The Kerala High Court has ruled that Section 52A of the Wakf Act cannot be applied with retrospective effect if there was prior possession of the property, that is before the insertion of Section 52A in 2013.

The court held there is no retrospective effect for the insertion of Section 52A in 2013 in the Waqf Act. The court held that there cannot be a prosecution under Section 52A of the Waqf Act for taking possession of Waqf property without prior sanction of the Waqf Board if there was prior possession of the property, that is before the insertion of Section 52A in 2013.

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A single bench of Justice P V Kunhikrishnan quashed the proceedings initiated against the employees of the post office on finding that they had 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 is liable to be prosecuted. Admittedly, the Department of Posts was in possession of the property even prior to the insertion of Section 52A of the Act,” the court said.

The petitioners, post office employees in Kozhikode, 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 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. It 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 the Waqf Tribunal had issued an order directing the postal department to vacate the property within 45 days.

The court observed that the post office had possession of the property since 1999 and thus the post office employees cannot be prosecuted under Section 52A of the Waqf Act. The court quashed the case against the Calicut Postal Division Senior Superintendent and Marikunnu Sub Postmaster.