Supreme Court clarifies the definition of “encroacher” under the Wakf Act in property dispute: P.V. Nidhish & Ors. vs. Kerala State Wakf Board & Anr. (28 April 2023)

LEGAL ISSUE: Whether tenants of Wakf properties whose leases have expired can be termed “encroachers” under the Wakf Act, 1995, particularly concerning the retrospective application of the 2013 amendment.

CASE TYPE: Property Law, Wakf Law, Criminal Law

Case Name: P.V. Nidhish & Ors. vs. Kerala State Wakf Board & Anr.

Judgment Date: 28 April 2023

Date of the Judgment: 28 April 2023

Citation: 2023 INSC 452

Judges: S. Ravindra Bhat, J., Dipankar Datta, J.

Can a tenant whose lease has expired be automatically labeled an “encroacher” under the Wakf Act, 1995, and subjected to criminal prosecution? The Supreme Court of India recently addressed this crucial question in a case involving a long-standing property dispute. The court clarified the scope of the term “encroacher” under the Wakf Act, particularly concerning the retrospective application of the 2013 amendment. This judgment has significant implications for tenants of Wakf properties across India.

The Supreme Court bench, comprising Justices S. Ravindra Bhat and Dipankar Datta, delivered the judgment. The opinion was authored by Justice S. Ravindra Bhat.

Case Background

The case revolves around a property in Kerala where a printing business, “Norman Printing Bureau,” has been operating since 1916. The property was initially leased by P.M. Mammu Haji. The respondents, the Kerala State Wakf Board, claimed that Mammu Haji had created a Wakf (a religious endowment) in 1951. However, a dispute arose among Mammu Haji’s legal heirs regarding whether the property was a Wakf or a private trust. The court eventually declared it a private trust. The appellants, who are successors of the original tenants, continued to occupy the property and pay rent.

Over the years, the Wakf Board initiated several proceedings to evict the appellants. These attempts were largely unsuccessful, with the High Court ruling in one instance that the Wakf Tribunal lacked jurisdiction. A civil suit was also filed by the appellants challenging the maintainability of the suit by the Wakf Board. While these proceedings were ongoing, the Wakf Act, 1995, was amended in 2013, introducing new definitions and provisions, including the definition of “encroacher” and a penal provision for unauthorized possession of Wakf property.

Timeline

Course of Proceedings

The appellants, facing a criminal complaint under the amended Wakf Act, filed a petition before the Kerala High Court under Section 482 of the Criminal Procedure Code, 1973, seeking to quash the complaint. They argued that they were not “encroachers” but lawful occupants, and that the criminal proceedings were an abuse of the legal process. The High Court rejected their petition, leading to the present appeal before the Supreme Court.

Legal Framework

The core of the legal framework in this case involves the Wakf Act, 1995, and its 2013 amendment. The amendment introduced the definition of “encroacher” under Section 3(ee), which includes:

“‘encroacher’ means any person or institution, public or private, occupying wakf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board.”

The amendment also inserted Section 52A, which criminalizes the unauthorized possession of Wakf property:

“52A. (1) Whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a waqf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment for a term which may extend to two years:

Provided that the waqf property so alienated shall without prejudice to the provisions of any law for the time being in force, be vested in the Board without any compensation therefor.

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

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

(4) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this section.”

Section 54 of the Wakf Act, 1995, outlines the procedure for removal of encroachment from Wakf property.

The Supreme Court also considered Article 20(1) of the Constitution of India, which prohibits retrospective criminal legislation:

“No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

Arguments

Appellants’ Arguments:

• The appellants argued that Section 52A of the Wakf Act, 1995, cannot be applied retrospectively. They had taken possession of the property in 1916, long before the enactment of the Wakf Act and its subsequent amendment.
• They contended that the 2013 amendment could not automatically classify them as “encroachers” simply because their lease had expired, especially since they were in possession as tenants for a century.
• The appellants emphasized that Section 54 of the Wakf Act, 1995, provides for eviction proceedings against encroachers, which should have been followed instead of directly initiating criminal prosecution.
• They argued that applying Section 52A to their case would violate their fundamental rights under Article 20(1) of the Constitution of India, as it would punish them for conduct that was not an offense when it occurred.

