Holding

Section 52A of the Wakf Act, 1995, as amended in 2013, cannot be applied retrospectively to prior possession, and the expiry of a lease does not automatically render a tenant an ‘encroacher’ within the meaning of Section 3(ee), precluding prosecution under the penal provision.

Summary

The appellants, long‑time tenants of premises that later became part of a Wakf, were facing civil eviction when the Wakf Act, 1995 was amended in 2013 adding a penal provision (Section 52A) and a definition of "encroacher". The Wakf Board filed a criminal complaint under Section 52A alleging the appellants were encroachers, and the Kerala High Court rejected the appellants' petition to quash the complaint. The Supreme Court examined whether the amendment could be applied retrospectively to possession that began before its commencement and whether expired leases automatically made tenants encroachers. It held that penal statutes cannot have retrospective effect, that the expiry of a lease does not convert a tenant into an encroacher, and that applying Section 52A would violate Article 20(1) of the Constitution. Consequently, the criminal complaint was set aside and the appeal was allowed.

Issues considered

Whether Section 52A of the Wakf Act, 1995 (as amended in 2013) can be applied retrospectively to possession that began before the amendment.
Whether a tenant whose lease has expired or whose tenancy is disputed, pending civil eviction, becomes an "encroacher" under Section 3(ee) of the Wakf Act, 1995.
Whether the retrospective application of Section 52A violates Article 20(1) of the Constitution (ex post facto prohibition).
Whether the concept of a "continuing offence" under Section 472 of the CrPC can render ongoing possession punishable under Section 52A.
Whether the criminal complaint can be quashed under Section 482 of the Code of Criminal Procedure.

Legislation cited

Code of Criminal Procedure, 1973s. 472, s. 482
Constitution of Indias. Article 20(1), s. Article 21
General Clauses Act, 1897s. 2(n)
Wakf Act, 1995s. 1(2), s. 3(ee), s. 52A(1), s. 52A(2), s. 52A(3), s. 52A(4), s. 54, s. 56

Subjects

Wakf ActSection 52Aex post factoArticle 20(1)encroachmentretrospective legislationcriminal procedurecivil evictionstatutory interpretationpenal provision

Judgment

[2023] 4 S.C.R. 547 547

P. V. NIDHISH & ORS. A
v.
KERALA STATE WAKF BOARD & ANR.
(Criminal Appeal No. 309 of 2023)
APRIL 28, 2023 B
[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]
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
C
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.
D
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 E
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
F
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 G
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.
H
547
548 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 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
B 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.
C 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
D “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
E 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
F 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
G 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
H
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 549
ANR.

“Whoever alienates or purchases or takes possession of”, which is A
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
B
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 C
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. D
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 E
(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. F
Case Law Reference
[2010] 3 SCR 70 referred to Para 11
[2015] 5 SCR 435 referred to Para 11
[2010] 10 SCR 945 referred to Para 14 G

[1953] SCR 1188 followed Para 18
[1983] 1 SCR 905 relied on Para 19
[1958] 1 SCR 1394 referred to Para 20
H
550 SUPREME COURT REPORTS [2023] 4 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
309 of 2023.
From the Judgment and Order dated 03.03.2016 of the High Court
of Kerala at Ernakulam in CRLMC No. 5072 of 2015.
R. Basant, Sr. Adv., Raghenth Basant, Senthil Jagadeesan, Manu
B Krishnan, Ms. Roopali Lakhotia, Advs. for the Appellants.
Haris Beeran, Mustaq Salim, Azhar Asees, Sayid Marzook Bafaki,
Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Advs. for the
Respondents.

C The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
1. The present appeal1 was heard finally, with the consent of
counsel for parties. The appellants are aggrieved by the judgment of the
Kerala High Court2 rejecting their petition under Section 482, Criminal
D Procedure Code, 1973 (hereafter “Cr. PC”). They had, through those
proceedings, sought a direction to quash a criminal complaint instituted
against them.
I
2. The appellants urge that one P.M. Mammu Haji leased two
E 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
F 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/
G 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,
1
Crl. A. No. 309/2023.
H 2
Dated 03.03.2016 in Crl. MC No. 5072/2015.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 551
ANR. [S. RAVINDRA BHAT, J.]

