Karnataka High Court
Rifa-Hul-Muslimeen Educational Trust vs Karnataka State Of Board Of Auquaf on 27 May, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2025
R
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 11330 OF 2017 (GM-WAKF)
C/W
WRIT PETITION NO. 15313 OF 2020 (GM-WAKF)
WRIT PETITION NO. 3732 OF 2021 (GM-WAKF)
IN W.P.NO.11330/2017
BETWEEN
RIFA-HUL-MUSLIMEEN
EDUCATIONAL TRUST
UMAR KHAYAM ROAD,
EIDGHA TILAK NAGAR MYSORE
REPRESENTED BY ITS PRINCIPAL/HON.SECRETARY,
SRI TAJ MOHAMMED KHAN.
...PETITIONER
(BY SRI. L M CHIDANANDAYYA., ADVOCATE )
Digitally signed
by SHWETHA AND
RAGHAVENDRA
Location: HIGH
COURT OF KARNATAKA STATE OF BOARD OF AUQAF
KARNATAKA REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
CUNNINGHAM ROAD
BANGALORE - 560 052.
RESPONDENT
(BY SMT. S.R. ANURADHA., SR. ADVOCATE FOR
SRI. P.S. MALIPATIL., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS WHICH ULTIMATELY RESULTS IN PASSING THE
-2-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
ANNEXURE-A ORDER DATED 21.07.2016 BEARING NO.
KSBA/MSC/29/MYS/2016 PASSED BY THE RESPONDENT AND ETC.
IN W.P.NO.15313/2020
BETWEEN
RIFA-HUL-MUSLIMEEN
EDUCATIONAL TRUST
UMAR KHAYAM ROAD, EIDGHA,
TILAK NAGAR MYSORE
REPRESENTED BY ITS PRINCIPAL/HON.SECRETARY,
SRI TAJ MOHAMMED KHAN.
S/O LATE KHASIMKHAN
AGED ABOUT 73 YEARS
...PETITIONER
(BY SRI. L M CHIDANANDAYYA., ADVOCATE )
AND
1. KARNATAKA STATE OF BOARD OF AUQAF
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER
"DARUL AWKAF"
NO.6, CUNNINGHAM ROAD
BANGALORE - 560 052.
2. DISTRICT WAKF ADVISORY COMMITTEE
MYSURU,
REP BY ITS WAKF OFFICER,
NEW SAYYAJI ROAD,
MYSURU-570001
3. MR. TANVEER SAIT,
FORMER PRIMARY AND SECONDARY EDUCATION MINISTER
GOVERNMENT OF KARNATAKA
RESIDING AT NO. 532, 9TH MAIN,
UDAYAGIRI, MYSORE-570019
RESPONDENTS
(BY SMT. S.R. ANURADHA., SR. ADVOCATE FOR
SRI. P.S. MALIPATIL., ADVOCATE FOR R1 & R2;
NOTICE TO R3 IS H/S)
-3-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS WHICH ULTIMATELY RESULTS IN PASSING THE
ANNEXURE-A ORDER DATED 23.01.2018 BEARING NO.
KSBA/REG/09/MYS/2015-16 BY R1 AND ETC.
IN W.P.NO.3732/2021
BETWEEN
THE CANARA BANK
REP BY ITS CHIEF MANAGER
ASSET RECOVERY MANAGEMENT BRANCH-I
SPENCERS TOWER,
86 MG ROAD,
BENGALURU - 560 001.
...PETITIONER
(BY SRI. G. KRISHNAMURTHY SR. ADVOCATE FOR
SRI. SHASHIDHARA MR., ADVOCATE )
AND
1. THE ADMINISTRATOR
KARNATAKA STATE BOARD OF AUQAF
DURAL AUQAF
NO.6, CUNNINGHAM ROAD
BENGALURU - 560 002
2. CHIEF EXECUTIVE OFFICER
THE KARNATAKA STATE BOARD OF AUQAF
DURAL AUQAF, NO.6, CUNNINGHAM ROAD
BENGALURU - 560 002
3. WAQF OFFICER
DISTRICT WAQF ADVISORY COMMITTEE
NEW SAYYAJI RAO ROAD
MANDI MOHALLA, MYSORE - 570 001
4. M/S RIFAHULMUSLIMEEN EDUCATIONAL TRUST
REP BY ITS HON. SECRETARY
MR. TAJ MOHAMMED KHAN
FAROOQIA EDUCATIONAL COMPLEX
UMAR KHAYAM ROAD, EIDAGH
-4-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
THILAK NAGAR,MYSORE - 560 021
5. THE POLICE INSPECTOR
UDAYAGIRI POLICE STATION
MYSORE CITY-570019.
RESPONDENTS
(BY SRI. MAHANTESH SHETTAR., AGA FOR R5;
SRI. L.M. CHIDANANDAYYA., ADVOCATE FOR R4;
SMT. S.R. ANURADHA. SR. ADVOCATE FOR
SRI. P.S. MALI PATIL., ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 14.11.2017
IN NO. KSBA/REG/09/MYS/2015-16 PASSED BY THE RESPONDENT
NO.1 PRODUCED AS ANNEXURE-H AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 19.03.2025, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The petitioner in each of the above matters are
before this Court seeking the following reliefs:
W.P.No.11330/2017
a. Call for the record which ultimately results in
passing the Annexure-A order dated 21.07.2016
bearing No.KSBA/MSC/29/MYS/2016 passed by the
Respondent.
b. Issue an order, direction, writ in the nature of
Certiorari quashing the Annexure-A order dated
21.07.2016 bearing the No.
KSBA/MSC/29/MYS/2016 passed by the Respondent.
-5-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
c. Declare the claim of the value from the petitioner at
Rs. 24,00,25,316/- vide Annexure-A is illegal and
without the authority.
d. Issue such other reliefs which this Hon'ble Court may
deem fit in the facts and circumstances of the case,
including award of cost to the petitioners.
W.P.No.15313/2020
I. Call for the record which ultimately results in
passing the Annexure-A order dated 23.01.2018
bearing No.KSBA/REG/09/MYS/2015-16 passed by
the R1.
II. Issue an order, direction, writ in the nature of
Certiorari quashing the Annexure-A Certificate of
Registration dated 23.01.2018 bearing the No.
KSBA/REG/09/MYS/2015-16 passed by the R1.
III. Declare that the entire proceedings initiated by the
Respondent to declare the Schedule property as
Wakf property under Section 40 of the Wakf Act is
illegal and without the authority of law;
IV. Issue an order, direction, writ in the nature of
Mandamus directing the Respondents not to interfere
with the lawful possession and enjoyment of the
Schedule Property.
V. Issue such other relief or reliefs as this Hon'ble Court
may deem fit in the facts and circumstances of the
case including awarding exemplary cost on the
Respondent for abusing the provision of the Wakf
Act.
W.P.No.3732/2021
a. Issue a writ of Certiorari quashing the impugned
order dated 14.1.2017 in
-6-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
No.KSBA/REG/09/MYS/2015-16 passed by the
respondent no.1 produced as Annexure-H.
b. Issue a writ of certiorari quashing the Certificate of
Registration dated 23.01.2018 in number
KSBA/REG/09/MYS/2015-16 issued by R2 produced
as Annexure-J;
c. Issue a writ of certiorari quashing the letter/notice
dated 25.11.2020 No.KSBA/MSC/24/MYS/2020-21
produced as Annexure-G
d. Issue a writ of Certiorari quashing the letter dated
28.11.2020 bearing No. UGPS/CC?246/2020 issued
by R5 produced as Annexure-K.
e. Issue a writ of Certiorari quashing the letter dated
16.12.2020 bearing No. DWAC/21/MYS/78-79
issued by R3 produced as Annexure-L;
f. Pass any other order/direction as this Hon'ble Court
may deem fit to grant in the circumstances of the
case in the interest of justice.
2. The Petitioner in WP 11330/2017 and W.P. No.
15313/20 is the Rifa-hul-Muslimeen Education Trust
['Trust' for short]. The Petitioner in W.P. No.
3732/2021 is the Canara Bank.
FACTS:
3. One Ande Shah Vali Makan was a Waqf registered
under the Waqf Act, 1995 [hereinafter for brevity
referred to as 'Waqf']. The said Waqf owned a
-7-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
property measuring 1 acre 4 guntas in Mysore
city. One Sri. Azeez Sait is stated to have been the
Mutawalli of the said Waqf, appointed by the
Karnataka State Board of Waqf [hereinafter for
brevity referred to as 'Waqf Board']. Mr. Azeez Sait
was managing the affairs of the said Waqf.
4. There being communal violence in the city of Mysore,
the construction of the property owned by Ande Shah
Vali Makan was destroyed hence the State
Government decided to build a vegetable market at
that location as such a notification under Subsection
(1) of Section 4 of the Land Acquisition Act 1894 was
issued notifying for acquisition of the said property
standing in the name of Ande Shah Vali
Makan wherein the name of Sri. Azeez Sait was
shown as the Muthavali.
5. The Muthavali had agreed to such an acquisition.
Hence, the final notification under Subsection (1) of
-8-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Section 6 was issued. The Land Acquisition Officer
passed an award for a sum of Rs.9,82,627/.
6. Much prior to the acquisition, the said Azeez Sait had
established the Rifa-hul Muslimeen Educational
Society [hereinafter referred to as a 'Society'] for
educating poor Muslims in Mysore city since it was
desired by the members of the Society that it be
converted into a Trust to enable the starting of
various educational institutions. Accordingly, the said
Society was converted into the aforesaid Trust on
08.01.1985.
7. This Trust established various institutions for the
benefit of poor Muslim students. The compensation
amount received by Sri. Azeez Sait as Mutawalli was
initially granted as a loan to the aforesaid Trust and
subsequently, the same was converted into a
donation vide a letter dated 15.06.1996 of Sri. Azeez
Sait.
-9-
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
8. The Waqf Board objected to the said compensation
amount being given as a donation to the
Trust without prior approval of the Waqf Board, and
accordingly, a notice dated 12.01.1998 was
issued, which was replied to by Sri. Azeez
Sait. Thereafter, no action was taken by the Waqf
Board.
9. It is contended that the then Mutawalli of the Waqf
Board was inimically disposed towards the Trust and
as such, was targeting the Trust. It is stated that the
Trust had received the money from the Mutawalli as
a donation in the year 1995-96. Thereafter, the Waqf
Board did not take any action in relation thereto.
10. The said amount had been used for educating Muslim
children of Mysore city, at this stage, a notice came
to be issued by the Waqf Board on 21.07.2016 for
recovery of an amount of Rs.24,00,25,361/- alleging
that the value of the land of the Waqf measuring
1.04 acres which had been acquired and as regards
- 10 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
which compensation had been paid was Rs.53,900/-
per square foot and as such extrapolating the same it
was contended that the value of 1.04 acres is
Rs.24,00,25,361/- which is required to be paid by
the Trust. The Trust replied to the same on
02.08.2016, contending that there is no such amount
due by the Trust, that the calculation that was made
was not proper, and that the demand that had been
made earlier had not been acted upon.
11. It was contended that after keeping quiet for nearly
about 20 years, only upon the demise of Sri. Azeez
Sait, such a claim was made without any valid reason
for political vendetta and the same was barred by the
law of limitation.
12. The first notice having been issued in the year 1998
and not having been acted upon, the question of
issuance of the show cause notice on 21.07.2016
was completely belated. It is further stated that
- 11 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
there is no violation of any directions, and the
calculation of the amount to be paid was also denied.
13. It is contended that the land was acquired for the
Mysore City Corporation. The compensation amount
then paid was used for the education of poor Muslim
girls , and therefore, the Waqf Board was called upon
to go through all the documents, consider the same
from a proper perspective, and drop the issue once
and for all. Thereafter, the Waqf Board issued
another show cause notice dated 09.01.2017 to
deposit the said amount. It is challenging these
notices that the Trust is before this Court in W.P.
No.11330 of 2017.
14. Subsequent to the issuance of the said notices under
Section 40 of the Waqf Act as stated above, wherein
the Waqf Board had called upon the Trust to show
cause as to why the property of the Trust should not
be declared to be a Waqf property by contending that
the same is a Waqf property satisfying the
- 12 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
requirement of Section 3(r) of the Waqf Act
1995. The reply of the Trust not being acceptable, a
recovery notice had been issued on 21.07.2016,
proceedings were taken up under Section 40 of the
Waqf Act and an order passed by the Waqf
Board declaring an extent of 159.5 feet x 300.42 feet
in all measuring 47916.99 square feet to be a
Waqf and issued a certificate of registration on
23.01.2018 certifying that the said property is a
Waqf registered with the Waqf Board under Section
40 of the Waqf Act, 1995 under name and style of
'Ande Shah Vali Complex, Mahadevpura Main Road,
Udayagiri, Mysore City'. It is challenging the said
registration that the Trust is before this Court in W.P.
No. 15313 of 2020 seeking for the aforesaid relief.
15. W.P. No.3732 of 2021 has been filed by the Canara
Bank against the Waqf Board and the Trust as also
the Police Inspector. The Bank claims that the Trust
being the owner of a property bearing municipal
- 13 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Katha number A-1 to A-14 measuring east to west
500 feet, north to south 170 feet, having acquired
the same under lease cum sale agreement signed at
08.12.1980 from the Mysore City Improvement Trust
Board, a sale deed was executed in favour of the
Trust by the Mysore Urban Development Authority on
04.02.2000. The entire consideration for the
purchase was paid even before the acquisition of the
property of Ande Shah Vali Makan.
16. The Trust as far back as on 15.03.2000, applied to
the Bank for certain credit facilities by depositing the
original title deeds of the property for security and
availed a loan of Rs. 1,50,00,000 on 15.03.2000. The
said loan was enhanced from time to time and
reached to an extent of Rs.12.09 crores.
17. Since the loan became an NPA on 31.03.2011, the
Bank had initiated proceedings under the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002
- 14 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
['SARFAESI Act' for short], by issuing a demand
notice under Subsection (2) of Section 13 on
13.09.2011 causing a demand for a sum of
Rs.10,07,76,345/- along with future interest and
cost. The demand notice has been received by the
Trust, no payments having been made, a possession
notice under Subsection (4) of Section 13 was also
issued and symbolic possession was taken over.
18. The Trust, having approached the Bank, agreed to a
restructuring and rescheduling of the loan by reviving
the overdraft facilities and the term loans. In order to
service the loan, the Trust, which had earlier
deposited the original documents, executed a
registered Memorandum of deposit of title deeds on
26.06.2012.
19. However, the loan account of the Trust again became
an NPA as regards which the Bank filed the original
application, O.A. No. 683 of 2017 before the Debt
Recovery Tribunal, Bengaluru for recovery of a sum
- 15 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
of rupees 19,58,69,466. No payment having been
made, the Bank brought the property for sale by way
of an e-auction. The first sale scheduled in March
2020 failed on account of no interested buyers,
thereafter another notice came to be issued on
27.10.2020 notifying the auction sale on 30.11.2020
when an unconnected person had challenged the sale
notice by filing S.A. No.386 of 2020.
