[Cites 15, Cited by 0]
Karnataka High Court
Noor Mohammed Khan vs The Karnataka State Board Of Auqaf on 26 February, 2026
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RFA No. 1876 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 1876 OF 2025
BETWEEN:
1. NOOR MOHAMMED KHAN
S/O. LATE B.N. AKRAM ALI KHAN
@ AMJAD KHAN, 47 YEARS
NO.8/1, 1ST MAIN ROAD
RAHAMATH NAGAR
OPP MLA LAYOUT
BANGALORE-560032
2. AKBER ALI KHAN
S/O. LATE B.N. AKRAM ALI KHAN
@ AMJAD KHAN,
47 YEARS, NO.8/1,
1ST MAIN ROAD
RAHAMATH NAGAR
OPP MLA LAYOUT
BANGALORE-560032
Digitally signed by
NAGARAJA B M ...APPELLANTS
Location: HIGH
COURT OF
KARNATAKA (BY SRI. T.A.KARUMBAIAH, ADVOCATE FOR
MS. VINITHA P.C., ADVOCATE)
AND:
1. THE KARNATAKA STATE BOARD OF
AUQAF, NO.6,
CUNNINGHAM ROAD
BENGALURU-560052.
2. THE LAW COMMITTEE
KARNATAKA STATE BOARD OF AUQAF
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NO.6, CUNNINGHAM ROAD
BANGALORE-560052.
3. THE CHIEF EXECUTIVE OFFICER
KARNATAKA STATE BOARD OF AUQAF,
NO.6, CUNNINGHAM ROAD,
BANGALORE-560052.
4. THE DISTRICT WAQF OFFICER
BENGALURU URBAN SOUTH DISTRICT
NO.16, 2ND FLOOR,
HAMEED SHAH COMPLEX,
CUBBONPET,
BANGALORE-560002.
5. JABIR ALI KHAN
S/O. LATE MOHAMMED RAZA ALI SHAH
AGED ABOUT 64 YEARS
SHUTTARI, CHISTI,
NIZAMIUL KHADRI, NO.10/1
SADAR PATHRAPPA ROAD
BANGALORE-560 002.
...RESPONDENTS
(BY SRI. MOHAMMAD NIYAZ S., ADVOCATE FOR R1 TO R4;
SRI G. KRISHNA MURTHY, SR. COUNSEL FOR
MOHAMMED ARIF KHAN MAKKI, ADVOCATE FOR R5)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC, PRAYING TO CALL FOR THE ENTIRE RECORDS IN
APPLICATION NO.7/2025 FROM THE FILE OF THE KARNATAKA
WAQF TRIBUNAL, BANGALORE DN BANGALORE AND TO SET
ASIDE THE ORDER DATED 7.05.2025 PASSED BY THE
KARNATAKA WAQF TRIBUNAL, BANGALORE., DN.,
BANGALORE., ON IA NO.1 FILED UNDER SEC.5 OF THE
LIMITATION ACT IN APPLICATION NO.7/2025 AND ALLOW THE
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SAID APPLICATION CONSEQUENTLY DIRECT THE TRIBUNAL TO
RESTORE THE APPLICATION TO ITS ORIGINAL FILE AND TO
PROCEED APPLICATION NO.7/2025 ON MERIT IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
Captioned appeal is by the applicants assailing the
order of the Waqf Tribunal dated 07.05.2025 passed in
Application No.07/2025, whereby the applicants'
interlocutory application filed in I.A.No.1 under Section 5
of the Limitation Act read with Section 83(5) of the Waqf
Act, 1995 is rejected and consequently, the main
application is also dismissed as barred by limitation.
2. For the sake of brevity, rank of the parties are as
referred to before the Waqf Tribunal.