the rent for the premises was increased, and a Rent Enhancement Deed A
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
B
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
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/ C
2006) was filed before the Wakf Tribunal against the appellant firm’s
manager, for its eviction. This was decreed; but in revision proceedings4,
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. D
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 preferredthe suit and contended that the two, i.e.,wakf and
trust could not co-exist because awakf creates a dedication in favour of E
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. A Division Bench of thecourt held6 the suit maintainable
before the tribunal. However, on the question of the plaintiff’s competence F
to seek injunction (before the tribunal)regarding specific tenanted
properties, thecourt 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 G
Code of Civil Procedure.
3
dated 16.05.2005
4
CRP No. 106/2008, decided on 14.10.2008.
5
in CRP (Wakf) No. 375/2012.
6
By order dated 05.08.2013, also reported as Norman Printing Bureau v PS Mamman
Haji Wakf Trust 2013 (4) KLT 606. H
552 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 6. During the pendency of the suit, the Wakf Act, 1995, was
amended, with effect from 01.11.2013. Two new provisions were added.
One was the definition of “encroacher” [Section 3 (ee)]:
“‘encroacher’ means any person or institution, public or
private, occupying wakf property, in whole or part, without
B 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 “Board” was defined as follows: [Section 3 (c)]:
“c) “Board” means a Board of Waqf established under sub-
C section (1), or as the case may be, under sub-section (2) of
section 13 and shall include a common Waqf Board
established under section 106"
Some of the new provisions, inter alia, inserted by the
amendment- including Section 52A and Section 54, read as follows:
D
“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
E 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.
F
(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
G 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.

H ************** *************
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 553
ANR. [S. RAVINDRA BHAT, J.]

54. Removal of encroachment from waqf property.—(1) A
Whenever the Chief Executive Officer considers whether on
receiving any complaint or on his own motion that there has
been an encroachment on any land, building, space or other
property which is 1 [waqf] property and, which has been
registered as such under this Act, he shall cause to be served
B
upon the encroacher a notice specifying the particulars of
the encroachment and calling upon him to show cause before
a date to be specified in such notice, as to why an order
requiring him to remove the encroachment before the date so
specified should not be made and shall also send a copy of
such notice to the concerned mutawalli. C
(2) The notice referred to in sub-section (1) shall be served
in such manner as may be prescribed.
(3) If, after considering the objections, received during the
period specified in the notice, and after conducting an inquiry
in such manner as may be prescribed, the Chief Executive D
Officer is satisfied that the property in question is waqf
property and that there has been an encroachment on any
suchwaqf property, he may, make an application to the
Tribunal for grant of order of eviction for removing] such
encroachment and deliver possession of the land, building, E
space or other property encroached upon to the mutawalli of
the waqf.
(4) The Tribunal, upon receipt of such application from the
Chief Executive Officer, for reasons to be recorded therein,
make an order of eviction directing that the waqf property F
shall be vacated by all persons who may be in occupation
thereof or any part thereof, and cause a copy of the order to
be affixed on the outer door or some other conspicuous part
of the waqf property:
Provided that the Tribunal may before making an order of G
eviction, give an opportunity of being heard to the person
against whom the application for eviction has been made by
the Chief Executive Officer.
(5) If any person refuses or fails to comply with the order of
eviction within forty-five days from the date of affixture of
H
554 SUPREME COURT REPORTS [2023] 4 S.C.R.