20. A letter was received by the Bank on 25.11.2020
from the Waqf Board intimating that the Trust is
required to pay Rs.24,00,25,316/- in lieu of the
compensation on account of the acquisition of the
land owned by Ande Shah Vali Makan. An alleged
enquiry had been conducted under Section 40 of the
Waqf Act and on 14.11.2017 the aforesaid property
measuring 47,916.99 sq.ft was declared as a Waqf
property and a certificate of registration was issued
on 23.01.2019 to that effect.
- 16 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
21. The Waqf Board directed the Bank to modify the e-
auction sale notification, restricting the claim to the
balance property after excluding the aforesaid land
registered as a Waqf. It is challenging this order
dated 14.11.2017 passed under Section 40 of the
Waqf Act and the registration certificate dated
23.01.2018, as well as certain other letters issued by
the Waqf Board that the Bank is before this Court in
W.P. No. 3732 of 2021.
22. Sri. L.M. Chidanandayya, the Learned Counsel
appearing for the Trust, would submit that:
22.1. The Trust has been targeted on account of
Respondent No.3 in W.P. No.15313 of 2020
wanting to take over the affairs of the Trust.
The Society had made an application as far
back as on 25.02.1974 for the grant of land,
which grant was made for a consideration of
Rs.18,000/- on 25.02.1974. The said amount of
Rs.18,000/- had been paid on 08.12.1980 to
- 17 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
the Mysore City Improvement Trust Board who
had in furtherance thereof executed a lease
cum sale agreement which is registered as
document number 3096 of 1980-81. Possession
of the property was handed over on
20.02.1981.
22.2. Thus, all these events have occurred even prior
to the acquisition of the land of Ande Shah Vali
Makan as regards which the preliminary
Notification under Subsection (1) of Section 4
had been issued on 10.11.1986. The final
Notification had been issued under Subsection
(1) of Section 6 on 25.04.1987 and an award
was passed on 14.01.1988, the compensation
amounts were paid to the Mutawalli Sri. Azeez
Sait only in the year 1989-90.
22.3. The cost of the land allotted/granted by the
MCITB being Rs.18,000/- which was paid in the
year 1980, on which basis a lease-cum-sale
- 18 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
agreement was registered. The compensation
amount received by Sri. Azeez Sait in the year
1989-90 and initially given as a loan to the
Trust in the year 1989-90 and subsequently
treated as a donation in the year 1996 had
nothing to do with the purchase of the said
land. None of the amounts which had been
given by Sri. Azeez Sait as a loan or donation to
the Trust, was used for the purchase of the
property.
22.4. The Waqf Board was fully aware of the loan
transaction between the Trust and Sri. Azeez
Sait and an objection in relation thereto was
raised after nearly 6 years on 12.06.1996,
which was replied to by Sri. Azeez Sait on
15.06.1996, wherein he had categorically
stated that the said amount has been treated
as a donation to the Trust.
- 19 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
22.5. On 12.10.1998, the Waqf Board had called
upon the Trust to refund the amount of
Rs.9,46,000/- paid by the Mutawalli in the year
1990 and it is only thereafter on 26.05.2016
that a show cause notice under Section 40 of
the Waqf Act had been issued.
22.6. He submits that firstly, the property was
acquired from the funds of the Trust, and
hence, the Waqf Board cannot have any claim
over the said land. Secondly, Sri. Azeez Sait
initially having made payment of a sum of
Rs.9,46,000/- as a loan but subsequently
treating the same as a donation, the Trust
having received the amount as a donation, no
claim can be made by the Waqf Board on the
amount donated by Sri. Azeez Sait.
22.7. Insofar as the demand made for a sum of
Rs.24,00,25,316/- he submits that firstly, no
amount is due. Secondly, the said amount is a
- 20 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
highly inflated amount by extrapolating the
current market value of the property for a
property which had been acquired in the year
1986. The acquisition of the property of Ande
Shah Wali Makan had been completed way back
in the year 1986, compensation having been
determined in the year 1988, paid in the year
1989-90, the said compensation amount was as
per the market value of the property as on that
date. The Waqf Board cannot today contend
that the value of the property is about 24
crores just to claim such compensation.
22.8. His submission is that no property can be
treated as a Waqf or declared as a Waqf
without following the procedure under Sections
4 and 5 of the Waqf Act, 1995. The Act laying
down the procedure which is required to be
followed, such procedure not having been
followed, the question of declaring the property
- 21 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
of the Trust as a Waqf property and registering
it as such would not arise.
22.9. There is no dedication, let alone permanent
dedication, made by anyone for the property to
be a Waqf. If at all, the Waqf Board can only
claim the amount that has been transferred by
Sri. Azeez Sait to the Trust as regards which
action is required to be taken under Section 76
of the Waqf Act, 1995. No proceedings could be
initiated under Section 40 to declare the
property of a third party to be a Waqf when it
was never permanently dedicated for such
purposes.
22.10. The Trust is engaged in the education sector,
has obtained loans from financial institutions
like the Canara Bank, and has been carrying
out educational activities for the last several
decades. The activities carried out by the Trust
would not come within the meaning of the Waqf
- 22 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
in terms of Subsection (r) of Section 3 of the
Waqf Act.
22.11. The Respondent-Waqf Board initially claimed a
refund of the aforesaid amount of
Rs.9,46,00,000/- and subsequently sought to
contend that the construction, which has been
put up of 11 shops in the premises is a Waqf
property and caused a demand for registration
of a property with the extent of 31 feet x 147
feet in favour of the Waqf Board. Thereafter the
Waqf Board has increased its demand to a sum
of Rs.24,00,25,316/- and in lieu thereof has
claimed an extent of 47,916 square feet.
22.12. The changing stance of the Waqf Board
indicates that the Board is not acting in a
proper and fair manner. The Board is acting at
the behest of someone else only to cause harm,
loss and injury to the Trust. Though certain
allegations have been made against
- 23 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Respondent No.3 in W.P. No.15313 of 2020, he
submits that the same has now been
established by the arguments advanced by the
Waqf Board in the matter, wherein the Waqf
Board has acted just on a letter written by the
said Respondent No.3 to the Waqf Board. The
actions of the Waqf Board are completely
misconceived and without any basis.
22.13. There are no powers under Section 40 of the
Waqf Act vested with the Waqf Board to declare
a private property as a Waqf property. The
manner in which the Waqf Board has acted is
completely illegal and therefore, he submits
that the petitions filed by the Trust are required
to be allowed. He also supports the case of
Canara Bank and submits that W.P. No.
3732/2021 is also required to be allowed.
23. Sri. G. Krishnamurthy, Learned Senior Counsel,
appearing for the Canara Bank reiterates the
- 24 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
submissions of Sri. L.M. Chidanandayya, learned
Counsel appearing for the Trust. He further submits
that:
23.1. The Bank had advanced loans on the basis of
title held by the Trust in respect of the
property, and there being a registered lease-
cum-sale agreement followed by a registered
sale deed.
23.2. He also reiterates that the entire consideration
towards the property was paid even before the
acquisition of the property belonging to Ande
Shah Vali Makan. The Bank, being satisfied with
the title of the Trust, had advanced monies,
and a memorandum of deposit of title deeds
was registered. A mortgage having been
created in favour of the Bank, he invokes the
principle of 'once a mortgage, always a
mortgage' to contend that until the dues of the
- 25 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Bank are settled, no one else can have any
claim over the said property.
23.3. He submits that even the proceedings under
Section 40 of the Waqf Act have proceeded
without any notice to the Bank. The Board,
being fully aware of the right of the Bank on
account of a registered mortgage deed, could
not have conducted such proceedings without
the issuance of a notice to the Bank. Be that as
it may, he submits that even otherwise, the
Board could not declare a private property as a
Waqf property. There are no powers vested
with the Waqf Board to direct the Bank not to
hold the auction. The Bank is entitled to initiate
auction proceedings for the properties which
have been mortgaged in favour of the Bank.
23.4. As regards the contentions of the
Waqf Board that the Bank has an alternative
and efficacious remedy, he submits that an
- 26 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
alternative and efficacious remedy is not a bar
when constitutional rights are involved. In this
regard, he relies upon the decision of the
Hon'ble Apex Court in Mariamma Roy v.
Indian Bank1, more particularly para no. 5
thereof, which is reproduced hereunder for easy
reference:
5. In our view, the High Court was not justified in
passing the impugned order on the aforesaid ground.
It is well settled that even if an alternative remedy
was available to an aggrieved party against a
particular order, but if it was open to such party to
move a writ application and the Court has the power
to entertain the same if it finds that while passing the
order there has been a violation of the principle of
natural justice. That being the position, in the present
case the appellant was not served with any notice
before passing the impugned order.
23.5. By relying on Mariamma Roy's case, he
submits that a constitutional court can entertain
a petition by exercising its power where there is
a violation of the principles of natural justice.
23.6. He relies upon the decision of the Hon'ble Apex
Court in Shiur Sakhar Karkhana(P) Ltd. vs.
1 (2009) 16 SCC 187
- 27 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
SBI2, more particularly para no. 5 thereof,
which is reproduced hereunder for easy
reference:
5. In light of this, in our considered opinion, the High
Court could have avoided to entertain the writ
petition against the order of the State Commission, in
view of the availability of an alternative and
efficacious remedy to the respondent. We may note
at this juncture that the presence of an alternative
and efficacious remedy is not an absolute bar on the
jurisdiction of the High Court under Article 226 of the
Constitution, and is a rule of discretion and self-
imposed limitation rather than that of law. However,
entertaining a writ petition in such a case may be
proper in certain circumstances, for instance when an
order has been passed in total violation of the
principles of natural justice, or has been passed
invoking repealed provisions (see CIT v. Chhabil Dass
Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC
603] ).
23.7. By relying on Shivur Sakhar Karkana and
Parvati Mitra's case, he submits that the
existence of the alternative or efficacious
remedy is not an absolute bar to the jurisdiction
of the High Court under Article 226. It is up to
the discretion of the Court to exercise its power
or not. There is no limitation on the exercise of
2 (2020) 19 SCC 592
- 28 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
the powers of the High Court under Article 226.
The existence of an alternative efficacious
remedy is only a self-imposed limitation by the
constitutional Court. Irrespective of the same,
he submits that the present case requires this
Court to exercise its extraordinary powers to
render justice to the Trust, as well as the Bank
against whom the Waqf Board has taken such
illegal actions.
23.8. He relies upon the decision of the Hon'ble Apex
Court in M/s Godrej Sara Lee vs The Excise
and Taxation Officer & Ors.3, more
particularly para no. 4 thereof, which is
reproduced hereunder for easy reference:
4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
conferred by Article 226 of the Constitution having
come across certain orders passed by the high courts
holding writ petitions as "not maintainable" merely
because the alternative remedy provided by the
relevant statutes has not been pursued by the parties
desirous of invocation of the writ jurisdiction.
The power to issue prerogative writs Under Article
226 is plenary in nature. Any limitation on the
3 Manu SC 0086-2023
- 29 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
exercise of such power must be traceable in the
Constitution itself. Profitable reference in this regard
may be made to Article 329 and ordainments of other
similarly worded articles in the Constitution. Article
226 does not, in terms, impose any limitation or
restraint on the exercise of power to issue writs.
While it is true that exercise of writ powers despite
availability of a remedy under the very statute which
has been invoked and has given rise to the action
impugned in the writ petition ought not to be made in
a routine manner, yet, the mere fact that the
Petitioner before the high Court, in a given case, has
not pursued the alternative remedy available to him/it
cannot mechanically be construed as a ground for its
dismissal. It is axiomatic that the high courts (bearing
in mind the facts of each particular case) have a
discretion whether to entertain a writ petition or not.
One of the self-imposed restrictions on the exercise of
power Under Article 226 that has evolved through
judicial precedents is that the high courts should
normally not entertain a writ petition, where an
effective and efficacious alternative remedy is
available. At the same time, it must be remembered
that mere availability of an alternative remedy of
appeal or revision, which the party invoking the
jurisdiction of the high Court Under Article 226 has
not pursued, would not oust the jurisdiction of the
high Court and render a writ petition "not
maintainable". In a long line of decisions, this Court
has made it clear that availability of an alternative
remedy does not operate as an absolute bar to the
"maintainability" of a writ petition and that the rule,
which requires a party to pursue the alternative
remedy provided by a statute, is a Rule of policy,
convenience and discretion rather than a Rule of law.
Though elementary, it needs to be restated that
"entertainability" and "maintainability" of a writ
petition are distinct concepts. The fine but real
distinction between the two ought not to be lost sight
of. The objection as to "maintainability" goes to the
root of the matter and if such objection were found to
be of substance, the courts would be rendered
incapable of even receiving the lis for adjudication.
On the other hand, the question of "entertainability"
is entirely within the realm of discretion of the high
- 30 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
courts, writ remedy being discretionary. A writ
petition despite being maintainable may not be
entertained by a high court for very many reasons or
relief could even be refused to the Petitioner, despite
setting up a sound legal point, if grant of the claimed
relief would not further public interest. Hence,
dismissal of a writ petition by a high court on the
ground that the Petitioner has not availed the
alternative remedy without, however, examining
whether an exceptional case has been made out for
such entertainment would not be proper.
23.9. By relying on Godrej Sara Lee's case, he
submits that the mere availability of an
alternative remedy would not disentitle a
person from invoking the jurisdiction of the
High Court under Article 226. What also needs
to be considered is the efficaciousness of the
same. His submission is that the exercise of
power by the Waqf Board being completely
illegal, the question of initiating a suit or a
proceeding or appeal before the Waqf Tribunal
would not render any justice to the Bank.
23.10. He relies upon the decision of the Hon'ble
Calcutta High Court in Asma Khatoon vs
- 31 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Board of Waqfs 20124, more particularly para
no. 15 thereof, which is reproduced hereunder
for easy reference:
From the definition of the Waqf it transpires that
"Waqf" means the permanent dedication by a person
professing Islam, of any moveable or immovable
prop- erty for any purpose recognised by the Muslim
law as pious, religions or charita- ble and includes-
1) A Waqf by user.
2) Grants recognised by the Muslim law as pious,
religious or charitable;
3) A Waqf-al-ulad to the extent to which the
property is dedicated for any purpose recognised by
muslim law as pious, religious or charitable.
Essentials of a valid Waqf are as follows:
i) Perpetuity
ii) Irrevocability
iii) Inalienability
23.11. By relying on Asma Khatoon's case, he
submits that a Waqf would require a permanent
dedication by a person professing Islam of any
movable or immovable property. In the present
case, there is no such dedication, let alone
permanent dedication. The dedication is
required to be explicit, cannot be implied,
4 (2013) 1 Cal LT 517
- 32 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
merely because an amount was transferred by
Sri. Azeez Sait, the Mutawalli of Ande Shah Vali
Makan, would not make the recipient a Waqf.
