Summary
The Court rejected prosecution under section 52A of the Wakf Act for possession taken long before the 2013 amendment by tenants already facing civil eviction proceedings. Continued occupation did not convert the earlier taking of possession into the newly created offence. Retrospective penal application would offend Article 20(1). The High Court’s refusal to interfere was set aside without deciding the underlying tenancy and property disputes.
Issues
- Whether continued possession under an earlier disputed tenancy attracted section 52A after the 2013 amendment.
- Whether treating that possession as a continuing offence would violate Article 20(1).
Provisions considered
- Sections 3(ee) and 52A, as amended in 2013, Wakf Act, 1995Construed the penal provision prospectively and declined to treat the earlier possession in these circumstances as the newly created offence. (¶¶ 6, 17, 21, 22)
- Article 20(1), Constitution of IndiaApplied the prohibition on retrospective creation of criminal liability. (¶ 18-22)
Held
- Section 52A is penal and exposes an accused to imprisonment; the non-penal regulatory order considered in SEBI v. Ajay Agarwal was therefore distinguishable. Article 20(1) forbids making previously non-criminal conduct punishable retrospectively. (¶ 16-19)
- The appellants’ possession predated the creation of the wakf and the legislation; civil proceedings disputing their continued tenancy were already pending when the amendment commenced. Expiry or disputed termination of that earlier arrangement did not by itself justify their prosecution as encroachers under the new penal provision. (¶¶ 21, 22)
- The words concerning alienating, purchasing or taking possession could not cover the earlier taking merely because possession continued after enactment. No language invoked a continuing offence so as to sustain that construction; it would deprive the appellants of Article 20(1) protection. (¶ 22)
- The ruling addressed criminal exposure under the amendment. The Court noted the separate remand concerning the entity’s status, authority to terminate tenancy and eviction; it did not finally adjudicate those underlying civil issues. (¶¶ 23, 24)
Result
Appeal allowed without costs; the High Court judgment rejecting the challenge to the criminal complaint was set aside on the stated prospective-operation grounds.