Kerala High Court
N. Ansar vs The Kerala Waqf Board on 30 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.2279 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 2279 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.704 OF
2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
KARUNAGAPPALLY
PETITIONER/1ST ACCUSED:
M. ANSAR
AGED 61 YEARS, S/O. MUHAMMED SALI,
SHAJAHAN MANZIL, PADA SOUTH, KARUNAGAPPALLY,
KOLLAM-690 518.
BY ADV SRI.T.R.RAJAN
RESPONDENTS/COMPLAINANT & 2ND ACCUSED:
1 THE KERALA WAQF BOARD
REPRESENTED BY ITS AUTHORIZED OFFICER,
SRI. A. HABEEB, DIVISIONAL OFFICER, KERALA
STATE WAQF BOARD, POONTHI ROAD, KUMARAPURAM,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM,
PIN-695 011.
2 NAZAR
S/O. HAMEED KUNJU, VARAMBEL VEEDU,
S.V. MARKET P.O., AYANIVELIKULANGARA,
KARUNAGAPPALLY, PIN-690 573.
Crl.M.C. No.2279 of 2018
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BY ADV.:
SRI.RENJITH.T.R, SR.PP,
SRI.JAMSHEED HAFIZ, SC, KERALA STATE WAQF
BOARD
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 30.10.2024, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Crl.M.C. No.2279 of 2018
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P.V.KUNHIKRISHNAN, J.
---------------------------------------------
Crl.M.C. No.2279 of 2018
----------------------------------------------
Dated this the 30th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash
the proceedings in C.C. No.704/2015 on the file of the
Judicial First Class Magistrate Court, Karunagappally.
2. It is a prosecution initiated by the 1 st
respondent against the petitioner and another under
Section 52(A) of the Waqf Act, 1995. Petitioner is the
previous President of Karunagappally Muslim Jamaath,
Vadakkum Muri, Karunagappally, is the submission.
The case of the complainant is that, Karunagappally
Muslim Jamaath is a Waqf registered with the Kerala
State Waqf Board. It is the case of the 1 st respondent
that the Waqf by virtue of gift deed No.1482/1984 of
Karunagappally S.R.O. executed in favour of the Waqf
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and as per the terms of the Gift deed, the donor
Smt.Souda Beevi permanently dedicated the above
said property to the Almighty, for pious, religious, and
charitable purposes recognized by the Muslim Law.
Accordingly, a thaikkavu and a madrassa were put up
therein by the fund collected from the muslim public
and muslims in the locality are used to perform
namaskar five times a day and other religious prayers
besides imparting religious education to their children
in this property. Therefore, it is submitted that the
Ottathil thaikkavu and the property appurtenant
thereto is a Waqf property. It is stated in the complaint
that, since the above said property is under the Waqf,
the administration of the same is being done by the
first accused who is the petitioner herein.
3. On 11.01.2010, the first accused being the
President of the Waqf alienated 50 sq.mtr. equal to
1.25 cents of the above said Waqf property in favour of
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the second accused by executing an Exchange deed
No.101/2010 of Karunagappally S.R.O. without prior
sanction of the Board and the second accused is in
possession of the same. It is submitted that the
alienation of Waqf property without prior sanction of
the Board is an offence and punishable under Section
52A of the Waqf Act, 1995. The purchasing of Waqf
property without prior sanction of the Board is also an
offence and punishable under the section. Hence it is
alleged that the petitioner and the second accused
committed the above said offence.
4. Heard the learned counsel appearing for the
petitioner and the learned Standing Counsel appearing
for the 2nd respondent.
5. According to the petitioner, even if the entire
allegations are accepted, no offence is made out
against the petitioner. The short point raised by the
petitioner is that, Section 52A of the Waqf Act was
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inserted only in the year 2013 and the alleged transfer
was before the insertion of Section 52A in the Waqf
Act. Therefore, as on the date of the alleged act, even
if it is accepted, there can not be any prosecution
under Section 52A of the Waqf Act because as on that
date, Section 52A of the Waqf Act was not in the statue
book is the submission.
6. I think there is force in the above argument.
The admitted case is that the alienation was in the
year 2010. As on that date, Section 52A of the Waqf
Act was not in the statue book. Therefore, the
prosecution can be initiated only if an act is punishable
as on the date of occurrence. In this case, even if the
entire allegations are accepted as on the date of
alleged offence, the same is not an offence as on that
date. Hence criminal prosecution is not possible.
Therefore, on that short point this Criminal
Miscellaneous Case is to be allowed.
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Accordingly, this Criminal Miscellaneous Case is
allowed. All further proceedings against the petitioner
alone in C.C. No.704/2015 on the file of the Judicial
First Class Magistrate Court, Karunagappally are
quashed.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
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PETITIONER ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF COMPLAINT IN C.C.
NO. 704/2015 ON THE FILES OF THE
JUDICIAL FIRST CLASS MAGISTRATE
COURT, KARUNAGAPPALLY.
DATED 29.3.2014 OF THE ADMINISTRATOR
OF THE KERALA STATE WAQF BOARD.
ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED
21.1.2015 OF THE WAQF TRIBUNAL,
KOLLAM IN O.A. NO. 2/2014.
ANNEXURE A4 TRUE COPY OF THE ORDER DATED
7.12.2016 OF THE CHIEF EXECUTIVE
OFFICER OF THE KERALA STATE WAQF
BOARD.
ANNEXURE A5 TRUE COPY OF THE ORDER DATED
18.1.2017 OF THE CHIEF EXECUTIVE
OFFICER OF THE KERALA STATE WAQF
BOARD.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
