The Kerala High Court recently ruled that the 2013 amendment to the Waqf Act, which criminalises unauthorised occupation of Waqf property, does not apply retroactively. This decision arose from a case brought by the Kerala State Waqf Board against a post office that had been operating on Waqf land since 1999, well before the amendment's enactment.

The Waqf Board had filed a complaint against the Senior Superintendent of the Calicut Postal Division and the Sub Post Master of Marikunnu, alleging unauthorised use of the Waqf property. However, noting that the occupation began prior to the amendment, the High Court quashed the criminal proceedings against the postal officials, as the amendment could not be applied retroactively to actions taken before 2013.

The situation grew more complex when the CEO of the Waqf Board issued a notice alleging that the post office had encroached on Waqf's land. Consequently, the case was brought before the Waqf Tribunal, which ordered the post office to vacate the building within 45 days. Despite placing advertisements in newspapers, the post office could not find a suitable location to relocate.

Due to the lack of an alternative site, the Waqf Board sought legal action against the post office employees under the 2013 Waqf Amendment Act. In response, the post office appealed to the Kerala High Court, which clarified that the amendment did not apply retroactively, preventing legal action regarding occupation that began before the Act came into effect.

Justice PV Kunhikrishnan, while dismissing the criminal proceedings pending in a Kozhikode magisterial court, held that the 2013 amendment to the Waqf Act does not intend for individuals occupying Waqf property prior to the amendment to be subject to prosecution.

The 2013 amendment introduced Section 52A to the Act, making unauthorised occupation of Waqf property a criminal offence. The Waqf Board had filed a complaint against postal officials for not vacating the property, even after the Waqf Tribunal ordered them to do so in 2018. However, the High Court determined that prosecuting the officials was not legally sustainable.