf property. It is also important to note that the petitioners did not take possession of the waqf property after Section 52A came into effect,”
the court observed.
Furthermore, the court noted that there was no dispute regarding the fact that the petitioners had been in possession of the disputed property even before the enactment of Section 52A.
In light of this, Justice Kunhikrishnan concluded that the prosecution against the petitioners was not maintainable, as Section 52A does not apply retroactively.
The High Court emphasized that for prosecution under Section 52A, there must be evidence showing that the accused either alienated, purchased, or took possession of the waqf property without the Board’s prior consent. The court observed that the petitioners had neither alienated nor purchased the waqf property, nor had they taken possession of it after Section 52A came into force. It was also acknowledged that the petitioners had been in possession of the property prior to the enactment of this provision.
Consequently, the court concluded that the prosecution could not proceed since Section 52A does not have retrospective effect and quashed the criminal cases against the petitioners pending before the Judicial First Class Magistrate Court – I, Kozhikode.
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