No Prosecution For Possessing Waqf Property Without Sanction From Waqf Board If Possession Was Before Insertion Of S.52A Waqf Act: Kerala HC

Justice P.V.Kunhikrishnan thus quashed the proceedings initiated against the employees of the post office on finding that they were in possession of the property since 1999. 

“A perusal of the same would not show that a person who is in occupation of waqf property even prior to the insertion of Section 52A of the Act are liable to be prosecuted. Admittedly the Department of Posts were in possession of the property even prior to the insertion of Section 52A of the Act.”

The petitioners, post office employees were accused of committing an offence punishable under Section 52 A of the Waqf Act for illegally taking possession of Waqf property without obtaining prior sanction from the Waqf Board. The complaint was filed before the Magistrate Court and summons were also issued.

The petitioners submitted that the post office was in possession of the impugned property even before Section 52A was inserted in 2013.

The Court observed that the post office was using the property in question based on a lease agreement since 1999. The Court noted that the post office was issued with a notice declaring that their lease agreement was terminated and directed them to hand over the vacant possession of the property. Subsequently, the Court noted that Waqf Tribunal had issued an order directing the postal department to vacate the property within 45 days.

The Court observed that a complaint before the Magistrate Court was filed alleging the commission of an offence punishable under Section 52A of the Act. The Court further observed that Section 52A was inserted in the year 2013 only.

On examining Section 52A, the Court stated that the legislative intent behind Section 52A was to initiate prosecution for illegal alienation, purchase and alienation of property without prior sanction from the Waqf Board after the provision was inserted by amendment in the year 2013.

The Court observed that the post office had possession of the property since 1999 and thus they cannot be prosecuted under Section 52A of the Waqf Act. 

As such, the petition was allowed and proceedings against petitioners were quashed. 

Counsel for Petitioners: Advocate Suvin R Menon

Counsel for Respondents: Standing Counsels T P Sajid and Jamsheed Hafiz, Senior Public Prosecutor Renjith T R

Case Number: CRL.MC NO. 5601 OF 2018

Case Title: K Sukumaran v Kerala State Waqf Board

Citation: 2024 LiveLaw (Ker) 711