A the order under sub-section (2), the Chief Executive Officer
or any other person duly authorised by him in this behalf
may evict that person from, and take possession of, the waqf
property.”
7. The amendment, to the Wakf Act, in 2013, came into effect by
B virtue of Section 1 (2) [“It shall come into force on such date as the
Central Government may, by notification in the Official Gazette,
appoint”] on 01.11.2013. As mentioned earlier, as on that date, the civil
proceedings initiated for eviction of the appellants were pending. While
so, a criminal complaint7 was filed before the Court of the Judicial
Magistrate, First Class (“JMFC”) Kozhikode, alleging that the appellants
C were encroachers and seeking their prosecution under Section 52A.
The appellants alleged that they continued to pay the rent, in accordance
with the decree of the District Judge, in their interpleader suit, i.e., CS
147/2001. The appellants preferred a petition under Section 482 of the
Cr. PC before the Kerala High Court alleging that they could not be
D treated as “encroachers” and were lawful occupants, whose eviction
was sought, in civil proceedings, and seeking quashing of those
proceedings. By the impugned order, the High Court rejected the petition.
8. In the impugned order, the High Court, after extracting the
definition of “encroacher” and noticing Section 52A, held:
E “4. When the tenancy has been terminated by the Board in
this particular case, the petitioners have become ‘encroacher’
within the meaning of Section 3(ee) of the Act. In such case,
the offence under Section 52A(1) can be attracted, if its
ingredients are proved. As per Section 52A (3) of the Act, no
F 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. Therefore,
this is not a matter wherein an investigation by the police is
called for. Cognizance can be taken only on a complaint by
the Board or any officer duly authorised by the State
G Government in that behalf. Here, a complaint has been filed
by the Kerala State Wakf Board represented by its authorised
officer. Presently, there is absolutely nothing to have a
premature termination of the prosecution proceedings against
the petitioners.”
H 7
ST No. 369/2015 dated 08.05.2013
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 555
ANR. [S. RAVINDRA BHAT, J.]

II A
9. Mr. R. Basant, learned senior counsel argued that it is a
fundamentalprinciple of criminal jurisprudence that penal provisions
cannot be applied with retrospective effect. The newly inserted provision,
i.e., Section 52A makes “taking possession of waqf properties”a
punishable offence. However, in this case, possession was taken in 1916, B
i.e., concededly much before the enactment of the Wakf Act and the
amendment. Accordingly, the newly inserted provision would not apply
to the facts of this case.
10. It was argued that Parliament never intended that those who
held properties under prior leases and arrangements, upon their expiry, C
were to be treated as “encroachers”. Learned counsel contended that
aside from the fact that the amendment cannot be construed as operating
retrospectively, the respondents cannot validly contend that those who
were in possession and occupation of the premises, as tenants for a
century became encroachers, upon enactment of the 2013 Act. Counsel
pointed out that the provision which enables the Wakf Board to deal D
with encroachers, is Section 54; it provides for eviction. No proceedings
were taken out against the appellants, who were straightaway sought to
be dealt with as encroachers and prosecuted. Learned counsel relied
upon Article 20 (1) of the Constitution of India and submitted that the
appellants’ conduct cannot be treated as an offence, even if Section E
52A were to be applicable. To uphold the respondent’s move would
directly violate the appellants’ rights under Article 20 (1).
11. Mr. Harris Beeran, learned counsel for the respondent, relied
upon the statement of objects and reasons of the amendment to the
Wakf Act of 2013. He placed emphasis on the rationale behind inclusion F
of Section 52A, that is to declare illegal holding and occupation of lands
as criminal offence. As far as the appellants’ argument regarding the
retrospective application of the provision is concerned, counsel relied on
Securities & Exchange Board of India v. Ajay Agarwal 8(hereafter
“Ajay Agarwal”) and Mohan Lal v. State of Rajasthan9 to urge that
since the appellantsare still in possession of the property, the amendment G
applies to them.

8
(2010) 3 SCR 70.
9
(2015) 6 SCC 222. H
556 SUPREME COURT REPORTS [2023] 4 S.C.R.

A 12. It was urged by the respondents that the premises were leased
to the appellants without obtaining prior sanction of the Board on
15.09.1973 for a period of 11 months by the then Managing Trustee
Mr. K. V. Kunhammed Koya who was later removed by the Board as
per the order in the proceedings Number 2/1976 dated 09.09.1978 due
to misfeasance and malfeasance. The accused have been conducting a
B
business concern,”Norman Printing Bureau”, in the waqf building for
the last more than 40 years without any right tocontinue in it. As per
Section 56 of the Waqf Act, 1995, the Mutawalli/ Managing Trustee of
waqf has no authority to leaseout the building without obtaining prior
sanction of the Board.
C 13. Learned counsel submitted that in view of Section 472 Cr.PC,
the continued possession of the appellants constituted a continuing
offence. Regardless of previous occupation, once the penal provision
became part of law, under the 2013 amendment, the appellants’ conduct
stood exposed to the risk of criminal prosecution. In such circumstances,
D the reliance on Article 20 (1) is misplaced.
III
14. The Wakf Act, 1954 was a precursor to the enactment of the
Wakf Act, 1995. This court explained the scheme of the 1995 Act in
Ramesh Gobindram (Dead) through L.Rs. v Sugra Humayun Mirza
E Wakf 10 as
“Wakfs and matters relating thereto were for a long time
governed by the Wakf Act, 1954. The need for a fresh
legislation on the subject was, however, felt because of the
deficiencies noticed in the working of the said earlier
F enactment especially those governing the Wakf Boards, their
power of superintendence and control over the management
of individual wakfs. Repeated amendments to the 1954 Act,
having failed to provide effective answers to the questions
that kept arising for consideration, the Parliament had to
G bring a comprehensive legislation in the form of Wakf Act
1995 for better administration of wakfs and matters connected
therewith or incidental thereto.
Chapter I of the 1995 Act deals with Preliminaries like
definitions, title, extent and commencement and application
10
H 2010 (10) SCR 945.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 557
ANR. [S. RAVINDRA BHAT, J.]

