IMPORTANT POINT
The court established that penal provisions of the Waqf Act cannot apply retrospectively to actions occurring before their enactment.

ORDER :

P.V.Kunhikrishnan, J.

These two Criminal Miscellaneous Cases are connected, and therefore I am disposing of these cases by a common order because a common legal issue is raised in these two cases. In these two cases, prosecution initiated against the petitioners under Section 52A of the Waqf Act, 1995 (for short, 'the Act') is challenged.

2. First I will narrate the facts in Crl.M.C. No.3009/2019:

The 2nd respondent herein filed a complaint before the Judicial First Class Magistrate Court, Kozhikode alleging an offence punishable under Section 52A of the Act against the petitioner. The allegation in the complaint is that the 2nd respondent is a statutory body constituted under the Act as per the board decision No.A1-1833/84 dated 23.08.2016. It is submitted that the Cheriya Chakalathoppa Tharawad Waqf and its properties are Waqf properties registered with the Kerala State Waqf Board as 1008/RA. According to the 2nd respondent, the petitioner/accused is in unauthorised occupation of the said Waqf property. As per Section 32 of the Act, it is the duty of the Waqf board to ensure that all the properties of the board are properly maintained, controlled, and administered and the income thereof is duly used for the objects and the purposes for which such Waqf were created. A petition was filed by the Mutawalli of the above Waqf before the Chief Executive Officer stating that the accused is unauthorizedly and illegally and without any valid documents occupying the Waqf building bearing door Nos.20/294 and 20/298 of Kozhikode corporation owned by Cheriya Chakalathoppa Tharawad Waqf. It is also alleged that, there is no valid lease agreement with the accused. In the complaint it is further stated that the rent paid by the accused is meager and there is default in payment also. Upon receipt of the petition from the Mutawalli of the Waqf, notice under Section 54 (1) of the Act was issued to the accused treating him as an encroacher as defined under Section 3 (ee) of the Act. To the notice, the accused entered appearance before the Chief Executive Officer and a counter was filed. The Chief Executive Officer after considering the contentions found that the accused is an encroacher in the said property and proceedings No.E4-34/60/2015-1 dated 28.2.2015 was issued for eviction of the accused. Even after the expiry of the period mentioned in the proceedings the accused is occupying the Waqf property as an encroacher and hence there is a huge loss of income to the Waqf during the past years is the submission. The accused is conducting a business in the Waqf building for so many years without any right and continuing the business in it is the submission. As per Section 56 of the Act, the Mutawalli has no authority to lease out Waqf building without obtaining prior sanction of the board and no such sanction was obtained in this respect is the further submission. According to the 2nd respondent, the accused is unauthorizedly and illegally occupying Waqf property without prior sanction of the Board and so the accused is liable to be prosecuted under Section 52A of the Act. Annexure-A is the complaint. According to the petitioner, even if the entire allegations are accepted, no offence is made out. It is the case of the petitioner that he disputes the nature of Waqf and assuming that the property is Waqf property, the 2nd respondent preferred a civil suit before the Waqf Tribunal, Kozhikode as OS No.38/2015 for the eviction of the lessee alias the accused from the plaint scheduled shop rooms. The petitioner appeared before the Waqf Tribunal. It is submitted that the Waqf judge without appreciating the evidence on record decreed the suit. Aggrieved by the same, the petitioner filed CRP No. 221/2018 (Waqf) before the Division Bench of this Court and the revision was admitted and stayed. Annexure-B is the memorandum of revision and Annexure-C is the interim order. Annexure-D is the order by which the interim order is extended until further orders.