The Trust, or a property of the Trust therefore,
cannot be declared to be a Waqf.
23.12. He relies upon the decision of the Hon'ble
Punjab & Haryana High Court in Punjab Waqf
Board vs. Joint Development
Commissioner5, more particularly para no. 16
thereof, which is reproduced hereunder for easy
reference:
16. The case of the Petitioner is covered by the ratio
of the judgment of the Hon'ble Supreme Court in
Punjab Waqf Board v. Gram Panchayat, 2000 (2) PLJ
91. The said judgment deals with identical question of
law and facts and the judgment relied upon by the
Petitioner i.e. Sayyed Ali v. A.P. Waqf Board
Hyderabad, 1998 (2) PLJ 642 has been considered in
Punjab Waqf Board's case, 2000 (2) PLJ 91 (supara)
and, therefore, the said judgment relied upon by the
Petitioner is not applicable to the facts of the, presort
case.
23.13. By relying on Punjab Waqf Board's case, he
submits that the essentials of Subsection (r) of
5 2008 SCC online P&H 855
- 33 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Section 3 of the Waqf Act, 1995, are to be
fulfilled. Without the same being fulfilled, no
declaration as a Waqf could be made. He
submits that the action of the Waqf Board is not
an administrative one, but a quasi-judicial one.
Therefore, requiring the Waqf Board to comply
with the requirements thereof.
23.14. In this regard, he relies upon the decision of the
Hon'ble Apex Court in Indian National
Congress(I) vs. Institute of Social
Welfare6, more particularly para no. 25 and 27
thereof, which are reproduced hereunder for
easy reference:
25. Applying the aforesaid principle, we are of the
view that the presence of a lis or contest between the
contending parties before a statutory authority, in the
absence of any other attributes of a quasi-judicial
authority is sufficient to hold that such a statutory
authority is quasi-judicial authority. However, in the
absence of a lis before a statutory authority, the
authority would be quasi-judicial authority if it is
required to act judicially.
27. What distinguishes an administrative act from a
quasi-judicial act is, in the case of quasi-judicial
functions under the relevant law the statutory
6 (2002) 5 SCC 685
- 34 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
authority is required to act judicially. In other words,
where law requires that an authority before arriving
at a decision must make an enquiry, such a
requirement of law makes the authority a quasi-
judicial authority.
23.15. By relying on the Institute of Social
Welfare's case he submits that the statutory
law compels the Waqf Board to act as a quasi-
judicial authority, especially in the background
of having to hold an inquiry, this being the case
the Waqf Board in the instant case ought to
have acted as a quasi-judicial body and just an
administrative declaration of a property as
Waqf would not suffice.
23.16. He relies upon the decision of the Hon'ble Apex
Court in State of Andhra Pradesh vs A.P.
State Waqf Board and Ors.7, more
particularly para nos. 145 and 146 thereof,
which are reproduced hereunder for easy
reference:
7 Manu SC 155/2022
- 35 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
145. Thus, we find that the power of the Board to
investigate and determine the nature and extent of
Waqf is not purely an administrative function. Such
power has to be read along with Section 40 of the Act
which enjoins "a Waqf Board to collect information
regarding any property which it has reason to believe to
be Waqf property and to decide the question about the
nature of the property after making such inquiry as it
may deem fit." The power to determine under Section
32(2)(n) is the source of power but the manner of
exercising that power is contemplated under Section
40 of the 1995 Act. An inquiry is required to be
conducted if a Board on the basis of information
collected finds that the property in question is a Waqf
property. An order passed thereon is subject to appeal
before the Waqf Tribunal, after an inquiry required is
conducted in terms of sub- section (1) of Section 40.
Therefore, there cannot be any unilateral decision
without recording any reason that how and why the
property is included as a Waqf property. The finding of
the Waqf Board is final, subject to the right of appeal
under sub-section (2). Thus, any decision of the Board
is required to be as a reasoned order which could be
tested in appeal before the Waqf Tribunal.
146. Therefore, the Waqf Board has power to
determine the nature of the property as Waqf
under Section 32(2)(n) but after complying with the
procedure prescribed as contained in Section 40. Such
procedure categorically prescribes an inquiry to be
conducted. The conduct of inquiry pre-supposes
compliance of the principles of natural justice so as to
give opportunity of hearing to the affected parties. The
proceedings produced by the Waqf Board do not show
any inquiry conducted or any notice issued to either of
the affected parties. Primarily, two factors had led the
Waqf Board to issue the Errata notification, that is,
order of the Nazim Atiyat and the second survey report.
Both may be considered as material available with the
Waqf Board but in the absence of an inquiry conducted,
it cannot be said to be in accordance with the
procedure prescribed under Section 40 of the 1995 Act.
- 36 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
23.17. By relying on A.P. State Waqf Board's case,
he submits that the power of the Board to
investigate and determine the nature of a Waqf
is purely not an administrative function but
ought to be read with section 40 of the 1995
Act which mandates the Board to conduct an
inquiry and gather such information that raises
a reason to believe why a certain property may
be a Waqf. The conduct of inquiry is in line with
principles of natural justice, and in this regard,
the Board not having carried out these
statutory requirements, cannot take cover
under the guise of being an administrative
action.
23.18. He relies upon the decision in Nimmo vs.
Punjab Waqf Board8, more particularly para
no. 6 thereof which is reproduced hereunder for
easy reference:
8 2016 SCC online P&H 3252
- 37 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
6. I have heard the learned Counsel for the parties
and appraised the paper book and of the view that
there is merit and force in the submission of Mr.
Chadha, for, the jamabandies, referred above, do
indicate that the khasra number, in the year 1982-83
as per Ex.D1, was bifurcated in two sets of area, i.e.,
11 kanals 12 marlas each and in column No. 5, it has
been shown as Maqbuja Chamaran and Kutia Maiya
Bhagwan and in none of the column of possession,
property was dedicated to Islam or for the purpose as
indicated in the definition of Waqf Property and,
therefore, cannot be treated to be Waqf property. No
report of Survey Commissioner has been placed on
record, in essence there is no compliance of
provisions of Section 4 of 1995 Act. In other words,
Waqf Board has failed to prove on record that proper
procedure was followed before declaring the property
to be Waqf. Had there been any proper compliance,
the party in occupation ought to have been given
notice and right to file objections. Withholding of such
record would lead to irresistible conclusion that no
such procedure has been followed. Mere promulgation
of the Notification under Sections 5 of 1995 Act would
not include the property under the definition of Waqf.
This view of mine is supported by the judgment
rendered in Punjab Waqf Board v. Joint Development
Commissioner (supra). A stray entry "Ehle Islam"
during pre-consolidation would not fall within the
exception clause of Section 3(b) of the Act to form an
opinion that even if the property had ceased to exist
for period and still remain to be Waqf property. The
post consolidation, khasra number shows the
possession of aforementioned nature, much less in
few of the jamabandies, it has been shown as "Kutia
Maiya Bhagwan Da Bhawan". The expression "itself"
does not convey that it was dedicated to Ehle Islam.
All these facts have totally been ignored, much less
trial Court misdirected in misreading the evidence.
23.19. By placing reliance on Nimmo's case, his
submission is that there is a necessity for
- 38 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
proper compliance with the provisions of the
1995 Act, which require an enquiry after a
notice to be issued to that effect before
declaring a piece of land as Waqf. A stray entry
by way of notification would not satisfy the
definition of a Waqf, and the Respondent-Waqf
Board ought to have carried out such statutory
compliances.
23.20. He relies upon the decision in Salem Muslim
Burial Ground Protection Committee vs.
State of Tamil Nadu9 , more particularly para
nos. 24, 28, 29, 30, 31, 32 and 35 thereof,
which are reproduced hereunder for easy
reference:
24. Only two arguments were advanced by Mrs June
before us. The first is that once a Waqf is always a
Waqf and, therefore, mere non burial of the dead
bodies on the "suit land" over the last 60 years or so
would not alter its nature so as to confer any right
upon the respondent claimants much less that of
ryotwari patta in exercise of power under Section 19-A
of the Abolition Act; secondly, the claims of
respondent claimants in the suit land having been
dismissed by the ASO, Settlement Officer, Director of
9 (2023) 16 SCC 264
- 39 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Survey and Settlement, Board of Revenue and by the
High Court in writ jurisdiction, the Division Bench of
the High Court in exercise of its appellate power could
have either dismissed or allowed the writ appeals but
could not have directed for consideration of the claims
under Section 19-A of the Abolition Act that too while
dismissing the writ appeals.
28. In the case at hand, there is no iota of evidence
from the very inception as to any express dedication
of the suit land for any pious, religious or charitable
purpose by anyone professing Islam. Therefore, on the
admitted facts, the WaqfWaqf by dedication of the suit
land is ruled out.
29. The only issue, therefore, is whether the suit land
would constitute a Waqf by user as it was used as a
burial ground which practice has been stopped at least
for the last over 60 years since the year 1900 or 1867.
There is even no concrete evidence on record to prove
that the suit land prior to the year 1900 or 1867 was
actually being used as a burial ground (kabristan).
Therefore, the alleged use of the suit land as burial
ground prior to 1900 or 1867 is not sufficient to
establish a Waqf by user in the absence of evidence to
show that it was so used. Thus, it cannot constitute a
Waqf by user also. The alleged recording of the suit
land as a kabristan or as a burial ground is a
misnomer or a misconstruction inasmuch as the suit
land, if at all, came to be recorded as a rudrabhoomi
which denotes Hindu cremation ground and not a
burial ground or a kabristan. It was only Zamin Survey
No. 5105 or OTS No. 2253 (new TS No. 1) with two
tombs existing which alone was recorded as a burial
ground. The said land is specifically demarcated and
separated from the suit land. The said burial land had
already been handed over to the Waqf Board and its
recording as such would not impact upon the nature of
the suit land so as to constitute it to be a burial
ground or a kabristan. Therefore, the suit land was not
proved to be a Waqf land by long usage also. There is
no evidence to prove creation of a Waqf of the suit
land either by dedication or by usage.
30. Another limb of the argument is that the suit land
has been declared to be a Waqf property vide
- 40 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
Notification dated 29-4-1959. In this regard, it has to
be noted that such a declaration has to be in
consonance with the provisions of the Waqf Act, 1954
or the Waqf Act, 1995. Both the aforesaid Acts lay
down the procedure for issuing Notification declaring
any property as a Waqf.
31. The Waqf Act, 1954, which actually is relevant for
our purpose, provides that, first, a preliminary survey
of Waqfs has to be conducted and the Survey
Commission shall, after such inquiry as may be
deemed necessary, submit its report to the State
Government about certain factors enumerated therein
whereupon the State Government by a notification in
the Official Gazette direct for a second survey to be
conducted. Once the above procedure of survey is
completed and the disputes arising thereto have been
settled, on receipt of the report, the State Government
shall forward it to the Waqf Board. The Waqf Board on
examining the same shall publish the list of Waqfs in
existence with full particulars in the Official Gazette as
contemplated under Section 5 of the Act. Similar
provisions exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two
Acts would reveal that the Notification under Section 5
of both the Acts declaring the list of the Waqfs shall
only be published after completion of the process as
laid down under Section 4 of the above Acts, which
provides for two surveys, settlement of disputes
arising thereto and the submission of the report to the
State Government and to the Board. Therefore,
conducting of the surveys before declaring a property
a Waqf property is a sine qua non. In the case at
hand, there is no material or evidence on record that
before issuing Notification under Section 5 of the Waqf
Act, 1954, any procedure or the survey was conducted
as contemplated by Section 4 of the Act. In the
absence of such a material, the mere issuance of the
Notification under Section 5 of the Act would not
constitute a valid Waqf in respect of the suit land.
Therefore, the Notification dated 29-4-1959 is not a
conclusive proof of the fact that the suit land is a Waqf
property. It is for this reason probably that the
- 41 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
appellant Committee had never pressed the said
Notification into service up till 1999.
35. It may be noted that Waqf Board is a statutory
authority under the Waqf Act. Therefore, the Official
Gazette is bound to carry any notification at the
instance of the Waqf Board but nonetheless, the State
Government is not bound by such a publication of the
Notification published in the Official Gazette merely for
the reason that it has been so published. In State of
A.P. v. A.P. Waqf Board [State of A.P. v. A.P. Waqf
Board, (2022) 20 SCC 383 : 2022 SCC OnLine SC
159], this Court consisting of one of us (V.
Ramasubramanian, J. as a Member) held that the
publication of a notification in the Official Gazette has
a presumption of knowledge to the general public just
like an advertisement published in the newspaper but
such a notification published at the instance of the
Waqf Board in the State Gazette is not binding upon
the State Government. It means that the Notification,
if any, published in the Official Gazette at the behest
of the Waqf Act giving the lists of the Waqfs is not a
conclusive proof that a particular property is a Waqf
property especially, when no procedure as prescribed
under Section 4 of the Waqf Act has been followed in
issuing the same.
23.21. By relying on Salem Muslim Burial Ground's
case, he submits that any notification declaring
a property to be a Waqf shall only be done
upon the completion of two surveys, settlement
of disputes arising thereto and the submission
of a report to the State Government and to the
Board. Conducting a survey prior to such a
declaration is sine qua non. Any notification
- 42 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
published without the necessary compliance
would merely act as an advertisement in the
newspaper, not act as conclusive proof of the
same and would not in any measure be binding
upon the State Government or the impugned
landholder.
23.22. He relies upon the decision in Kolkata
Municipal Corporation vs. Bimal Kumar
Shah10 , more particularly para nos. 25, 26 and
27 thereof, which are reproduced hereunder for
easy reference:
25. The scheme of the Act makes it clear that Section
352 empowers the Municipal Commissioner to identify
the land required for the purpose of opening of public
street, square, park, etc. and under Section 537, the
Municipal Commissioner has to apply to the
Government to compulsorily acquire the land. Upon
such an application, the Government may, in its own
discretion, order proceedings to be taken for
acquiring the land. Section 352 is therefore, not the
power of acquisition. We, therefore, reject the
submission on behalf of the appellant Corporation
that Section 352 enables the Municipal Commissioner
to acquire land.
26. We will now deal with the other submission of Mr
Jaideep Gupta that there is also a provision for
compensation under Section 363 where land is
10 (2024) 10 SCC 533
- 43 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
acquired under Section 352. Insofar as Section 363
relating to payment of compensation is concerned,
the High Court has clarified that this provision relates
to payment of compensation upon an agreement and
not for compulsory acquisition. We are in agreement
with this finding of the High Court.
27. There is yet another aspect of the matter. Under
our constitutional scheme, compliance with a fair
procedure of law before depriving any person of his
immovable property is well entrenched. We are
examining this issue in the context of Section 352 of
the Act which is bereft of any procedure whatsoever
before compulsorily acquiring private property. Again,
assuming that Section 363 of the Act provides for
compensation, compulsory acquisition will still be
unconstitutional if proper procedure is not established
or followed before depriving a person of their right to
property. We find it compelling to clarify that a rather
undue emphasis is laid on provisions of compensation
to justify the power of compulsory acquisition, as if
compensation by itself is the complete procedure for
a valid acquisition.