of this Act. Chapter II provides for preliminary survey of A
wakfs, publication of list of wakfs, disputes regarding wakfs
and also the powers of the Tribunal to determine such disputes.
Chapter III deals with Central Wakf Council while Chapter
IV deals with establishment of Boards and their functions.
Chapter V, VI and VII regulate the registration of Wakfs and
B
maintenance of accounts thereof and the finances of the Wakf
Board. Chapter VIII, with which the controversy at hand is
more intimately connected deals with judicial proceedings
and, inter alia, provides for constitution of tribunals and
adjudication of disputes by them as well as exclusion of
jurisdiction of Civil Courts. Chapter IX is a miscellaneous C
chapter that confers power on the Central Government to
regulate the secular activities of wakfs and empowers the State
Government to issue directions apart from other provisions
like establishment and reorganization and establishment of
boards.”
D
15. The appellants contend that their continued occupation and
repeated yet unsuccessful attempts by the respondents to oust them
from possessiondo not render their continuance in the premises any less
lawful and that the amendment of 2013 cannot be construed as operating
retrospectively; else, it would transgress their right under Article 20 (1)
of the Constitution. The respondents contend that this is not an instance E
of retrospective law but that the conduct (of continuing to occupy the
premises after being asked to vacate) amounts to a continuing offence.
They also rely on the statement of objects and reasons to the 2013
amendment and the ratio in Ajay Agarwal (supra)to urge that the
amendment is not violative of Article 20 (1). The Statement of Objects F
and Reasons to the amendment (of 2013) is extracted below:
“The Wakf Act, 1995, [which repealed and replaced the Wakf
(Amendment) Act, 1984] came into force on the 1st day of
January, 1996. The Act provides for the better administration
of auqaf and for matters connected therewith or incidental G
thereto. However, over the years of the working of the Act,
there has been a widespread feeling that the Act has not proved
effective enough in improving the administration of auqaf.
2. The Prime Minister’s High Level Committee for Preparation
of Report on Social, Economic and Educational Status of the H
558 SUPREME COURT REPORTS [2023] 4 S.C.R.

A Muslim Community of India (also known as Sachar
Committee) in its Report submitted to the Prime Minister on
the 17th November, 2006 considered the aforementioned issue
and suggested certain amendments to the Act relating to
women’s representation, review of the composition of the
Central Wakf Council and the State Wakf Boards, a stringent
B
and more effective approach to countering encroachments of
Waqf properties and other matters. The Committee stressed
the need for setting up of a National Waqf Development
Corporation and State Waqf Development Corporations so
as to facilitate proper utilization of valuable waqf properties
C for the objectives intended. The Committee recommended that
the Act should be amended so that the State Waqf Boards
become effective and are empowered to properly deal with
the removal of encroachments of waqf properties. It also
recommended to amend the Act so that the Waqf Tribunal will
be manned by a full time Presiding Officer appointed
D
exclusively for waqf properties. The Joint Parliamentary
Committee on Waqf in its Third Report presented to the Rajya
Sabha on the 4th March, 2008 made recommendations for a
wide range of amendments relating to time bound survey of
waqf properties, prevention and removal of encroachments,
E making the Central Waqf Council a more effective and
meaningful body, provisions for development of waqf
properties, etc. In its Ninth Report presented to the Rajya
Sabha on the 23rd October, 2008, the Joint Parliamentary
Committee reconsidered certain issues. The recommendations
of the Joint Parliamentary Committee on Waqf were
F
considered by the Central Waqf Council. The various issues
and the need for amendments to the Act have also been
considered in consultation with other stakeholders such as
the AllIndia Muslim Personal Law Board, representatives of
the State Governments and the Chairmen and the Chief
G Executive Officers of State Waqf Boards.”
16. In Ajay Agarwal (supra), the aggrieved party was not held
guilty of committing any offence. He was also not subjected to any
penalty. He was restrained by an order for a period of five years from
associating with any corporate body in accessing the securities market;he
H had also been prohibited from buying, selling or dealing in securities for
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 559
ANR. [S. RAVINDRA BHAT, J.]

