Lessees cannot be construed as “encroachers”: Supreme Court
On April 28, the Supreme Court bench said that 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”. A two-judge bench of the Supreme Court was hearing the matter and said that “Nor would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description under Section 3 (ee) of the Wakf Act.” Justice Dipankar Datta and Justice S. Ravindra Bhat opined that “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 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 amendment of 2013 came into force, in physical possession and facing civil proceedings for eviction.”
In this case, the appellants urged that in 1916 one P.M. Mammu Haji leased two shop rooms, before the coming into force of the Wakf Act. “Norman Printing Bureau” was functioning on the premises and a partnership firm was later created, with one P.V. Sami as a partner. A civil suit 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 tribunal found in favor of the respondent/plaintiff, upon which the appellant approached the High Court. A Division Bench of the Court illustrated the suit maintainable before the tribunal. During the pendency of the suit, the Wakf Act of 1995, was amended and the civil proceedings initiated for eviction of the appellants were pending.
Further, a criminal complaint was filed before the Court of the Judicial Magistrate, First Class, alleging that the appellants were encroachers and seeking their prosecution. The appellants preferred a petition under Section 482 of the Cr. PC before the Kerala High Court alleging that they could not be 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. Aggrieved by the judgment and order, the matter was presented before the top Court. The SC bench set aside the impugned judgment and allowed the appeal.
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