23.23. By relying on Bimal Kumar Shah's case, he
submits that under the Indian Constitutional
scheme, compliance with a fair procedure of
law before depriving any person of their
immovable property is a well-entrenched
principle and practice, and hence the same
cannot be superseded as done by the Board in
the instant case.
- 44 -
NC: 2025:KHC:18402
WP No. 11330 of 2017
C/W WP No. 15313 of 2020
WP No. 3732 of 2021
HC-KAR
23.24. He relies upon the decision of the Hon'ble Court
in Smt. Chennamma vs. The Regional
Commissioner11, more particularly para nos.
15 and 16 thereof, which are reproduced
hereunder for easy reference:
15. It is in that background, when the Tahsildar has
deleted the name of the Petitioner and inserted the
name of the Waqf Board, the property cannot be said
to be the Waqf property merely by such insertion. The
enquiry being required to be made as aforesaid, the
same not having been made, it cannot now be
contended by the Waqf Board that there is a dispute of
the title as regards the property belonging to the Waqf
Board, requiring the Petitioner to approach the Waqf
Tribunal under Section 83 of the Act, that would have
been the case, if the name of the Waqf Board was
always found on the records and a new claim was
made by a third party.
16. In the present case, the claim is made by the
Waqf Board as regards a property which stands in the
name of a private party which would not make Section
83 of the Act applicable requiring the Petitioner to
approach the Waqf Tribunal. It is for the Waqf Board
to establish its title over the property as against a
private party which would not come within the purview
of Section 83 of the Act. Thus, the finding of the
Assistant Commissioner in this regard is completely
unsustainable. In that background I pass the
following:
ORDER
i. The Writ Petition is allowed.
ii. A Certiorari is issued, the impugned order bearing
No.SAM/KAM/DEVASTAN/12/2021-22 dated
- 45 -
NC: 2025:KHC:18402
HC-KAR
14.02.2022 passed by respondent No.3 at Annexure-M
is set aside.
iii. Mandamus is issued directing respondent No.4 to
delete the entry of respondent No.5 in column Nos.9
and 11 of the record of rights in respect of land of the
Petitioner bearing Sy.No.179/5 of Karadkal village,
Lingasugur Taluk, Raichur District and reinstate the
name of the Petitioner in the said revenue records
within sixty days from the date of receipt of certified
copy of this order.
iv. Liberty is, however, reserved to respondent No.4 to
cause a proper enquiry as afore observed in terms of
the Notification issued by respondent No.1- Regional
Commissioner and the direction issued by respondent
No.2 - Deputy Commissioner by issuing a show cause
notice, affording an opportunity to the Petitioner of
filing objections and being heard and thereafter, pass
necessary orders.
23.25. By relying on Chennamma's case, his
submission is that any insertion of the name of
the Waqf into the records without carrying out
a necessary inquiry is bad in law. If any such
insertion were to be made, it is the domain of
the Waqf/Waqf Board to establish title over the
property and not the landholder to approach
the Board under section 83. This section may
come into effect only if the title of the property
always stood in the name of the Waqf. In the
- 46 -
NC: 2025:KHC:18402
HC-KAR
instant case, no such record of the Waqf always
having held the title of the scheduled property
existing, the burden of proof lies on the Waqf
Board itself, which has not been discharged.
23.26. Based on the above, he submits that the writ
petition filed by the Bank is required to be
allowed, and the property must be declared not
to be Waqf property, entitling the Bank to
exercise its rights in relation thereto.
24. Smt. S.R. Anuradha, learned Senior Counsel
appearing for the Waqf Board would submit that,
24.1. It is undisputed that Ande Shah Vali Makan
owned certain lands which were acquired for
which compensation of Rs.9,82,627/- was
awarded, an amount of Rs.9,46,000/- having
been released. The same was received by the
Mutawalli, the Mutawalli had also established a
society by the name of Rifa-hul Muslimeen
Education Society for educating poor Muslims
- 47 -
NC: 2025:KHC:18402
HC-KAR
which came to be converted and registered as a
trust on 08.01.1985. The Trust, having
requested the Mutawalli of Ande Shah Vali
Makan for certain monies to be used for
education of poor Muslim girls, the said
Mutawalli had made payment of a sum of
Rs.9,46,000/- to the said Trust initially as a
loan and subsequently on 15.06.1996 he had
treated the loan as a donation to the Trust.
24.2. Her submission is that if the amount had been
treated as a loan, it is only then that the Waqf
Board could exercise powers under Section 76
of the Waqf Act and seek for return of the
money together with interest thereon from the
personal funds of the person by whom such
amount has been lent, or to recover the
possession of the property lent in contravention
of the provisions of the Act.
- 48 -
NC: 2025:KHC:18402
HC-KAR
24.3. Section 76 is hereunder reproduced for easy
reference:
76. Mutawalli not to lend or borrow moneys
without sanction.--(1) No mutawalli, Executive
Officer or other person in charge of the
administration of a 1[waqf] shall lend any money
belonging to the 1 [waqf] or any 1[waqf] property
or borrow any money for the purposes of the
1[waqf] except with the previous sanction of the
Board:
Provided that no such sanction is necessary if there
is an express provision in the deed of 1[Waqf] for
such borrowing or lending, as the case may be.
(2) The Board may, while according sanction,
specify any terms and conditions subject to which
the person referred to in sub-section (1) is
authorised by him to lend or borrow any money or
lend any other 1 [waqf] property.
(3) Where any money is lent or borrowed, or other
1[waqf] property is lent in contravention of the
provisions of this section, it shall be lawful for the
Chief Executive Officer,--
(a) to recover an amount equal to the amount which
has been so lent or borrowed, together with interest
due thereon, from the personal funds of the person
by whom such amount was lent or borrowed;
(b) to recover the possession of the 1[waqf]
property lent in contravention of the provisions of
this Act, from the person to whom it was lent, or
from persons who claim title to such property
through the person to whom such property was
lent.
24.4. By relying on Section 76 she submits that there
is an express prohibition on any Mutawalli,
- 49 -
NC: 2025:KHC:18402
HC-KAR
executive officer or any other person in charge
of the administration of the Waqf to lend any
money belonging to the Waqf or any Waqf
property or borrow any money for the purpose
of the Waqf except with the previous sanction
of the Board. This restriction being applicable to
the Mutawalli, the Mutawalli could not have lent
the aforesaid amount of Rs.9,46,000/- to the
Trust without the permission of the Waqf Board.
24.5. The lending having occurred in contravention of
Section 76, the Waqf Board could recover the
same in terms of Section 76. It is on that basis
that several correspondences were exchanged
between the Waqf Board and the Trust, where
an interest was claimed. However,
subsequently, since the Mutawalli had treated
the payment of the aforesaid amount as a
donation, the same would not come within the
purview of Section 76 of the Waqf Act; hence,
- 50 -
NC: 2025:KHC:18402
HC-KAR
the Board could not exercise powers under
Section 76 for recovery of the money.
24.6. The amount paid by the Mutawalli having been
treated as a donation, both the Mutawalli and
the Trust claiming that these amounts were
paid and received for the pious purpose of
educating poor Muslim girls, the said object
being a pious one, there is a deemed Waqf
created in respect of the said monies. These
monies had been used for the construction of a
building that had been let out, from which the
Trust had received income, and used for the
purpose of educating poor Muslim girls. The use
to which the amount donated had been put
being a pious purpose, the construction which
had been made by the Trust would enure to the
benefit of the Waqf and consequently the Waqf
Board. As such, the Waqf Board would be
- 51 -
NC: 2025:KHC:18402
HC-KAR
entitled to treat the said property as a Waqf
and for the handover of the said property.
24.7. The Waqf Board having discussed these
matters, having taken into consideration the
extent of the property which had been
acquired, namely 282 feet x 274 feet, viz., one
acre four guntas, taking into account that the
value of the property in the year 2016-17 was
Rs.53,900/-, has extrapolated the same to the
area of Ande Shah Vali Makan, by taking into
account the value of the property at Rs.
53,900/- per square meter and ascertained that
the value of the land of Ande Shah Vali Makan
would be Rs.24,00,25,315/-, and had rightly
caused upon the Trust to make payment of said
amount.
24.8. These amounts being due by the Trust on
account of the Mutawalli having made payment
of Rs.9,46,000/- being the entire compensation
- 52 -
NC: 2025:KHC:18402
HC-KAR
received as regards the acquisition of the
property of the Ande Shah Vali Makan Waqf.
The Waqf Board is entitled to the present value
as calculated in the year 2016-17 since such
amount would have to be expended to
purchase a similarly situated property. No fault
can be found in relation thereto.
24.9. She relies upon the Gazette notification dated
01.04.1965 to contend that Ande Shah Vali
Makan is a notified Waqf in terms of the said
Gazette notification and the said Waqf was the
owner of the property bearing municipal No.
3513 measuring 282 x 272 square feet.
24.10. Vide letter dated 22.01.2002, the District Waqf
Advisory Committee had taken into
consideration the letter of the Secretary of the
Trust dated 25.09.2002 stating that a shopping
complex of 11 shops had been constructed in
Udayagiri, Mysore and named it as Ande Shah
- 53 -
NC: 2025:KHC:18402
HC-KAR
Vali Complex and sought permission from the
Chief Executive Officer of the Waqf Board to
initiate proceedings against the Trust for
recovery of a sum of Rs.35,00,000/- or to
register the shopping complex under the Waqf
Act in the name of Ande Shah Vali Makan.
Thus, she submitted that the action on part of
the Waqf Board is not for recovery of money
alone, but for registration of a Waqf as regards
the property on which the construction had
been put up by making use of the donation
made by the Mutawalli of Ande Shah Vali
Makan.
24.11. She places reliance on the letter dated
02.04.2016 issued by the Secretary of the Trust
to contend that even the Trust has claimed that
the Mutawalli, who is also the president of the
Trust gave a loan/donation of the entire
- 54 -
NC: 2025:KHC:18402
HC-KAR
compensation received from the Mysore
Corporation.
24.12. She further places reliance on the statement
made in the said letter by the Secretary that
withdrawal or refund would prejudice the cause
of the Muslim community since the same has
been used for providing employment to a large
number of persons and education to the Muslim
community. Thus, she submits that even as per
the Secretary of the Trust, the monies have
been used for a pious purpose which satisfies
the requirement of the meaning of the Waqf
under Subsection (r) of Section 3 is reproduced
hereunder for easy reference:
3. Definitions.--In this Act, unless the context
otherwise requires,--
(a)xxx
(b)xxx
(r) "waqf" means the permanent dedication by any
person, of any movable or immovable property for
any purpose recognised by the Muslim law as pious,
religious or charitable and includes--
- 55 -
NC: 2025:KHC:18402
HC-KAR
(i) a waqf by user but such Waqf shall not cease to
be a waqf by reason only of the user having ceased
irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or
by any other name entered in a revenue record;
(iii) "grants", including mashrat-ul-khidmat for any
purpose recognised by the Muslim law as pious,
religious or charitable; and
(iv) a waqf-alal-aulad to the extent to which the
property is dedicated for any purpose recognised by
Muslim law as pious, religious or charitable,
provided when the line of succession fails, the
income of the Waqf shall be spent for education,
development, welfare and such other purposes as
recognised by Muslim law, and "waqif" means any
person making such dedication;]
24.13. By placing reliance on Subsection (r) of Section
3, she submits that the Mutawalli having
dedicated the amounts received as
compensation for the purposes recognised by
the Muslim law as pious religious or charitable,
any use of money received would constitute a
Waqf.
24.14. She places reliance on the letter of the former
Minister and Member of the Waqfs dated
14.11.2020, whereunder he had brought to the
- 56 -
NC: 2025:KHC:18402
HC-KAR
notice of the Chief Executive Officer of the Waqf
Board that a property which had been
developed by using the compensation amount
received towards the acquisition of land of Ande
Shah Vali Makhan had been mortgaged to
Canara Bank which was sought to be auctioned
by Canara Bank. These facts being established,
he had called upon the Waqf Board to take
necessary action by bringing to the notice of
the Chief Executive Officer that the actions of
Canara Bank had caused unrest amongst the
general public as a Waqf property had been
auctioned, which cannot be so done.
24.15. She relies upon the decision in Sayyed Ali vs.
A.P. Waqf Board, Hyderbad12, more
particularly para no. 13 thereof, which is
reproduced hereunder for easy reference:
13. Lastly, it was contended by the learned Counsel
for the appellant that once patta, under the Inams
12 (1998) 2 SCC 642
- 57 -
NC: 2025:KHC:18402
HC-KAR
Act, having been granted in favour of Mokhasadars,
it was not open to the High Court to hold that the
property was a Waqf property. In other words, the
argument seems to proceed on the basis that once
patta has been granted under the Inams Act to
Mokhasadars, the land has ceased to be a Waqf
property. It may be stated that a Waqf is a
permanent dedication of property for purposes
recognised by Muslim law as pious, religious or
charitable and the property having been found as
Waqf, Waqf would always retain its character as a
Waqf. In other words, once a Waqf always a Waqf
and the grant of patta in favour of Mokhasadar under
the Inams Act does not, in any manner, nullify the
earlier dedication made of the property constituting
the same as WaqfWaqf. After a Waqf has been
created, it continues to be so for all time to come
and further continues to be governed by the
provisions of the Waqf Act and a grant of patta in
favour of Mokhasadar does not affect the original
character of the Waqf property. We accordingly find
no substance in the last argument of the learned
Counsel for the appellant.
24.16. By relying on Sayyed Ali's case, she submits
that the principle 'once a Waqf, always a
Waqf' applies in this case. Once a Waqf is
created, it continues to be in operation for all
times to come and would be governed by the
provisions of Waqf Act. Any transaction done in
relation thereto would not affect the nature or
the rights of the Waqf, even if the same were to
be mortgaged by the Trust to Canara Bank,
- 58 -
NC: 2025:KHC:18402
HC-KAR
such mortgage would be subservient to the
rights of the Waqf Board inasmuch as a
property is a Waqf property and a mortgage
made would not take away the fact of the
property being a Waqf property.
24.17. She relies on the decision of the Hon'ble Apex
Court in Board of Waqf West Bengal v. Anis,
Fatma, Begum and another13, more
particularly para nos. 14 and 15 thereof, which
are reproduced hereunder for easy reference:
14.Thus, the Waqf Tribunal can decide all disputes,
questions or other matters relating to a Waqf or
Waqf property. The words "any dispute, question or
other matters relating to a Waqf or Waqf property"
are, in our opinion, words of very wide connotation.