five years. The court relied on the definition of “offence” under the A
General Clauses Act, 1897 (i.e., any act or an omission made punishable
by any law for the time being in force). In view of this definition, a
limited suspension from dealing in securities for five years did not amount
to an “offence”. The court also relied on the definition of offence, under
Section 2 (n) Cr. PC:
B
“2. (n) ‘offence’ means any act or omission made punishable
by any law for the time being in force and includes any act in
respect of which a complaint may be made under Section 20
of the Cattle-Trespass Act, 1871 (1 of 1871);”
17. In the present case, there is no controversy that Section 52A C
is a penal provision; a person proceeded against faces the prospect, in
the event the charges are proved, of a prison sentence of up to two
years; the offence is cognisable and non-bailable, notwithstanding anything
to the contrary in Cr. PC [Section 52A (2)].
18. The injunction against punishing anyone for conduct which D
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 [Article 20 (1)11]. A Constitution
Bench of this court, in Rao Shiv Bahadur Singh v. State of Vindhya
Pradesh12 had explained the purport of Article 20 (1):
E
“This article in its broad import has been enacted to prohibit
convictions and sentences under ex post facto laws. The
principle underlying such prohibition has been elaborately
discussed and pointed out in the very learned judgment of
Justice Willes in the well-known case of Phillips v. Eyre
[(1870) 6 QBD 1, 23, 25] and also by the Supreme Court of F
U.S.A. in Calder v. Bull [3 Dallas 386 : 1 L Ed 648, 649]. In
the English case it is explained that ex post facto laws are
laws which voided and punished what had been lawful when
done. There can be no doubt as to the paramount importance
of the principle that such ex post facto laws, which G
11
Article 20 (1) reads as follows:
(1) 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.’’
12
1953 SCR 1188 @ 1198. H
560 SUPREME COURT REPORTS [2023] 4 S.C.R.

A retrospectively create offences and punish them are bad as
being highly inequitable and unjust.”
19. Speaking about the same provision, this court held in T.
Barai v. Henry Ah Hoe13 that:
“22. It is only retroactive criminal legislation that is prohibited
B under Article 20(1). The prohibition contained in Article 20(1)
is that 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 prohibits nor shall he be subjected
to a penalty greater than that which might have been inflicted
C under the law in force at the time of the commission of the
offence. It is quite clear that insofar as the Central Amendment
Act creates new offences or enhances punishment for a
particular type of offence no person can be convicted by such
ex post facto law nor can the enhanced punishment prescribed
by the amendment be applicable. But insofar as the Central
D Amendment Act reduces the punishment for an offence
punishable under Section 16(1)(a) of the Act, there is no
reason why the accused should not have the benefit of such
reduced punishment. The rule of beneficial construction
requires that even ex post facto law of such a type should be
E applied to mitigate the rigour of the law. The principle is based
both on sound reason and common sense. This finds support
in the following passage from Craies on Statute Law, 7th Edn.,
at pp. 388-89:
‘A retrospective statute is different from an ex post facto
F statute. “Every ex post facto law…” said Chase, J., in the
American case of Calder v. Bull [Calder v. Bull, 1 L Ed 648 :
3 US 386 (1798)]
“must necessarily be retrospective, but every retrospective law
is not an ex post facto law. Every law that takes away or
G impairs rights vested agreeably to existing laws is retrospective,
and is generally unjust and may be oppressive; it is a good
general rule that a law should have no retrospect, but in cases
in which the laws may justly and for the benefit of the
community and also of individuals relate to a time antecedent
13
H [1983] 1 SCR 905.
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 561
ANR. [S. RAVINDRA BHAT, J.]