3. Along with the main application filed under
Section 83(2) of the Waqf Act, 1995, the applicants also
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filed I.A. No.1 under Section 5 of the Limitation Act, 1963
seeking condonation of delay in presenting the substantive
proceedings. In the affidavit filed in support of the said
application, the applicants averred that during the
pendency of proceedings before this Court, their father,
who had been arrayed as respondent No.7, expired. It was
further stated that a memo dated 03.09.2024 was filed
seeking liberty to approach the competent Tribunal to
initiate appropriate proceedings in accordance with law.
The applicants contended that though this Court, by order,
granted three months' time to approach the Waqf
Tribunal, there occurred some delay in filing the
application under Section 83(2) of the Wakf Act, 1995
challenging the order dated 26.11.1976 passed in L.C.C.
No.38/1975 by the then Administrator of the State Waqf
Board. On this premise, condonation of delay was sought,
asserting that the delay was neither intentional nor
deliberate but occasioned by bona fide circumstances.
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4. The said application was stoutly opposed by
respondent No.5. The Waqf Tribunal, upon examining the
order dated 10.09.2024 passed by this Court in W.P.
No.24600/2022, recorded a finding that the applicants had
not assigned any independent or sufficient cause for
condonation of the inordinate delay, except placing
reliance on the liberty reserved by the Co-ordinate Bench.
The Tribunal observed that the writ petition in question
had been instituted by respondent No.5 against the State
Waqf Board and that the liberty to question the order
dated 26.11.1976 had been expressly reserved in favour
of the State Waqf Board alone. The Tribunal was of the
considered view that such liberty could not be invoked by
private individuals who were not beneficiaries of the said
direction. On that reasoning, the Tribunal concluded that
the applicants were not entitled to take advantage of the
liberty granted to the Board and that no sufficient cause
had been shown to condone the extraordinary delay in
assailing a 1976 order. Consequently, I.A. No.1 was
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rejected and, as a corollary, the main application came to
be dismissed as barred by limitation.
5. Assailing the said order, learned counsel for the
applicants, reiterating the grounds urged in the appeal,
vehemently contended that the rejection of I.A. No.1
suffers from patent perversity and non-application of
mind. Inviting attention to the material on record, he
would submit that the entries in the List of Auqaf at Sl.
No.147, which originally reflected the name of Dargah
Hazrath Nawab Ibrahim Ali Shah Shuttari @ Zindavali
(Sunni), were subsequently altered and replaced by a new
entry. According to him, the applicants were entitled to
establish, on merits, that the order dated 26.11.1976
delisting the notified Waqf properties and declaring them
as private properties was without jurisdiction and legally
unsustainable. It was further contended that in view of the
liberty granted by this Court, the matter required
substantive adjudication on merits before the Tribunal and
ought not to have been non-suited on technical grounds of
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limitation, particularly when the dispute pertains to
properties originally notified as Waqf.
6. In support of his submissions, learned counsel
placed reliance on the judgments of the Hon'ble Supreme
Court in P. Kumarakurubaran vs. P. Narayanan and
others1 and Sunil Kumar Maity vs. State Bank of
India and another2, to contend that Courts and Tribunals
ought to adopt a liberal and justice-oriented approach
while considering applications for condonation of delay,
especially where substantial rights are involved and when
no prejudice would be caused to the opposite party by
adjudication on merits.
7. Per contra, learned Senior Counsel appearing
for respondent No.5, drawing attention to the order
passed by the Co-ordinate Bench in W.P. No.24600/2022,
submitted that while quashing the notice issued by the
State Waqf Board proposing a fresh inquiry for relisting
Civil Appeal No.5622/2025 dated 29.04.2025
(2022) 20 SCC 543
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the property as Waqf, the Co-ordinate Bench had clearly
upheld the order dated 26.11.1976. He would emphasize
that the liberty to approach the Tribunal within three
months was specifically reserved to the State Waqf Board
and not to any private individual. Therefore, according to
him, the applicants cannot seek to enlarge the scope of
the liberty granted nor step into the shoes of the Board to
reopen a concluded issue after several decades. On this
premise, it was contended that the Tribunal was fully
justified in rejecting the application for condonation of
delay and dismissing the main petition as barred by
limitation.