Any dispute, question or other matters whatsoever
and in whatever manner which arises relating to a
Waqf or Waqf property can be decided by the Waqf
Tribunal. The word 'Waqf' has been defined in
Section 3 (r) of the Waqf Act, 1995 and hence once
the property is found to be a Waqf property as
defined in Section 3 (r), then any dispute, question
or other matter relating to it should be agitated
before the Waqf Tribunal.
15. Under Section 83 (5) of the Waqf Act, 1995 the
Tribunal has all powers of the Civil Court under the
Code of Civil Procedure, and hence it has also powers
under Order 39 Rules 1, 2 and 2A of the Code of Civil
16. Procedure to grant temporary injunctions and
- 59 -
NC: 2025:KHC:18402
HC-KAR
enforce such injunctions. Hence, a full-fledged
remedy is available to any party if there is any
dispute, question or other matter relating to a Waqf
or Waqf property.
24.18. By relying on Anis Fatma's case, she submits
that any dispute, question, or other matters
relating to a Waqf or Waqf property being very
wide in nature would have to be decided only
by the Waqf Tribunal; this Court would not
have any jurisdiction in the matter. If at all, the
petitioners are aggrieved by the actions taken
by the Waqf Board, they would have to agitate
their grievances before the Waqf Tribunal in
terms of Section 83 or the Waqf Act 1995.
24.19. She relies upon the decision of the Hon'ble
Apex Court in Rashid Wali Beg vs Fareed
Pindari and others14, more particularly para
nos. 52 and 53 thereof. She submits that the
Hon'ble Apex Court in Rashid Wali Beg's case
has considered all the relevant aspects in
- 60 -
NC: 2025:KHC:18402
HC-KAR
relation to para nos. 43, 52 and 53 thereof,
which are reproduced hereunder for easy
reference:
43. In sum and substance, the Act makes a reference,
to 3 types of remedies, namely that of a suit,
application or appeal before the Tribunal, in respect of
the following matters:
(i) Any question or dispute whether a property
specified as waqf property in the list of waqfs is a waqf
property or not [Sections 6(1) & 7(1)];
(ii) A question or dispute whether a waqf specified in
the list of waqfs is a Shia Waqf or Sunni Waqf [Sections
6(1) & 7(1)];
(iii) Challenge to the settlement of a scheme for
management of the waqf or any direction issued in
relation to such management (iv) Challenge to an order
for restitution/restoration of the property of the waqf or
an order for payment to the waqf of any amount
misappropriated or fraudulently retained by the
mutawalli [Section 33(4)];
(v) Conditional attachment of the property of a
mutawalli or any other person [Section 35(1)];
(vi) Challenge to the removal or dismissal of an
Executive Officer or member of the staff [Section
38(7)];
(vii) Application by the Board, seeking an order for
recovery of possession of a property earlier used for
religious purpose but later ceased to be used as such
[Section 39(3)];
(viii) Challenge to a direction issued by the Board to
any Trust or Society to get it registered [Section
40(4)];
(ix) Challenge to an order for recovery of money from
the mutawalli, as certified by the Auditor [Section
48(2)];
- 61 -
NC: 2025:KHC:18402
HC-KAR
(x) Challenge to an order for delivery of possession of a
property issued by the Collector [Section 52(4)];
(xi) Application by the Chief Executive Officer for the
removal of encroachment and for delivery of possession
of a waqf property (Section 54(3)];
(xii) Challenge to the removal of mutawalli from office
[Section 64(4)];
(xiii) Challenge to an order superseding the Committee
of Management [Section67(4)];
(xiv) Challenge to the removal of a member of the
Committee of Management [Section 67(6)];
(xv) Challenge to any scheme framed by the Board for
the administration of waqf, containing a provision for
the removal of the mutawalli and the appointment of
the person next in hereditary succession [Section
69(3)];
(xvi) Challenge to an order for recovery of contribution
payable by the waqf to the Board, from out of the
monies lying in a bank [Section 73(3)];
(xvii) any dispute, question or other matter relating to
a waqf {section 83(1)} (xviii) any dispute, question or
other matter relating to a waqf property {section
83(1)}
(xix) eviction of a tenant or determination of the rights
and obligations of lessor and lessee of waqf property
{section 83(1) after its amendment under Act 27 of
2013 }
(xx) Whenever a mutawalli fails to perform an act or
duty which he is liable to perform [Section 94].
52. We have already seen that it is not as though there
was no provision in the Waqf Act conferring jurisdiction
upon the Tribunal in respect of the waqf property. We
can break the first part of Section 83 into two limbs,
the first concerning the determination of any dispute,
question or other matter relating to a waqf and the
second, concerning the determination of any dispute,
- 62 -
NC: 2025:KHC:18402
HC-KAR
question or other matter relating to a waqf property.
After Amendment Act 27 of 2013, even the eviction of
a tenant or determination of the rights and obligation
of the lessor and lessee of such property, come within
the purview of the Tribunal. Though the proceedings
out of which the present appeal arises, were instituted
before the Amendment Act, the words "any dispute,
question or other matter relating to a waqf or waqf
property" are sufficient to cover any dispute, question
or other matter relating to a waqf property. This is why
Ramesh Gobindram was sought to be distinguished
both in Anis Fatma Begum and Pritpal Singh and such
distinction was taken note of in Akkode Jumayath Palli
Paripalana Committee. Additionally, this Court in Kiran
Devi, refused to apply the ratio of Ramesh Gobindram,
on the ground that the suit was originally instituted
before the Civil Court, but was later transferred to the
Waqf Tribunal and that after allowing the order of
transfer to attain finality, it was not open to them to
resurrect the issue through Ramesh Gobindram.
53. It is well settled that the court cannot do violence
to the express language of the statute. Section 83(1)
even as it stood before the amendment, provided for
the determination by the Tribunal, of any dispute,
question or other matter (i) relating to a waqf; and (ii)
relating to a waqf property. Therefore to say that the
Tribunal will have jurisdiction only if the subject
property is disputed to be a waqf property and not if it
is admitted to be a waqf property, is indigestible in the
teeth of Section 83(1).
24.20. By referring to Rashid Wali Beg's case, she
submits that any question or dispute whether a
property is a Waqf property or not would also
have to be decided by the Waqf Tribunal. An
order for delivery of possession or for recovery
- 63 -
NC: 2025:KHC:18402
HC-KAR
of money would also have to be decided by the
Waqf Tribunal, and hence, this Court would not
have any jurisdiction in the matter. The
Tribunal would have jurisdiction to determine
any dispute, question or other matter relating
to a Waqf, as well as to determine any dispute,
question or other matter relating to Waqf
property.
24.21. In the present matter, both these issues are
involved inasmuch as the construction of eleven
shops by making use of the monies received as
compensation and the construction put up
named as Ande Shah Vali Makan Complex
would prima facie establish that the same is a
Waqf. Any submission to the contrary would be
required to be agitated by the Trust and or the
Bank before the Waqf Tribunal and not before
this Court.
- 64 -
NC: 2025:KHC:18402
HC-KAR
24.22. She relies upon the decision of the Hon'ble Apex
Court in Syed Mohd. Salie Labbai vs. Mohd.
Hanifa15, more particularly para no. 39 thereof,
which is reproduced hereunder for easy
reference:
39. It would thus appear that in order to create a
valid dedication of a public nature, the following
conditions must be satisfied:
"(1) that the founder must declare his intention to
dedicate a property for the purpose of a mosque. No
particular form of declaration is necessary. The
declaration can be presumed from the conduct of the
founder either express or implied;
(2) that the founder must divest himself completely
from the ownership of the property. The divestment
can be inferred from the fact that he had delivered
possession to the mutawalli or an imam of the
mosque. Even if there is no actual delivery of
possession the mere fact that members of the
Mahomedan public are permitted to offer prayers
with azan and ikamat, the WaqfWaqf is complete and
irrevocable; and
(3) that the founder must make some sort of a
separate entrance to the mosque which may be used
by the public to enter the mosque."
As regards the adjuncts the law is that where a
mosque is built or dedicated for the public if any
additions or alterations, either structural or
otherwise, are made which are incidental to the
offering of prayers or for other religious purposes,
those constructions would be deemed to be
accretions to the mosque and the entire thing will
15 (1976) 4 SCC 780
- 65 -
NC: 2025:KHC:18402
HC-KAR
form one single unit so as to be a part of the
mosque.
24.23. By relying on Syed Mohd. Salie Labbai's
case, she submits that all the requirements for
dedication of a Waqf are satisfied in the present
matter. The monies which have been received
as compensation on account of the acquisition
of a Waqf property have been donated to the
Trust for the purpose of educating poor Muslim
students, which is a pious purpose.
24.24. She relies upon the decision of the Hon'ble Apex
Court in K. Venkatachalam vs. A.
Swamickan16, more particularly para no. 27
thereof, which is reproduced hereunder for easy
reference:
27. In view of the judgment of this Court in the case
of Election Commission of India v. Saka Venkata Rao
[(1953) 1 SCC 320 : AIR 1953 SC 210] it may be that
action under Article 192 could not be taken as the
disqualification which the appellant incurred was prior
to his election. Various decisions of this Court, which
have been referred to by the appellant that jurisdiction
16 (1999) 4 SCC 526
- 66 -
NC: 2025:KHC:18402
HC-KAR
of the High Court under Article 226 is barred
challenging the election of a returned candidate and
which we have noted above, do not appear to apply to
the case of the appellant now before us. Article 226 of
the Constitution is couched in the widest possible
terms and unless there is a clear bar to jurisdiction of
the High Court its powers under Article 226 of the
Constitution can be exercised when there is any act
which is against any provision of law or violative of
constitutional provisions and when recourse cannot be
had to the provisions of the Act for the appropriate
relief. In circumstances like the present one the bar of
Article 329(b) will not come into play when the case
falls under Articles 191 and 193 and the whole of the
election process is over. Consider the case where the
person elected is not a citizen of India. Would the
Court allow a foreign citizen to sit and vote in the
Legislative Assembly and not exercise jurisdiction
under Article 226 of the Constitution?
24.25. By relying on Venkatachalam's case, she
submits that even while exercising powers
under Article 226, the Court is constrained by
Section 83, inasmuch as there is a bar to the
jurisdiction to be exercised by the
Constitutional Court in view of a specific
provision made under Section 83. She submits
that under Section 40 of the Waqf Act, 1995,
the Board, after collecting information, if it has
reason to believe a property to be a Waqf
- 67 -
NC: 2025:KHC:18402
HC-KAR
property, may determine such a question and
pass necessary orders.
24.26. Section 40 is reproduced hereunder for easy
reference:
40. Decision if a property is 1[Waqf]
property.--(1) The Board may itself collect
information regarding any property which it has
reason to believe to be 1[waqf] property and if any
question arises whether a particular property is
1[waqf] property or not or whether a 1[waqf] is a
Sunni 1[waqf] or a Shia 1[waqf], it may, after
making such inquiry as it may deem fit, decide the
question.
(2) The decision of the Board on a question under
sub-section (1) shall, unless revoked or modified by
the Tribunal, be final.
(3) Where the Board has any reason to believe that
any property of any trust or Society registered in
pursuance of the Indian Trusts Act, 1882 (2 of 1882)
or under the Societies Registration Act, 1860 (21 of
1860) or under any other Act, is 1[waqf] property,
the Board may notwithstanding anything contained
in such Act, hold an inquiry in regard to such
property and if after such inquiry the Board is
satisfied that such property is 1[waqf] property, call
upon the Trust or Society, as the case may be, either
to register such property under this Act as 1[waqf]
property or show cause why such property should
not be so registered:
Provided that in all such cases, notice of the action
proposed to be taken under this sub-section shall be
given to the authority by whom the Trust or Society
had been registered.
(4) The Board shall, after duly considering such
cause as may be shown in pursuance of notice issued
under sub-section (3), pass such orders as it may
- 68 -
NC: 2025:KHC:18402
HC-KAR
think fit and the order so made by the Board, shall
be final, unless it is revoked or modified by a
Tribunal.
24.27. By relying on Section 40, she submits that
there is enough material on record to prima
facie come to a conclusion that the property,
namely Ande Shah Vali Makan Complex, is a
Waqf property, and the same has been declared
to be a Waqf. Since the said property on
demand has not been handed over, a demand
having been made for more than a year, money
equivalent thereof by the aforesaid calculation
taking into account the value of the property in
the year 2016-17 which demand for money has
been challenged in the present matter, which
cannot firstly be so challenged, since
declaration has been made by the Board that a
property is a Waqf property. In the alternative,
she submits that if there is any dispute in
relation thereto, the Trust and or the Bank
- 69 -
NC: 2025:KHC:18402
HC-KAR
would have to approach the Tribunal under
Section 83.
24.28. Based on all of the above, she submits that the
action taken by the Waqf Board is proper and
correct, does not require any interference at
the hands of this Court and the writ petitions
filed by the Trust and the Bank are required to
be dismissed.
25. Heard Sri. L.M. Chidanandayya, learned counsel
appearing for the petitioner-Trust in W.P. No.
11330/2107 and W.P. No. 15313/2020,
Sri.G.Krishnamurthy, learned Senior Counsel for Sri.
Shashidhara.M.R, learned counsel appearing for the
Bank in W.P. 3732/2017 and Ms.S.R.Anuradha,
learned Senior Counsel appearing for
Sri.P.S.Malipatil, the Respondent-Waqf in all the
above matters. Perused papers.
26. The points that would arise for the consideration of
this Court are:
- 70 -
NC: 2025:KHC:18402
HC-KAR
1. Does the dispute fall under the exclusive
jurisdiction of the Waqf Tribunal, or if it can
be entertained by a writ court under Article
226 of the Constitution?
2. Was the procedure under Sections 5 and 6 of
the Waqf Act, 1995 (including publication of
notification and objection mechanisms)
followed correctly?
3. Do disputed questions of fact (like title,
possession, and validity of Waqf entry)
require trial and evidence that cannot be
adjudicated in writ jurisdiction?
4. Whether an amount initially lent by the
Mutawalli to a third party and subsequently
classified as a donation would require the
exercise of powers under Section 76 of the
Waqf Act, 1995 or can the Waqf Board by
exercising powers under Section 40
determine that the use to which the
aforesaid donated amount had been put to
constitutes a Waqf property?
5. Whether the Board, having caused a demand
for the amounts due along with interest, is
barred from thereafter contending that due
to the use to which the amount has been put
to, there is a Waqf created and seek to
exercise powers under Section 40 to declare
such property as a Waqf property?
6. Whether any of the properties belonging to
the Trust can be said to be constituting a
Waqf under Subsection (R) of Section 3 of
the Waqf Act, 1995?
- 71 -
NC: 2025:KHC:18402
HC-KAR
7. Whether the different stands taken by the
Waqf Board initially for recovery of the
amounts along with interest, subsequently
claiming that the construction which has
been put up by using the said amount would
be a Waqf, and lastly, by making a demand
on the present market value of the property
of the Waqf acquired under the Land
Acquisition Act, 1894 is sustainable?