Respondents’ Arguments:

• The respondents argued that the 2013 amendment, particularly Section 52A, was intended to address illegal occupation of Wakf properties.
• They contended that the appellants’ continued possession of the property, even after the lease expiry, constituted a continuing offense, making the 2013 amendment applicable to them.
• The respondents relied on the statement of objects and reasons of the 2013 amendment, emphasizing that it aimed to criminalize the illegal holding and occupation of Wakf lands.
• They cited the cases of Securities & Exchange Board of India v. Ajay Agarwal [(2010) 3 SCR 70] and Mohan Lal v. State of Rajasthan [(2015) 6 SCC 222] to argue that the amendment applies to the appellants because they were still in possession of the property.
• The respondents argued that the lease was granted without prior sanction of the Board and that the appellants had no right to continue in the property.

Issues Framed by the Supreme Court

The Supreme Court considered the following key issue:

1. Whether the appellants, who were in possession of Wakf property as tenants before the 2013 amendment to the Wakf Act, 1995, can be considered “encroachers” under the amended definition and subjected to criminal prosecution under Section 52A of the Act.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Cases:

• Ramesh Gobindram (Dead) through L.Rs. v Sugra Humayun Mirza Wakf [2010 (10) SCR 945]: The Supreme Court of India discussed the scheme of the Wakf Act, 1995.
• Securities & Exchange Board of India v. Ajay Agarwal [(2010) 3 SCR 70]: The Supreme Court of India considered the definition of “offence” under the General Clauses Act, 1897, and the Cr. PC. The Court held that a limited suspension from dealing in securities for five years did not amount to an “offence”.
• Mohan Lal v. State of Rajasthan [(2015) 6 SCC 222]: The Supreme Court of India was cited by the respondents to argue that since the appellants are still in possession of the property, the amendment applies to them.
• Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1953 SCR 1188]: A Constitution Bench of the Supreme Court of India explained the purport of Article 20(1) of the Constitution of India, which prohibits convictions and sentences under ex post facto laws.
• T. Barai v. Henry Ah Hoe [1983] 1 SCR 905: The Supreme Court of India discussed the prohibition against retroactive criminal legislation under Article 20(1) of the Constitution of India.
• Kanaiyalal Chandulal Monim v. Indumati T. Potdar and Another [1958 ] 1 SCR 1394: The Supreme Court of India interpreted Section 24 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, and held that the obligation to provide amenities applied after the Act came into force.

Statutes:

• Wakf Act, 1954: The precursor to the Wakf Act, 1995.
• Wakf Act, 1995: The main legislation governing Wakfs in India.
• Section 3(ee), Wakf Act, 1995: Defines “encroacher.”
• Section 52A, Wakf Act, 1995: Criminalizes unauthorized possession of Wakf property.
• Section 54, Wakf Act, 1995: Outlines the procedure for removal of encroachment from Wakf property.
• Article 20(1), Constitution of India: Prohibits retrospective criminal legislation.
• Section 472, Criminal Procedure Code, 1973: Defines continuing offence.

Judgment

The Supreme Court allowed the appeal, setting aside the High Court’s judgment. The Court held that the appellants could not be treated as “encroachers” under the amended Wakf Act, 1995, and therefore, could not be prosecuted under Section 52A.

How each authority was viewed by the Court?

• The Court relied on Ramesh Gobindram (Dead) through L.Rs. v Sugra Humayun Mirza Wakf [2010 (10) SCR 945]* to understand the scheme of the Wakf Act, 1995.
• The Court distinguished Securities & Exchange Board of India v. Ajay Agarwal [(2010) 3 SCR 70]* and held that a limited suspension from dealing in securities for five years did not amount to an “offence”, which is not the case here as the appellants were facing criminal prosecution.
• The Court distinguished Mohan Lal v. State of Rajasthan [(2015) 6 SCC 222]* and held that the amendment cannot be applied retrospectively to the appellants.
• The Court relied on Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [1953 SCR 1188]* to emphasize the prohibition of ex post facto laws under Article 20(1).
• The Court relied on T. Barai v. Henry Ah Hoe [1983] 1 SCR 905* to reinforce the prohibition against retroactive criminal legislation under Article 20(1).
• The Court relied on Kanaiyalal Chandulal Monim v. Indumati T. Potdar and Another [1958 ] 1 SCR 1394* to interpret the obligation to provide amenities under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, as applying after the Act came into force.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the principle against retrospective application of criminal laws, as enshrined in Article 20(1) of the Constitution. The Court emphasized that Section 52A of the Wakf Act, 1995, could not be applied to actions that occurred before the 2013 amendment. The Court also took into account the fact that the appellants had been in possession of the property for a long time, and that their status as tenants was a matter of dispute. The court also considered the fact that the Wakf Board had not followed the procedure for eviction under Section 54 of the Wakf Act, 1995.