8. Learned counsel appearing for respondent No.1
- State Waqf Board has also placed on record a detailed
synopsis contending that the order dated 26.11.1976
passed by the then Administrator of the Board in L.C.C.
No.38/1975 was without jurisdiction and, therefore, a
nullity in the eye of law. On that premise, he sought to
persuade this Court to hold that the liberty reserved by
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the Co-ordinate Bench while disposing of W.P.
No.24600/2022 ought not to be construed in a narrow or
pedantic manner. According to him, though the liberty was
expressly granted to the State Waqf Board, the same
should be interpreted as enuring not only to the benefit of
the Board but also to persons interested in the Waqf,
particularly when the subject matter concerns properties
once notified as Waqf. He would therefore submit that the
application filed by the present applicants under Section
83(2) of the Waqf Act, 1995, accompanied by an
application under Section 5 of the Limitation Act, 1963
deserved consideration on merits. It was contended that
the Tribunal erred in adopting a hyper-technical approach
in rejecting the application for condonation of delay,
instead of adopting a justice-oriented and liberal approach,
especially when the challenge was directed against an
order alleged to be without jurisdiction.
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9. Having heard the learned counsel appearing for
the parties and upon careful perusal of the records, this
Court has bestowed its anxious consideration to the
impugned order dated 07.05.2025 passed by the Waqf
Tribunal. In the light of the rival submissions, the following
points arise for consideration:
"(i) Whether the impugned order dated 07.05.2025
rejecting the application filed under Section 5 of the
Limitation Act, 1963 and, consequently, dismissing
the main application as barred by limitation suffers
from perversity or illegality so as to warrant
interference by this Court?
(ii) Whether the applicants had the locus standi to
maintain an application under Section 83(2) of the
Waqf Act, 1995 and question the order dated
26.11.1976 passed in L.C.C. No.38/1975 by the
then Administrator of respondent No.1 - Waqf
Board?
(iii) What order?"
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Findings on Points (i) and (ii)
10. Before this Court examines the correctness of
the order impugned, it would be apposite for this Court to
extract the prayer sought in the present application
No.7/2025, which reads as under:
"a) Set-aside/Quash the impugned order passed in
L.C.C No.38/1975 dated 26-11-1976 by the then
Administrator of the 1ST Respondent-Board declaring the
Gazette notified Waqf properties as private properties
produced at Annexure-'A'.
b) To Restore the entries in the List of Auqaf at
Serial No.147 pertaining to Dargah Hazrath Nawab
Ibrahim Ali Shah Shuttari @ Zindavali, Sunni, situated at
Kumbarpet, Bengaluru and Serial No.173 pertaining to
Khabrastan belonging to Hazrath Nawab Ibrahim Ali Shah
Shuttari @ Zindavali Sunni situated at Kumbarpet, Khasai
Lane, Bengaluru of the Gazette Notification dated 07-06-
1965 relating to Bangalore Urban District as per the
entries found in Annexure-'B' & 'C'.
c) Pass such other orders/directions as this Hon'ble
Tribunal deems fit in the facts and circumstances of this
case in the interest of justice and equity."
11. This Court also deems it fit to extract the
reasons assigned in the affidavit filed in support of the
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application filed under Section 5 of Limitation Act, 1963.
The relevant paragraphs 5 to 7 reads as under:
"5. I submit that, being aggrieved with the Notice
12.11.2020 and proceedings initiated by the Law
Committee of the Board which has allowed impleading
application by its order dated 31-10-2022, the
Respondent No.5 has preferred W.P No.24600/2022. In
this writ petition, my Father being the lineal descendant
of the holy saint was arraigned as Respondent No.7. The
Hon'ble High Court of Karnataka was pleased to allow the
writ petition by its order dated 10-09-2024 with a
direction to the Waqf Board to approach this Hon'ble
Tribunal to decide the nature of the Waqf, as it is only
Tribunal at the instance of the Board or Muthavalli of the
Waqf or any person aggrieved which is competent to
adjudicate the matter and none-else.