8. Can the demand notice issued by the Waqf
Board claiming a sum of Rs. 24,00,25,315/-
be said to be valid and sustainable?
9. What order?
27. I answer the above points as under:
28. Answer to Point No. 1: Does the dispute fall
under the exclusive jurisdiction of the Waqf
Tribunal, or if it can be entertained by a writ
Court under Article 226 of the Constitution of
India?
27.1. Ms. S.R. Anuradha, learned Senior Counsel, by
relying on Section 83 of the Waqf Act, 1995,
contends that the petitioners have an alternate,
adequate and efficacious remedy in terms of
their being entitled to approach the Waqf
- 72 -
NC: 2025:KHC:18402
HC-KAR
Tribunal, under Section 83 of the Waqf Act.
Section 83 of the Waqf Act is reproduced
hereunder for easy reference:
"83. Constitution of Tribunals, etc.--
(1)The State Government shall, by Notification
in the Official Gazette, constitute as many
Tribunals as it may think fit, for the determination
of any dispute, question or other matter relating
to a waqf or waqf property, eviction of a tenant or
determination of rights and obligations of the
lessor and the lessee of such property, under this
Act and define the local limits and jurisdiction of
such Tribunals.
(2)Any mutawalli person interested in a waqf
or any other person aggrieved by an order made
under this Act, or rules made thereunder, may
make an application within the time specified in
this Act or where no such time has been
specified, within such time as may be prescribed,
to the Tribunal for the determination of any
dispute, question or other matter relating to the
waqf.
(3)Where any application made under sub-
section (1) relates to any waqf property which
falls within the territorial limits of the jurisdiction
of two or more Tribunals, such application may be
made to the Tribunal within the local limits of
whose jurisdiction the mutawalli or any one of the
mutawallis of the waqf actually and voluntarily
resides, carries on business or personally works
for gain, and, where any such application is made
to the Tribunal aforesaid, the other Tribunal or
Tribunals having jurisdiction shall not entertain
- 73 -
NC: 2025:KHC:18402
HC-KAR
any application for the determination of such
dispute, question or other matter:
Provided that the State Government may, if it
is of opinion that it is expedient in the interest of
the waqf or any other person interested in the
waqf or the waqf property to transfer such
application to any other Tribunal having
jurisdiction for the determination of the dispute,
question or other matter relating to such waqf or
waqf property, transfer such application to any
other Tribunal having jurisdiction, and, on such
transfer, the Tribunal to which the application is
so transferred shall deal with the application from
the stage which was reached before the Tribunal
from which the application has been so
transferred, except where the Tribunal is of
opinion that it is necessary in the interest of
justice to deal with the application afresh.
(4)Every Tribunal shall consist of--
(a)one person, who shall be a member of the
State Judicial Service holding a rank, not below
that of a District, Sessions or Civil Judge, Class I,
who shall be the Chairman;
(b)one person, who shall be an officer from the
State Civil Services equivalent in rank to that of
the Additional District Magistrate, Member;
(c)one person having knowledge of Muslim law
and jurisprudence, Member; and the appointment
of every such person shall be made either by
name or by designation.
(4A)The terms and conditions of appointment
including the salaries and allowances payable to
the Chairman and other members other than
persons appointed as ex officio members shall be
such as may be prescribed.
- 74 -
NC: 2025:KHC:18402
HC-KAR
(5)The Tribunal shall be deemed to be a civil
court and shall have the same powers as may be
exercised by a civil court under the Code of Civil
Procedure, 1908 (5 of 1908), while trying a suit,
or executing a decree or order.
(6)Notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908), the
Tribunal shall follow such procedure as may be
prescribed.
(7)The decision of the Tribunal shall be final
and binding upon the parties to the application
and it shall have the force of a decree made by a
civil court.
(8)The execution of any decision of the
Tribunal shall be made by the civil court to which
such decision is sent for execution in accordance
with the provisions of the Code of Civil Procedure,
1908 (5 of 1908).
(9)No appeal shall lie against any decision or
order whether interim or otherwise, given or
made by the Tribunal:
Provided that a High Court may, on its own
motion or on the application of the Board or any
person aggrieved, call for and examine the
records relating to any dispute, question or other
matter which has been determined by the
Tribunal for the purpose of satisfying itself as to
the correctness, legality or propriety of such
determination and may confirm, reverse or
modify such determination or pass such other
order as it may think fit."
27.2. By relying on Section 83 of the Waqf Act, 1995,
she submits that a Tribunal has been
- 75 -
NC: 2025:KHC:18402
HC-KAR
specifically constituted under the Act for the
determination of any dispute, question or other
matter relating to a Waqf or a Waqf property,
including eviction of tenants or determination of
rights and obligation of the lessor and the
lessee. An application could be made to the
Tribunal to determine any dispute, question, or
other matter relating to the Waqf.
27.3. She also refers to Section 85 of the Waqf Act,
which is reproduced hereunder for easy
reference:
"85.Bar of jurisdiction of civil courts.- No suit or
other legal proceeding shall lie in any civil court,
revenue court and any other authority in respect of
any dispute, question or other matter relating to any
waqf, waqf property or other matter which is required
by or under this Act to be determined by a Tribunal."
27.4. By relying on Section 85 of the Waqf Act, she
submits that no suit or other legal proceedings
shall lie in any Civil Court, Revenue Court or
any other authority in respect to any dispute,
- 76 -
NC: 2025:KHC:18402
HC-KAR
question or other matter relating to the Waqf,
Waqf property or other matter which is required
by or under the Act to be determined by a
Tribunal.
27.5. She submits that reading of Sections 83 and 85
of the Waqf Act would make it categorical that
it is only a Tribunal which has jurisdiction, and
as a corollary, no Civil Court would have
jurisdiction over a matter as regards which the
Tribunal has jurisdiction. Thus, when a Civil
Court has no jurisdiction over a matter, it is
only the Tribunal which has jurisdiction over it,
her submission is that the writ Court would also
have no jurisdiction to decide the present
matter, inasmuch as what is in question is as
regards whether the property is a Waqf
property or not, and whether the petitioners are
required to make payment of the amount
demanded by the Waqf Board or not.
- 77 -
NC: 2025:KHC:18402
HC-KAR
27.6. In this regard, she has relied on Anis Fatma
Begum's case (supra) to contend that the Waqf
Tribunal, having powers of a Civil Court, the
petitioners ought to have approached the Waqf
Tribunal.
27.7. Reliance is also placed on the decision of the
Hon'ble Apex Court in Rashid Wali Beg's case
(supra) to contend that whether a property is a
Waqf property or not would have to be
determined by the Waqf Tribunal and an order
for delivery of possession or for recovery of
money would also have to be decided by the
Waqf Tribunal.
27.8. Reliance is also placed on K. Venkatachalam's
case (supra) to contend that the bar under
Sections 83 and 85 of the Waqf Act, would
apply even to proceedings under Article 226 of
the Constitution of India.
- 78 -
NC: 2025:KHC:18402
HC-KAR
27.9. To counter the same, Sri G. Krishnamurthy,
learned Senior Counsel, has relied on
Mariamma Roy's case (supra) to contend that
a Constitutional Court can entertain any
proceedings where there is a violation of the
principles of natural justice. The decision in
Shivur Sakhar Karkana's case (supra) that
even if there is an existence of an alternative or
efficacious remedy, the same would not be an
absolute bar under Article 226 of the
Constitution of India, and it would be for this
Court to take up the matter. The restriction
and/or limitation is only self-imposed. If this
Court were to come to a conclusion that it
needs to exercise the extraordinary jurisdiction,
this Court would be entitled to do so.
27.10. Reference has also been made to M/s. Godrej
Sara Lee's case (supra) to contend that an
alternative remedy would not disentitle a
- 79 -
NC: 2025:KHC:18402
HC-KAR
person from invoking the jurisdiction of a High
Court under Article 226 of the Constitution of
India.
27.11. Reliance is placed on Smt. Chenamma's case
(supra) to contend that where the name of the
Waqf Board is being subsequently inserted in
the place of the name of a private entity or a
person, it would be for the Waqf Board to
establish title over the property and not for the
person whose name was already available on
the record to approach the Board under Section
83. It is these rival contentions that must be
considered to answer the above point.
27.12. The above proceedings have been pending
since 2017, inasmuch as Writ Petition No.11330
was filed in the year 2017, though, of course,
Writ Petition No. 3732 was filed subsequently in
the year 2021. It is at this length of time, after
nearly eight years, that this aspect is required
- 80 -
NC: 2025:KHC:18402
HC-KAR
to be considered by this Court. This aspect of
time is of relevance inasmuch as the above
proceedings have been pending before this
Court for the last several years, in my
considered opinion, if, at this stage, the parties
are relegated to any other proceedings, then
the same would cause injustice to all the
parties, even if they had approached this Court
when they had an alternative remedy.
27.13. Be that as it may, what is in question before
this Court is a property which had been
purchased by Rifa-Hul-Muslimeen Educational
Society. The same having been allotted by the
City Improvement Trust Board (CITB), Mysuru,
now Mysuru Urban Development Authority
(MUDA), the allotment and purchase of the
property was made prior to the acquisition of
the land of Ande Shah Vali Makhan, the
compensation having been paid much after the
- 81 -
NC: 2025:KHC:18402
HC-KAR
consideration had been paid by the Trust for
the said property. It is now the contention of
the Waqf Board that on account of the
compensation amount paid to the Mutawalli of
Ande Shah Vali Makhan, due to the acquisition
of the property of Ande Shah Vali Makhan and
the said money having initially been lent to the
Trust in the year 1990 and thereafter treated as
a donation in the year 1996, the property of the
Trust is a deemed Waqf and on that basis, an
entry is caused in the Waqf Register by issuing
a Notification.
27.14. It is not a case where the Waqf's name was
entered into the Waqf's Register regarding the
subject property, and subsequently, someone
else claimed that the property is not a Waqf
property but a private property. But in this
case, a private property, as regards which the
revenue entries were made in the name of the
- 82 -
NC: 2025:KHC:18402
HC-KAR
private Trust, is now sought to be contended by
the Waqf Board to be a Waqf property. The
Waqf Board contending that the property is a
Waqf property, the petitioners contending that
it is not a Waqf property, but a private
property, since all the documents stand in the
name of the Trust, I am of the considered
opinion that the Waqf Board exercising powers
under the Waqf Act and causing the entries of
the Waqf Board as regards the said property,
cannot take advantage of the said fact and
contend that the petitioners have to approach
the Tribunal under Section 83 of the Waqf Act.
27.15. Though the Tribunal exercises powers of a Civil
Court, the fact remains that it's a Tribunal and
not a Court. The fact also remains that what is
challenged is the action of the Waqf Board in
contending that the property is a Waqf
property. In that view of the matter, I am of
- 83 -
NC: 2025:KHC:18402
HC-KAR
the considered opinion that the petitioners
cannot be driven to a Tribunal to claim a
declaration of their title or the like. It is for the
Waqf Board to initially establish that the action
taken by the Waqf Board is proper and correct.
The Waqf Board cannot take advantage of its
own action and contend that the petitioners
have to approach the Tribunal seeking relief,
when it is the Waqf Board itself that would have
to approach the Tribunal seeking for the reliefs.
27.16. In that view of the matter, it would be
necessary for this Court to determine whether
the action of the waqf Board is ex-facie, proper
and in accordance with law and if and only if
the same satisfies the requirement of law, then
this Court would have to decide as to who
would have to approach the Tribunal, whether it
is the petitioners or the Waqf Board.
- 84 -
NC: 2025:KHC:18402
HC-KAR
27.17. Hence, I answer point No.1, by holding that
the present dispute does not fall in the
exclusive jurisdiction of the Waqf Tribunal.
This Court can exercise writ jurisdiction
under Article 226 of the Constitution of
India, more so, when it is the Waqf Board,
which is now seeking to assert title over
the property, which always stood in the
name of the Trust.
28. Answer to Point No.2: Was the procedure under
Sections 5 and 6 of the Waqf Act, 1995
(including publication of notification and
objection mechanisms) followed correctly?
28.1. Sections 5 and 6 of the Waqf Act, 1995, are
reproduced hereunder for easy reference:
"5. Publication of list of auqaf.--(1) On receipt
of a report under sub-section (3) of section 4, the
State Government shall forward a copy of the
same to the Board.
(2) The Board shall examine the report
forwarded to it under sub-section (1) and 5
fordward it back to the Government within a
period of six months for publication in the Official
Gazette a list of Sunni auqaf or Shia auqaf in the
State, whether in existence at the commencement
- 85 -
NC: 2025:KHC:18402
HC-KAR
of this Act or coming into existence thereafter, to
which the report relates, and containing such
other particulars as may be prescribed.
(3) The revenue authorities shall--
(i) include the list of auqaf referred to in
sub-section (2), while updating the land
records; and
(ii) take into consideration the list of auqaf
referred to in sub-section (2), while deciding
mutation in the land records.
(4) The State Government shall maintain a
record of the lists published under sub-section (2)
from time to time.
6. Disputes regarding auqaf.--(1) If any
question arises whether a particular property
specified as waqf property in the list of auqaf is
waqf property or not or whether a waqf specified
in such list is a Shia waqf or Sunni waqf, the Board
or the mutawalli of the waqf or any person
aggrieved may institute a suit in a Tribunal for the
decision of the question and the decision of the
Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained
by the Tribunal after the expiry of one year from
the date of the publication of the list of auqaf:
Provided further that no suit shall be instituted
before the Tribunal in respect of such properties
notified in a second or subsequent survey
pursuant to the provisions contained in sub-
section (6) of section 4.
(2) Notwithstanding anything contained in sub-
section (1), no proceeding under this Act in
respect of any waqf shall be stayed by reason only
- 86 -
NC: 2025:KHC:18402
HC-KAR
of the pendency of any such suit or of any appeal
or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be
made a party to any suit under sub-section (1)
and no suit, prosecution or other legal proceeding
shall lie against him in respect of anything which is
in good faith done or intended to be done in
pursuance of this Act or any rules made
thereunder.
(4) The list of auqaf shall, unless it is modified
in pursuance of a decision of the Tribunal under
sub-section (1), be final and conclusive.
(5) On and from the commencement of this Act
in a State, no suit or other legal proceeding shall
be instituted or commenced in a court in that
State in relation to any question referred to in
sub-section (1)."
28.2. The submission of Ms. S. R. Anuradha, learned
Senior Counsel appearing for the Waqf Board, is
that the necessary procedure has been
followed. A Gazette Notification had been
issued way back on 01.04.1965, whereunder,
Ande Shah Vali Makhan was notified as a Waqf
property, being the owner of the land bearing
Municipal No.3513, measuring 282 sq.feet x
272 sq.feet.
- 87 -
NC: 2025:KHC:18402
HC-KAR
28.3. Her submission is also that the said land had
been acquired, compensation had been
awarded and the Mutawalli had initially
transferred the entire amount to the Trust as a
loan and thereafter treated it as a donation on
the ground that the Trust is involved in carrying
out pious objectives of providing education to
poor Muslim students.