Fact:Law Ratio: The ratio of fact to law in this case is 30:70. The court primarily focused on the legal principles of retrospective application of criminal law and the interpretation of the Wakf Act, 1995. However, the court also considered the factual aspects of the case, such as the long-standing possession of the property and the dispute over the status of tenancy.

The court’s reasoning was based on the following key points:

• The court emphasized that “penal provisions cannot be applied with retrospective effect.”
• The court clarified that the term “encroacher” cannot be applied retrospectively to tenants whose leases expired before the 2013 amendment.
• The court stated that “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’.”
• The court also noted that “there is no allusion to ‘continuing offence’ or any expression suggesting that such a term…would be attracted to actions which commenced in the past.”
• The court concluded that “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.”

The court did not consider any alternative interpretations that would have supported the respondents’ position. The court’s decision was unanimous.

Key Takeaways

• Tenants of Wakf properties whose leases expired before the 2013 amendment to the Wakf Act, 1995, cannot be automatically classified as “encroachers” under the amended definition.
• Section 52A of the Wakf Act, 1995, which criminalizes unauthorized possession of Wakf property, cannot be applied retrospectively.
• Wakf Boards must follow the procedure for eviction under Section 54 of the Wakf Act, 1995, instead of directly initiating criminal prosecution.
• This judgment provides significant protection to tenants of Wakf properties, ensuring that they are not subjected to criminal prosecution for actions that were not offenses when they occurred.

Directions

The Supreme Court set aside the impugned judgment of the Kerala High Court and allowed the appeal. The criminal proceedings against the appellants were quashed.

Development of Law

The ratio decidendi of this case is that the definition of “encroacher” under the Wakf Act, 1995, cannot be applied retrospectively, and that Section 52A of the Act cannot be used to prosecute tenants whose leases expired before the 2013 amendment. This judgment clarifies the scope of the term “encroacher” and provides important protection to tenants of Wakf properties. The Supreme Court has upheld the principle against retrospective application of criminal laws, as enshrined in Article 20(1) of the Constitution.

Conclusion

The Supreme Court’s judgment in P.V. Nidhish & Ors. vs. Kerala State Wakf Board & Anr. provides much-needed clarity on the definition of “encroacher” under the Wakf Act, 1995. The Court’s emphasis on the principle against retrospective application of criminal laws ensures that tenants of Wakf properties are not unfairly subjected to criminal prosecution. This decision has significant implications for the administration of Wakf properties and the protection of tenants’ rights.

Category

Parent Category: Wakf Law

Child Category: Encroachment

Child Category: Section 3(ee), Wakf Act, 1995

Child Category: Section 52A, Wakf Act, 1995

Child Category: Section 54, Wakf Act, 1995

Parent Category: Criminal Law

Child Category: Retrospective Application of Law

Child Category: Article 20(1), Constitution of India

Parent Category: Property Law

Child Category: Tenancy

FAQ

Q: What is the main issue in the P.V. Nidhish case?

A: The main issue was whether tenants of Wakf properties whose leases expired before the 2013 amendment to the Wakf Act, 1995, could be termed “encroachers” and subjected to criminal prosecution under Section 52A of the Act.

Q: What did the Supreme Court decide?

A: The Supreme Court held that the tenants could not be considered “encroachers” under the amended definition and could not be prosecuted under Section 52A, as the amendment cannot be applied retrospectively.

Q: What is the definition of “encroacher” under the Wakf Act, 1995?

A: According to Section 3(ee) of the Wakf Act, 1995, an “encroacher” is any person or institution occupying Wakf property without legal authority, including those whose tenancy, lease, or license has expired or been terminated.

Q: What is Section 52A of the Wakf Act, 1995?

A: Section 52A is a penal provision that criminalizes the unauthorized possession of Wakf property. It prescribes a punishment of rigorous imprisonment for a term which may extend to two years.

Q: What is the significance of Article 20(1) of the Constitution of India in this case?

A: Article 20(1) prohibits retrospective criminal legislation. The Supreme Court relied on this article to hold that Section 52A of the Wakf Act, 1995, cannot be applied to actions that occurred before the 2013 amendment.

Q: What does this judgment mean for tenants of Wakf properties?

A: This judgment provides protection to tenants of Wakf properties, ensuring that they are not automatically labeled “encroachers” and subjected to criminal prosecution simply because their leases have expired. Wakf Boards must follow the proper eviction procedures under Section 54 of the Wakf Act, 1995.