6. It is submitted that, during the course of
proceedings before the Hon'ble High Court of Karnataka,
my Father expired and we the applicants have filed a
Memo dated 03-09-2024 seeking to liberty to approach
this Hon'ble Tribunal to initiate proceedings in the manner
known to law as per the observation made in Para-8 & 9
of the order passed in W.P No.24600/2022. Accordingly,
the main application is filed assailing the order passed in
L.C.C No.38/1975 dated 26-11-1976 by the then
Administrator of the 1st Respondent-Board.
7. I submit that, although the impugned order
dates back to 26-11-1976, in view of the liberty reserved
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to the applicants and also in view of the direction to the
1st Respondent-Board in the order passed by the Hon'ble
High Court of Karnataka in W.P No.24600/2022, the
period of limitation is revived. Hence with abundant
caution the annexed application is filed to condone the
delay if any, in filing the main application."
(Emphasis Supplied)
A careful reading of paragraphs 5 to 7 of the affidavit filed
in support of the application under Section 5 of the
Limitation Act makes it abundantly clear that the entire
edifice of the applicants' plea for condonation of delay
rests upon the liberty allegedly reserved by this Court in
W.P. No.24600/2022. The applicants assert that since
their father--who was arrayed as respondent No.7 in the
said writ petition--expired during its pendency, and since a
memo dated 03.09.2024 was filed seeking liberty to
approach the Tribunal, the observations made by the Co-
ordinate Bench in paragraphs 8 and 9 of the order would
enure to their benefit. Proceeding on that premise, they
contend that the limitation to challenge the order dated
26.11.1976 stood "revived" and that they are therefore
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entitled to maintain the application under Section 83(2) of
the Waqf Act, 1995, notwithstanding the lapse of several
decades.
12. The affidavit does not disclose any independent,
factual, or legally sustainable explanation accounting for
the enormous delay from 1976 till the filing of the present
proceedings. The sole ground urged is the liberty said to
have been reserved by this Court and the consequential
assumption that such liberty automatically extended the
period of limitation or resurrected a cause of action long
since concluded. In fact, paragraph 7 of the affidavit
explicitly proceeds on the footing that the period of
limitation stood revived by virtue of the order passed in
W.P. No.24600/2022 and that the application under
Section 5 was filed only "with abundant caution."
13. Since the applicants have thus placed heavy
reliance upon the observations and liberty granted in W.P.
No.24600/2022, this Court deems it necessary to closely
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examine the findings recorded by the Co-ordinate Bench in
the said writ petition. The precise scope and ambit of the
liberty granted, and more importantly, the beneficiary of
such liberty, assume crucial significance in determining
whether the applicants could legitimately invoke the same
to overcome the bar of limitation. Equally relevant is the
operative portion of the order, which would clarify whether
any liberty was, in fact, reserved in favour of the present
applicants to approach the Waqf Tribunal by filing the
present application in Application No.7/2025.
14. It is in that context that this Court now
proposes to extract and examine paragraphs 21 to 25 of
the order passed in W.P. No.24600/2022.
" 21. The other aspect of the matter is the question
whether the property is a Waqf Property or not has to be
dealt with in the manner provided under the Waqf Act,
1995. Relevant at this juncture to refer to Sections 6 and
7 of the Act, which reads as under;
"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
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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 Tribunał after the expiry of one year from the
date of the publication of the list of 10[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.]
12[Explanation.-x x x x x.]
(2) Notwithstanding anything contained in sub-
section (1), по proceeding under this Act in respect
of any [waqf] shall be stayed by reason only 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 14[augaf] shall, unless it is modified in
pursuance of a decision or 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).
