IMPORTANT POINT
Encroachment over Wakf property – Injunction against punishing anyone for conduct which was not an offence when it was committed, by an enactment which creates one, subsequently, with retrospective effect¸ is enacted in our Constitution as a Fundamental Right.

JUDGMENT :

S. Ravindra Bhat, J.

1. The present appeal¹[Crl.A. No. 309/2023.] was heard finally, with the consent of counsel for parties. The appellants are aggrieved by the judgment of the Kerala High Court²[Dated 03.03.2016 in Crl. MC No. 5072/2015.] rejecting their petition under Section 482, Criminal Procedure Code, 1973 (hereafter “Cr. PC”). They had, through those proceedings, sought a direction to quash a criminal complaint instituted against them.

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

3. The respondents allege that P.M. Mammu Haji created a wakf in 1951. After his death, a suit was filed by his legal heirs (O.S. No. 130/1965 before the Sub Court, Calicut) to remove the trustee. There was an existing dispute even between the legal heirs of Mammu Haji whether there was a Wakf or a trust. In that suit, the court found that Mammu Haji created a private Trust; it removed the existing trustee. In between, the rent for the premises was increased, and a Rent Enhancement Deed was executed between the parties, on 15.09.1973. The appellants noticed uncertainty on account of lack of clarity about ownership of the premises and 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 appellants to pay rent to the third defendant.

4. The CEO of the Board initiated several proceedings against the appellants for eviction. The first attempt, in 2004, resulted in an order³[dated 16.05.2005] of the Wakf Board to the effect that the appellants were not in unauthorized occupation and could be evicted after issuing notice under provisions of the Transfer of Property Act. Another proceeding (OS 13/2006) was filed before the Wakf Tribunal against the appellant firm’s manager, for its eviction. This was decreed; but in revision proceedings⁴[CRP No. 106/2008, decided on 14.10.2008.], the Kerala High Court ruled that the Wakf Tribunal lacked jurisdiction and the appellants could be evicted only through a civil proceeding before a competent civil court.

5. A civil suit (O.S. No. 22/2012) claimed relief against an order of injunction restraining reconstruction and structural alterations by the appellant; the injunction was issued by the CEO of the trust/wakf. The appellants preferred the suit and contended that the two, i.e., wakf and trust could not co-exist because a wakf creates a dedication in favour of God while a trust vests the property in the hands of the trustees. The appellants preferred an application alleging that the suit was not maintainable, as a preliminary issue. The tribunal found in favour of the respondent/plaintiff, upon which the appellant approached the Kerala High Court⁵[in CRP (Wakf) No. 375/2012.]. A Division Bench of the court held⁶[By order dated 05.08.2013, also reported as Norman Printing Bureau v PS Mamman Haji Wakf Trust 2013 (4) KLT 606.] the suit maintainable before the tribunal. However, on the question of the plaintiff’s competence to seek injunction (before the tribunal) regarding specific tenanted properties, the court observed, “on behalf of the Wakf, against the defendant is a matter which will have to be independently considered and decided” as it was a “vexed” question of fact and law which could not be decided in a proceeding under Order 39, Rules 1 and 2 of the Code of Civil Procedure.

6. During the pendency of the suit, the Wakf Act, 1995, was amended, with effect from 01.1