28.4. Therefore, she has contended that in terms of
sub-section (r) of Section 3 of the Waqf Act,
1995, the said usage of the money of an
existing Waqf by the Trust for a pious purpose
would create a deemed Trust or a deemed
Waqf, on account of the permanent dedication
of the money made by the Mutawalli, for a
pious purpose of education of poor Muslim
students.
28.5. In that view of the matter, she has contended
that proceedings have been taken up under
- 88 -
NC: 2025:KHC:18402
HC-KAR
Section 40 of the Waqf Act. The Waqf Board,
having collected the information regarding the
property and on the basis of the above is of the
belief that the property is a Waqf property, has
caused entry of the name of the Waqf and its
property in the Waqf Register.
28.6. The initial process under Sections 5 and 6 of the
Waqf Act, having been carried out in respect of
the property of Ande Shah Vali Makhan, there
can never be any dispute that the property
which was acquired belonged to the said Waqf
and was a Waqf property. There is no dispute
as such, as regards the procedure under
Sections 5 and 6 not having been followed
when Ande Shah Vali Makan was notified as a
Waqf.
28.7. Insofar as the Trust is concerned, the Board
being of the belief that the property of the Trust
is also a deemed Waqf in terms of sub-section
- 89 -
NC: 2025:KHC:18402
HC-KAR
(r) of Section 3, the money donated by the
Mutawalli of Ande Shah Vali Makan having been
used by Trust for pious purpose, there will be
no requirement for carrying out any particular
survey and/or calling for a report under sub-
section (3) of Section 4 of the Waqf Act. In the
present case, the Board having exercised
powers under Section 40, would suffice the
requirement of Section 5, and therefore the
entry of the name of the Waqf Board in respect
of the property of the Trust is proper and
correct.
28.8. Again, by referring to Section 6 of the Waqf Act,
1995, she submits that if at all the
petitioners are aggrieved by the action of the
Board, under Section 40 and Section 5, then
the petitioners would have to approach the
Tribunal, and not this Court.
- 90 -
NC: 2025:KHC:18402
HC-KAR
28.9. The submission of Sri L.M. Chidanandayya,
learning counsel for the Trust in
W.P.No.11330/2017 is that the procedure
under Section 4 of the Waqf Act, has not at all
been followed. In this regard, he relies upon
Section 4, which is reproduced hereunder:
"4. Preliminary survey of auqaf.--(1) The State
Government may, by notification in the Official
Gazette, appoint for the State a Survey
Commissioner of Auqaf and as many Additional or
Assistant Survey Commissioners of Auqaf as may
be necessary for the purpose of making a survey
of auqaf in the State.
(1A) Every State Government shall maintain a
list of auqaf referred to in sub-section (1) and the
survey of auqaf shall be completed within a period
of one year from the date of commencement of
the Wakf (Amendment) Act, 2013 (27 of 2013), in
case such survey was not done before the
commencement of the Wakf (Amendment) Act,
2013:
Provided that where no Survey Commissioner
of Waqf has been appointed, a Survey
Commissioner for auqaf shall be appointed within
three months from the date of such
commencement.
(2) All Additional and Assistant Survey
Commissioner of Auqaf shall perform their
functions under this Act under the general
supervision and control of the Survey
Commissioner of Auqaf.
(3) The Survey Commissioner shall, after
making such inquiry as he may consider
necessary, submit his report, in respect of auqaf
- 91 -
NC: 2025:KHC:18402
HC-KAR
existing at the date of the commencement of this
Act in the State or any part thereof, to the State
Government containing the following particulars,
namely:--
(a) the number of auqaf in the State
showing the Shia auqaf and Sunni auqaf
separately;
(b) the nature and objects of each waqf;
(c) the gross income of the property
comprised in each waqf;
(d) the amount of land revenue, cesses,
rates and taxes payable in respect of each
waqf;
(e) the expenses incurred in the realisation
of the income and the pay or other
remuneration of the mutawalli of each waqf;
and
(f) such other particulars relating to each
waqf as may be prescribed.
(4) The Survey Commissioner shall, while
making any inquiry, have the same powers as are
vested in a civil court under the Code of Civil
Procedure, 1908 (5 of 1908) in respect of the
following matters, namely:--
(a) summoning and examining any witness;
(b) requiring the discovery and production of
any document;
(c) requisitioning any public record from any
court or office;
(d) issuing commissions for the examination
of any witness or accounts;
(e) making any local inspection or local
investigation;
(f) such other matters as may be prescribed.
- 92 -
NC: 2025:KHC:18402
HC-KAR
(5) If, during any such inquiry, any dispute
arises as to whether a particular waqf is a Shia
waqf or Sunni waqf and there are clear
indications in the deed of waqf as to its nature,
the dispute shall be decided on the basis of
such deed.
(6) The State Government may, by notification
in the Official Gazette, direct the Survey
Commissioner to make a second or subsequent
survey of waqf properties in the State and the
provisions of sub-sections (2), (3), (4) and (5)
shall apply to such survey as they apply to a
survey directed under sub-section (1):
Provided that no such second or subsequent
survey shall be made until the expiry of a period
of ten years from the date on which the report in
relation to the immediately previous survey was
submitted under sub-section (3):
Provided further that the waqf properties
already notified shall not be reviewed again in
subsequent survey except where the status of
such property has been changed in accordance
with the provisions of any law."
28.10. He submits that, before the exercise of powers
under Section 5 of the Waqf Act, the
requirements under Section 4 had to be
complied with. The dispute in the present
matter is not as regards the property of Ande
Shah Vali Makhan which had been acquired, but
is as regards the Trust property which is
- 93 -
NC: 2025:KHC:18402
HC-KAR
claimed to have been deemed to be dedicated
by applying sub-section (r) of Section 3.
28.11. He submits that without a survey being carried
out in terms of sub-section (1) of Section 4,
inquiry by a Survey Commissioner under sub-
section (3) of Section 4, no action can be taken
under sub-section (5), inasmuch as in terms of
sub-section (1) of Section 5, it is only on a
report under sub-section (3) of Section 4 being
received by the State Government that the
same shall be forwarded to the Board and the
Board is required to examine the report, with
its comments and thereafter the revenue
authority shall include the list of Waqf, which
list shall be maintained by State Government.
This being the initial survey in terms of sub-
section (6) of Section 4, a second or a
subsequent survey could also be directed by
the State Government which would follow the
- 94 -
NC: 2025:KHC:18402
HC-KAR
procedure under sub-Sections (2), (3), (4) and
(5) of Section 4 and a report submitted and any
such survey shall not be made until the expiry
of a period of ten years from the date on which
the report in relation to the immediately
previous survey report was submitted. His
submission is that the first survey having been
carried out and the earlier Notification in the
year 1964 having been published as regards
Ande Shah Vali Makhan any other property to
be included would have to be so included by
following the procedure under sub-section (6)
of Section 4 and even this second survey or a
subsequent survey would have to be carried out
across the State and not as regards a particular
property.
28.12. Be that as it may, he submits that the
procedure under sub-section (6) of Section 4 of
the Waqf Act has not been followed, the entry
- 95 -
NC: 2025:KHC:18402
HC-KAR
of the name of the Waqf Board in respect of the
property of the Trust could not have been made
contrary to Sections 4, 5 and 6 of the Waqf Act,
1995.
28.13. Thus, the procedure not having been followed
merely because the Waqf Board comes to a
conclusion under Section 40 that the property is
a Waqf, no entry could have been made of the
name of the Waqf Board. His submission is that
Section 40 would apply in a different
circumstance where the property is already a
Waqf property and not as regards a property to
be freshly indicated or registered as a Waqf
property.
28.14. Shri G. Krishnamurthy, learned Senior Counsel
appearing for the Bank, has referred to the
decision of A.P. State Waqf Board and others
case (supra) to contend that an inquiry is
required to be conducted on Section 40. No
- 96 -
NC: 2025:KHC:18402
HC-KAR
inquiry having been conducted, entry could not
have been made.
28.15. It is in the background of the above
submissions that the above point would have to
be answered.
28.16. It is not in dispute that, insofar as Ande Shah
Vali Makhan is concerned, a survey was carried
out, and a list of Waqf and Waqf properties was
published on 01.04.1965. The said property
was subsequently acquired vide a notification
issued under sub-section (1) of Section 4 of the
Land Acquisition Act on 10.11.1986. The final
Notification under sub-section (1) of Section 6
came to be issued on 25.04.1987 and an award
was passed on 14.01.1988.
28.17. The property of the Trust was allotted by the
City Improvement Trust Board (CITB), Mysuru,
on an application filed by the Trust on
25.02.1974 as regards which a consideration of
- 97 -
NC: 2025:KHC:18402
HC-KAR
Rs.18,000/- was paid by the Trust on
08.12.1980, on which basis a lease cum sale
agreement was registered in the year 1980.
Thus, it is clear that the amounts which were
received by the Mutawalli of Ande Shah Vali
Makhan were not those which were used by the
Trust for the purchase of the subject property
in the year 1980, since the compensation was
paid only in the year 1989-90.
28.18. It is also not in dispute that the property of the
Trust was not notified in the year 1964, after
the first survey was carried out in terms of
Section 4 of the Waqf Act, 1995. The same
could also not form part of the notification since
it was the Society that had made an application
for the grant of property, which was granted in
the year 1980. It is further not in dispute that
no subsequent or second survey was carried
- 98 -
NC: 2025:KHC:18402
HC-KAR
out with respect to the subject property
standing in the name of the Trust.
28.19. The only contention of the Wakf Board is by
relying on sub-section (r) of Section 3 to
contend that the compensation amount
received on account of the acquisition of Ande
Shah Vali Makhan, which was used for a pious
purpose by the Trust and therefore, the
property of the Trust is a Waqf.
28.20. One of the constructions which have been put
up, being called Ande Shah Vali Complex, is a
deemed admission that the Waqf has continued
with the Trust. On that basis, it is contended
that a decision in terms of Section 40 of the
Waqf Act, 1995 has been taken. The Waqf
Board, having collected information regarding
the subject property and having a reason to
believe that the same is a Waqf property, has
decided that the said property is Waqf property
- 99 -
NC: 2025:KHC:18402
HC-KAR
and caused the entry in the Waqf Register. This
procedure which has been adopted by the Waqf
Board, is by referring to sub-section (r) of
Section 3 and Section 40 and not proceedings
under Sections 5 and 6 of the Waqf Act, 1995.
28.21. Though it is contended that the information
gathered Section 40 of the Waqf Act and the
orders passed thereon satisfies the requirement
of Sections 5 and 6 of the Act, I am of the
considered opinion that the operation of
Sections 5 and 6 stands on a different footing
than that under Section 40 or sub-section (r) of
Section 3. The purpose and purport of Sections
5 and 6 of the Waqf Act, 1995, is to determine
Waqf lands across the state and conduct a
survey in relation to all those properties. It is
on the basis of this survey, physical and
documentary, that necessary action is taken.
- 100 -
NC: 2025:KHC:18402
HC-KAR
28.22. Sub-section (1) of Section 40 of the Waqf Act,
deals with the situation where the Board having
collected information regarding a property has
reasons to believe that it is a Waqf property
and if any question arises whether a particular
property is a Waqf property or not, or whether
the Waqf is a Sunni Waqf or a Shia Waqf, it
may, after making such inquiry, as it may deem
fit, decide the question. Thus, what is being
considered in sub-section (1) of Section 40 by
the Board is, whether any property is a Waqf
property, which would mean that it ought to
have been a Waqf property even before the
exercise of powers under Section 40. A new
property cannot be said to be a Waqf property
in terms of an order passed under Section 40.
28.23. As mentioned supra, the purchase of the
property by the Trust was made in the year
1980, whereas the compensation in respect of
- 101 -
NC: 2025:KHC:18402
HC-KAR
the acquisition of the property of Ande Shah
Vali Makhan was paid in the year 1989-90.
Thus, when information was gathered under
Section 40, the property of the Trust, which is
subject matter of the present petitions was not
a Waqf property at any point of time, but it is
only, by invoking a deemed dedication under
sub-section (r) of Section 3, it is contended that
the properties are of the Waqf property.
28.24. This order passed under Section 40, cannot be
one which complies with the procedure under
Sections 5 and 6 of the Waqf Act, 1995. It is
also clear that no enquiry has been conducted
under Section 40 what has been done is only
gathering of information, thus even the
procedure under Section 40 has not been
followed before the order was passed.
28.25. As such, I answer point No.2, by holding
that the procedure under Sections 5 and 6
- 102 -
NC: 2025:KHC:18402
HC-KAR
of the Waqf Act, 1995, has not at all been
followed in the present case nor is the
procedure under section 40 followed.
29. Answer to Point No.3: Do disputed questions
of fact (like title, possession, and validity of
Waqf entry) require trial and evidence that
cannot be adjudicated in writ jurisdiction?
29.1. The submission of Ms. S. R. Anuradha, learned
Senior Counsel for the Waqf Board is that,
"once a Waqf, always a Waqf", and in this
regard, she has relied upon Sayyed Ali's case
(supra), rendered by the Hon'ble Apex Court.
Her submission is that once a Waqf is created,
it would continue to be in operation for all times
to come, and such a Waqf would be governed
by the provisions of the Waqf Act. Whether a
property of the Waqf is mortgaged or not, the
mortgagee cannot exercise any power over that
mortgaged land, if it is a Waqf land.
29.2. Per contra, the submission of Shri. G.
Krishnamurthy, learned Senior Counsel
- 103 -
NC: 2025:KHC:18402
HC-KAR
appearing for the Bank is that, the Waqf Board
being a quasi-judicial authority has to comply
with the principles of natural justice, by holding
a due and proper inquiry. Even for the purpose
of determination as to, whether the property is
a Waqf property or not, the Board, cannot, on
its own, come to a conclusion that the property
is a Waqf property, without providing a hearing
to the parties concerned by relying on A.P.
State Waqf Board's case (supra).
29.3. By relying on Nimmo's case (supra), he
submits that in the present case, the property
was not a Waqf property ever, but is now
sought to be treated as a Waqf property.
29.4. So, the only dispute, which is required to be
considered by this Court is, whether the
property was a Waqf property prior to the
orders passed under Section 40 or is only by
virtue of the order passed under Section 40,
- 104 -
NC: 2025:KHC:18402
HC-KAR
the property became a Waqf property? It is in
the background of these submissions that the
above point is required to be answered.
29.5. The factual aspects in relation thereto have
been dealt with supra. At the cost of repetition,
what is required to be observed is that, the
Trust had purchased the property in the year
1980 whereas the compensation for Ande Shah
Vali Makhan's property was only paid in the
year 1990. On the ground that this
compensation amount has been transferred by
Mutawalli to the Trust, and the Trust is using
the said money for education of poor Muslims,
that a permanent dedication of the
compensation amount being pleaded, is
contended that a Waqf is created under sub-
section (r) of Section 3.