7. Power of Tribunal to determine disputes
regarding [auqaf].- (1) If, after the
commencement of this Act, (any question or dispute)
arises, whether a particular property specified as
[waqf] property in a list of [auqaf] is [waqf] property
or not, or whether a [waqf] specified in such list is a
Shia [waqf] or a Sunni [waqf], the Board or the
mutawalli of the [waqf], 10 [or any person aggrieved
by the publication of the list of auqaf under Section
5] therein, may apply to the Tribunal having
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jurisdiction in relation to such property, for the
decision of the question and the decision of the
Tribunal thereon shall be final:
Provided that.
(a) in the case of the list of 1"[auqaf] relating to any
part of the State and published after the
commencement of this Act no such application shall
be entertained after the expiry of one year from the
date of publication of the list of 12 [auqaf]; and
(b) in the case of the list of 13[auqaf] relating to any
part of the State and published at any time within a
period of one year immediately preceding the
commencement of this Act, such an application may
be entertained by Tribunal within the period of one
year from such commencement:
Provided further that where any such question has
been heard and finally decided by a Civil Court in a
suit instituted before such commencement, the
Tribunal shall not reopen such question.
(2) Except where the Tribunal has no jurisdiction by
reason of the provisions of sub-section (5), no
proceeding under this section in respect of any
[waqf] shall be stayed by any Court, Tribunal or
other authority by reason only of the pendency of
any suit, application or appeal or other proceeding
arising out of any such suit, application, appeal or
other proceeding.
(3) The Chief Executive Officer shall not be made a
party to any application under sub-section (1).
(4) The list of (augaf) and where any such list is
modified in pursuance of a decision of the Tribunal
under sub-section (1), the list as so modified, shall
be final.
(5) The Tribunal shall not have jurisdiction to
determine any matter which is the subject-matter of
any suit or proceeding instituted or commenced in a
Civil Court under sub-section (1) of Section 6, before
the commencement of this Act or which is the
subject-matter of any appeal from the decree passed
before such commencement in any such suit or
proceeding or of any application for revision or
review arising out of such suit, proceeding or appeal,
as the case may be.
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(6) The Tribunal shall have the powers of
assessment of damages by unauthorised occupation
of waqf property and to penalise such unauthorised
occupants for their illegal occupation of the waqf
property and to recover the damages as arrears of
land revenue through the Collector:
Provided that whosoever, being a public servant,
fails in his lawful duty to prevent or remove an
encroachment, shall on conviction be punishable with
fine which may extend to fifteen thousand rupees for
each such offence.]"
22. Perusal of the aforesaid provisions would make
it clear should there any question with regard to the
nature of the Waqf, it is only Tribunal at the instance of
'Board', or mutawalli of the Waqf or any person aggrieved
which is competent to adjudicate the matter and none-
else. As noted above contents of the proceedings of the
meeting dated 17.06.2020 and the Note issued by the
Chairman produced at Annexure-R2 extracted
hereinabove touches upon the very aspect of the very
nature of property which in considered view of this Court
can be dealt only under Sections 6 and 7 of the Act by the
Tribunal more particularly in the absence of any power
vested with the respondent No.1-Karnataka State Board
of Waqf in recalling its order as noted above.
23. Relevant also at this juncture to refer to the
reasons assigned by the Law Committee while passing the
impugned order on the impleading application in
I.A.No.3/2021 wherein at para 17, the law committee has
held as under;
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"17. The settled principle of law relating to the
Wants that once the property is listed in the gazette
notification (List of Waqf) remain intact unless the
notification is set aside by the competent court of
law.
The order of deletion of gazette notification and
subsequent deletion of entry in the register of Waqfs
is utter illegal act on part of the then administrator
of Board, for which the present Board has initiated
action for declaring the order passed by the then
administrator as a nullity as same does not sustain in
the eyes of law".