to their commencement: as statutes of oblivion or of pardon. A
They are certainly retrospective, and literally both concerning
and after the facts committed. But I do not consider any law
ex post facto within the prohibition that mollifies the rigour
of the criminal law, but only those that create or aggravate
the crime, or increase the punishment or change the rules of
B
evidence for the purpose of conviction…. There is a great
and apparent difference between making an unlawful act
lawful and the making an innocent action criminal and
punishing it as a crime.” (L Ed p. 650)’”
20. In Kanaiyalal Chandulal Monim v. Indumati T. Potdar and
Another,14 this court had to decide whether a landlord had denied C
amenities which were enjoyed by his tenant, calling for his prosecution
under Section 24(1)(4) of the Bombay Rents Hotel and Lodging House
Rates Control Act 57 of 1947. The provision read as follows:
“24. (1) No landlord either himself or through any person
acting or purporting to act on his behalf shall without just or D
sufficient cause cut off or withhold any essential supply or
service enjoyed by the tenant in respect of the premises let to
him.”
Section 25 (4) enacted a punishment of up to three months
imprisonment, or both. The landlord resisted the prosecution on the ground E
that the amenity, i.e., the water supply had been disconnected to the
premises due to the default of the predecessor in title before he became
the owner. This was negatived, and he was concurrently convicted. By
an amendment in 1953, an explanation was added, which said that the
withholding supplies could be through acts or omissions. This court F
interpreted Section 24 as imposing an obligation (of providing the amenity)
in presenti, after coming into force of the enactment:
“Is it enough that this essential supply should have been
“enjoyed” by the tenant at any past time, however remote, or
that it should have been “enjoyed” at any time after the G
coming into effect of the Act? We are assuming for the purposes
of this decision that the first respondent was the tenant at all
material times. In our opinion, the Section makes it essential
that the particular essential supply should have been available
14
[1958] 1 SCR 1394. H
562 SUPREME COURT REPORTS [2023] 4 S.C.R.

A for the use of the tenant at some time when the Act was in
force. If, on the other hand, the Section were construed in the
sense that the supply should have been “enjoyed” at some
time in the remote past, that is, before the Act was enforced,
the act of the landlord, when it was committed, may not have
been penal; but the same act would become penal on the
B
coming into effect of the Act. In that sense, it would amount
to ex-post facto legislation, and we cannot accede to the
argument that such was the intention of the legislature — an
intention which would come within the prohibition of Article
20(1) of the Constitution.”
C 21. 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
D 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- having regard to the previous discussion-
that the dispute over the termination of their tenancy, resulted in their
E becoming “encroachers” after the amendment became effective?
22. In the considered view of this court, the expiry of leases, or
other arrangements, by efflux of time or their valid terminations, in the
past, cannot be construed (as broadly as suggested by the respondents)
to mean that such lessees become “encroachers”. Nor would past
F 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
G 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
H
P. V. NIDHISH & ORS. v. KERALA STATE WAKF BOARD & 563
ANR. [S. RAVINDRA BHAT, J.]

text of that provision forbids such an interpretation, and the authorities A
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
“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,
B
when the provision was enacted. That is to say 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 amendmentof 2013 came
into force, in physical possession and facing civil proceedings for eviction.
23. It is a matter of record that by an order dated 27.10.2020, the
Kerala High Court quashed the order of the CEO of the C
respondent15allowing 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, with the following directions:
“If the entity created by Mammu Haji is found to be a Wakf, D
the person in Management shall have the powers to terminate
the tenancy and shall be entitled to take proceedings under
the Wakf Act for eviction of a tenant, who after such
termination of tenancy, is deemed to be an encroacher. We
make it clear that we have not observed on the merits of the E
contentions of eitherparties. The issues have to be considered
in O.S. No. 22/2012.”
24. In view of the foregoing discussion, the impugned judgment
cannot be sustained; it is hereby set aside. The appeal is allowed but
without order on costs. F

Divya Pandey Appeal allowed.
(Assisted by : Roopanshi Virang, LCRA)

G

15
In CRP(Wakf) No. 150/2016. H