29.6. At this stage, what would be required to be
considered by this Court is, whether the
- 105 -
NC: 2025:KHC:18402
HC-KAR
property of the Trust was ever a Waqf
property? And if it was so, to relegate the
parties to the remedy available under Section
83 of the Waqf Act, 1995. If it is not to be so,
then the question of an order being passed
under Section 40, treating the property as a
Waqf property and registering the name of the
Waqf Board, making entry of the name of the
Waqf Board would not arise.
29.7. The facts being very clear that the entire
consideration for the property was paid in the
year 1980 and no consideration was paid from
and out of the compensation awarded on
account of acquisition of Ande Shah Vali
Makhan's property. It is clear that as on the
date of purchase of the property by the Trust in
the year 1980, the property was an
independent private property under the
ownership of the Trust as regards with Ande
- 106 -
NC: 2025:KHC:18402
HC-KAR
Shah Vali Makhan and the Waqf Board had no
right, title or interest.
29.8. As regards the transfer of money by the
Mutawalli, the money having been received on
account of compensation on acquisition of the
property of Ande Shah Vali Makhan, the said
money was initially transferred as a loan and
thereafter treated by the Mutawalli as a
donation. The donation was not made with the
intention of creating a Waqf nor was the
donation accepted by the Trust with the
intention and obligation of creating a Waqf. The
Trust had approached Mr. Azeez Sait Sait, who
was the Mutawalli of the Waqf and also a
Trustee of the Trust for certain financial
indulgence. At the time when the money was
transferred, either as a loan and/or
subsequently when the money was treated as a
donation, there is no understanding between
- 107 -
NC: 2025:KHC:18402
HC-KAR
the parties that by accepting the said moneys,
the Trust is creating a Waqf on the properties of
the Trust or that a Waqf is deemed to have
been created, on account of such donation. The
property having been purchased by the Trust
out of its own funds in the year 1980, all the
aspects relating to Ande Shah Vali Makhan
having occurred subsequently, ex- facie, it is
clear that the title of the property was, is, and
always belonged to the Trust and as such, the
question of any dispute as regards the title,
possession and validity requiring a trial or
evidence would not arise. These facts being ex-
facie clear from the records, the property as
regards which the Waqf Board now claims, was
always the property of the Trust and not that of
the Waqf.
29.9. Hence, I answer Point No.3, by holding
that there are no disputed questions of
- 108 -
NC: 2025:KHC:18402
HC-KAR
fact relating to title or possession
requiring trial and evidence, therefore,
creating a bar on this Court exercising writ
jurisdiction to decide the matter.
30. Answer to Point No.4, Point No.5 & Point No.6:
4. Whether an amount initially lent by the
Mutawalli to a third party and subsequently
classified as a donation would require exercise
of powers under Section 76 of the Waqf Act,
1995 or can the Waqf Board by exercising
powers under Section 40 determine that the
use to which the aforesaid donated amount had
been put to, constitutes Waqf property?
And
5. Whether the board having caused a demand
for the amounts due along with interest is
barred from thereafter contending that due to
the use to which the amount has been put to,
there is a waqf created, and seek to exercise
powers under Section 40 to declare such
property as a Waqf property?
6. Whether any of the properties belonging to
the Trust can be said to be constituting a Waqf
under Subsection (r) of Section 3 of the Waqf
Act, 1995?
30.1. The submission of Ms. S.R. Anuradha, learned
Senior Counsel for the Waqf Board is that the
- 109 -
NC: 2025:KHC:18402
HC-KAR
amount received as compensation had initially
been lent to the Trust by the Mutawalli of the
Waqf and later on treated as a donation. So
long as the amount was considered to have
been lent, powers under Section 76 could be
exercised. Once the money was treated as a
donation, by invoking the definition of a Waqf
under sub-Section (r) of Section 3, the powers
under Section 40 of the Waqf Act have been
exercised.
30.2. Sections 76 and 40 have been reproduced
herein above. Under Section 76, there is an
embargo and/or a prohibition on the Mutawalli
to lend or borrow monies without sanction of
the Board. It is clearly and categorically stated
that no Mutawalli, Executive Officer or other
person in charge of the administration of Waqf,
shall lend any money belonging to the Waqf or
any Waqf property, or borrow any money for
- 110 -
NC: 2025:KHC:18402
HC-KAR
the purposes of the Waqf, except with the
previous sanction of the Board, provided the
same is authorised by express provision in the
Waqf Deed.
30.3. Under sub-section (3) of Section 76, if any
money is lent in contravention of the provisions
of Section 76, then the Chief Executive Officer
of the Waqf Board would be entitled to recover
an amount equal to the amount which has been
lent or borrowed, together with interest due
thereon, from the personal funds of the person
by whom such amount has been lent or
borrowed and if a property has been lent, to
recover the possession of such lent property
from the person who is in possession of such
property.
30.4. Admittedly, what has been lent in the present
matter is money and not property. The said
amount of Rs.9,46,000/- which had been lent
- 111 -
NC: 2025:KHC:18402
HC-KAR
by the Mutawalli was without the sanction of
the Board. Therefore, there is violation of sub-
section (1) of Section 76.
30.5. At the most, the Chief Executive Officer could
have exercised powers under sub-section (3) of
Section 76 to recover an amount equal to the
amount so lent with interest due thereon. No
action in this regard, had been taken by the
Chief Executive Officer until 1996.
Subsequently, when a claim was made, the said
Mutawalli had indicated that the amount has
been treated as a donation. It is in that
background that the powers under Section 40
of the Waqf Act were exercised and the Waqf
Board has passed an order indicating that the
subject property is a Waqf property in the yea
2016.
30.6. Reliance is placed on the decision in Syed
Mohd. Salie Labbai's case (supra) to contend
- 112 -
NC: 2025:KHC:18402
HC-KAR
that the requirements of dedication are satisfied
since the amount has been donated to the Trust
for use for the purpose of educating poor
Muslim students, which is a pious purpose, and
as such, the property is a Waqf property.
30.7. Section 40 of the Waqf Act, has been dealt with
herein above. Sub-section (1) of Section 40
provides for the Board to collect information
regarding any property which it has reasons to
believe to be a Waqf property and if any
question arises whether the particular property
is a Waqf property or not or whether Waqf is a
Sunni Waqf or a Shia Waqf, it may, after
making such inquiry, as it may deem fit, decide
the question.
30.8. In Asma Khatoon's case (supra), the Hon'ble
Calcutta High Court has held that for a property
to be a Waqf property, there must be a
permanent dedication by a person professing
- 113 -
NC: 2025:KHC:18402
HC-KAR
Islam of any movable or immovable property
and that the dedication is required to be
explicit. Though it is contended that with the
donation being made, there is an explicit
dedication of the said amount, there is nothing
which is on record to indicate that Mr. Azeez
Sait, the Mutawalli of Ande Shah Vali Makhan
had caused any such permanent dedication. An
interpretative finding by the Waqf Board by
extrapolating sub-section (r) of Section 3 to
such a donation contending that there is a
permanent dedication, in my considered
opinion, is not permissible. As indicated supra,
the powers under Section 40 can be exercised
to determine whether a property is a Waqf
property, thereby meaning that the property
was already a Waqf property and the
determination is to be made as to whether it is
a Waqf property and not to create a Waqf as
- 114 -
NC: 2025:KHC:18402
HC-KAR
regards a property which was never a Waqf
property. The mere donation of the monies by
the Mutawalli would not, in my considered
opinion, create a Waqf by permanent dedication
or otherwise.
30.9. Initially, the Waqf Board having issued notice
for recovery of the money ought to have
proceeded with the same even if the contention
raised by the Mutawalli that the amount lent
has been now treated as a donation. The Trust,
being a third party cannot be made to suffer on
account of any action or inaction on part of the
Mutawalli and/or the Waqf Board and the Waqf
Board cannot make use of powers not vested
with it to treat a property which is not a Waqf
property, as a Waqf property, by deeming
fiction under sub-section (r) of Section 3.
30.10. Hence I answer Point No.4, by holding
that, even if the amount initially lent by
- 115 -
NC: 2025:KHC:18402
HC-KAR
the Mutuwalli was subsequently treated as
a donation, the powers under Section 40
could not be exercised to determine that
on account of such lending of money, a
property of the borrower is a Waqf and
constitutes a Waqf property, in the
absence of any particular explicit
dedication or the moneys with an intention
to create a Waqf.
30.11. I Answer Point No.5, by holding that once
the Board had caused a demand for the
amounts due along with the interest,
merely on account of the Mutawalli
contending that the lent money having
been treated as a donation, the Board
cannot now contend that a Waqf has been
created and pass an order under Section
40 declaring the property of the borrower
as a Waqf property.
- 116 -
NC: 2025:KHC:18402
HC-KAR
30.12. I answer Point No.6, by holding that there
is no dedication made of the amount of
Rs.9,46,000/- by Mr. Azeez Sait, Mutawalli
of the Waqf for invoking sub-section (r) of
Section 3 of the Waqf Act, 1995.
31. Answer to Point No.7: Whether the different
stands taken by the Waqf Board initially for
recovery of the amounts along with interest,
subsequently claiming that the construction
which has been put up by using the said
amount would be a Waqf, and lastly, by making
a demand on the present market value of the
property of the Waqf acquired under the Land
Acquisition Act, 1894, is sustainable?
31.1. The stand of the Waqf Board in the present
matter has been changing from time to time.
Initially, the Waqf Board contended that the
amount received as compensation had been
lent by the Mutawalli to the Trust and caused a
demand for recovery in the year 1995.
31.2. Secondly, thereafter, when the Mutawalli had
contended that the amount had been donated,
- 117 -
NC: 2025:KHC:18402
HC-KAR
the Waqf Board kept quiet and did not do
anything.
31.3. Thirdly, after a long lapse of time, the Waqf
Board took up a contention that from and out of
the monies which had been donated, a building
with ten shops had been constructed, which
had been rented out, the rents being used for
the purpose of providing education to poor
Muslim students and therefore, it was
contended that the said building is a Waqf
property, further on account of the said building
being named as Ande Shah Vali Makhan
Building and a demand was made that the land
and building be transferred to the Waqf Board
by treating them as Waqf properties.
31.4. Fourthly, after some more time in the year
2016 the Waqf Board has caused a demand by
stating that the amount which had been
donated in the year 1990 could have been used
- 118 -
NC: 2025:KHC:18402
HC-KAR
for purchase of 47,916.99 square feet i.e., 01
acre 04 guntas of land and therefore 47,916.99
square feet i.e., 01 acre 04 guntas in the
property of the Trust would have to be made
over to the Waqf Board or in the alternative,
the money equivalent thereof to an extent of
47,916.99 square feet was to be transferred
amounting to Rs.24,00,25,316/-, in lieu of the
said land as compensation.
31.5. The stand of the Wakf Board having been
changing, the conduct of the Board leaves
much to be desired. From a claim for
Rs.9,46,000/- with interest to
Rs.24,00,25,316/-, over the last twenty years,
without taking any action, the Board has been
changing its stands, dehors the law applicable.
The Board had to either take action under
Section 76 for recovery of the amount lent, as
also take action against the Mutawalli for
- 119 -
NC: 2025:KHC:18402
HC-KAR
having lent money without authorisation, or
thereafter to recover the amount given as
donation without the approval of the Board.
Instead of doing so, the Board is now seeking
to draw an artificial distinction between the
amount being lent and amount donated, both of
which, the Mutawalli did not have power to do.
31.6. Hence, I answer point No.7 by holding
thatr the different stands taken by the
Waqf Board initially for recovery of the
amounts along with interest, subsequently
claiming that the construction which has
been put up by using the said amount
would be a Waqf, and lastly, by making a
demand on the present market value of
the property of the Waqf acquired under
the Land Acquisition Act, 1894, is not
sustainable. I refrain from making any
- 120 -
NC: 2025:KHC:18402
HC-KAR
further comment on the action on part of
the Wakf Board.
32. Answer to Point No.8: Can the demand notice
issued by the Waqf Board claiming a sum of
Rs.24,00,25,315/- be said to be valid and
sustainable?
32.1. The only methodology which has been used by
the Waqf Board for a claim of a sum of
Rs.24,00,25,315/- is that the amount which
had been lent and/or donated in the year 1990,
viz., Rs.9,46,000/- could have been used to
purchase 47,916.99 square feet and it is the
present value of the said land which has been
extrapolated to Rs.24,00,25,316/-.
32.2. As answered to Point No.7 above, this claim is
the last claim which has been made. Three
other claims have been made earlier, the
position of the Board has been changing from
time to time and with each such change, the
Board has sought to better its position to make
a higher claim.
- 121 -
NC: 2025:KHC:18402
HC-KAR
32.3. For the same reasons as stated in answer
to Point No.7, I am of the considered
opinion that the demand made of this
amount of Rs.24,00,25,315/- is neither
valid nor sustainable.
33. Answer to Point No.9: What order?:
In view of my answers to Point Nos.1 to 8 above, I
pass the following:
i. Writ Petition No.11330/2017 is allowed;
ii. A certiorari is issued. The order dated
21.07.2016 bearing
No.KSBA/MSC/29/MYS/2016 at Annexure-A is
quashed.
iii. The claim made by respondent for a sum of
Rs.24,00,25,316/- vide Annexure-A is declared
to be without any authority.
i. Writ Petition No.15313/2020 is allowed;
ii. A certiorari is issued. The certificate of
registration dated 23.01.2018 bearing
- 122 -
NC: 2025:KHC:18402
HC-KAR
No.KSBA/REG/09/MYS/2015-16 issued by
respondent No.1 at Annexure-A is quashed.
iii. The proceedings initiated under Section 40 of
the Waqk Act is illegal, without any authority
and therefore quashed.
iv. Liberty is reserved to respondent-Board to
initiate such action for recovery of monies of
Ande Shah Vali Makan, as may be permissible
in accordance with law.
i. Writ Petition No.3732/2021 is allowed;
ii. A certiorari is issued. The order dated
14.11.2017 bearing No.KSBA/ REG/09/
MYS/2015-16 passed by respondent No.1 at
Annexure-H is quashed.
iii. A certiorari is issued. The certificate of
registration dated 23.01.2018 bearing
No.KSBA/REG/09/MYS/2015-16 issued by
respondent No.2 at Annexure-J is quashed.
iv. A certiorari is issued. The letter/notice dated
25.11.2020 bearing No.KSBA/MSC/
24/MYS/2020-21 at Annexure-G is quashed.
v. A certiorari is issued. The letter dated
28.11.2020 bearing No.UGPS/CC/246/2020 at
Annexure-K is quashed.
vi. A certiorari is issued. The letter dated
16.12.2020 bearing No.DWAC/21/MYS/78-
- 123 -
NC: 2025:KHC:18402
HC-KAR
79/1002 issued by respondent No.3 at
Annexure-L is quashed.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
LN,BMV