24. Since the claims and rival claims made in this
petition as noted hereinabove would go to the root of the
question regarding the nature of the property,
continuation of proceedings by the law committee under
the guise of power delegated under Section 18 of the Act,
cannot be countenanced in view of the expressed
provisions contained under Sections 6 and 7 of the Act,
extracted hereinabove.
The point Nos. 1 to 3 are answered accordingly.
25. In that view of the matter keeping open all the
issues and the grounds to be urged by the parties, this
court is of the considered view that the respondent-
Karnataka State Board of Waqf be directed to approach
the Karnataka Wagf Tribunal by instituting the
proceedings as contemplated under the Act, within a
period of three months from the date of receipt of the
certified copy of this order."
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On a careful reading of the extracted portions of the order
passed in W.P. No.24600/2022, it becomes evident that
the Co-ordinate Bench was essentially examining the
legality of the action initiated by respondent No.1 - State
Waqf Board in issuing a show cause notice to respondent
No.5 and commencing a fresh enquiry to determine
whether the properties held by respondent No.5 were
liable to be registered or re-registered as Waqf properties.
It was this action of the Board that constrained respondent
No.5 to institute the said writ petition.
15. In the said writ proceedings, the father of the
present applicants, who had sought to participate in the
enquiry proceedings initiated by the State Waqf Board,
was arrayed as respondent No.7 at the instance of the writ
petitioner (present respondent No.5). However, the order
sheet produced by learned counsel for respondent No.5
indicates that the Co-ordinate Bench was of the opinion
that the legal representatives of respondent No.7 were not
necessary parties to the writ proceedings. This aspect
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assumes relevance, inasmuch as it demonstrates that the
lis in the writ petition was essentially between respondent
No.5 and the State Waqf Board, and not between private
inter se claimants.
16. Be that as it may, the principal question that
engaged the attention of the Co-ordinate Bench was
whether a dispute concerning the nature and character of
the properties namely, whether they constitute Waqf
properties could be adjudicated in exercise of writ
jurisdiction under Article 226 of the Constitution of India.
Having regard to the rival claims and counter-claims
touching upon the very character of the properties, the
Co-ordinate Bench was of the considered view that such
disputed questions could not be conveniently adjudicated
in writ proceedings. It was further held that the
continuation of proceedings by the Law Committee of the
Board, under the guise of delegated powers under Section
18 of the Waqf Act, 1995 could not be sustained.
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17. Accordingly, the Co-ordinate Bench opined that
if the State Waqf Board had any grievance regarding the
nature of the properties, the proper course was to
approach the Karnataka Waqf Tribunal by instituting
proceedings as contemplated under the Waqf Act.
Importantly, the liberty so reserved was specifically
directed to be exercised by respondent No.1 - Board, and
that too within a period of three months from the date of
receipt of the certified copy of the order, as is evident
from paragraph 25 of the judgment extracted supra.
18. The present applicants, however, seek to draw
sustenance from certain observations occurring in the
operative portion of the said order and contend that the
liberty granted therein enures to their benefit as well. It is
on the strength of such observations that they now
attempt to invoke the liberty reserved by the Co-ordinate
Bench to justify the belated filing of the application under
Section 83(2) of the Waqf Act, 1995 and to contend that
the period of limitation stood revived.
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19. In order to appreciate the correctness of this
submission and to ascertain whether any liberty was in
fact reserved in favour of the present applicants to
approach the Tribunal, this Court deems it apposite to
extract the operative portion of the order passed in W.P.
No.24600/2022, which reads as under:
"(1) The petition is allowed.
(2) Proceedings before the respondent No.3-law
committee of the Karnataka State Board of Auqaf,
Bengaluru, in the case No.KSBA/LCC/01/BNU/2020, dated
31.10.2022 is quashed. Any order passed thereunder
would merge with the order quashed herein, as such no
separate orders are required on the interim order that
was passed by the Law Committee in I.A.No.3/2021.
(3) Since it is Waqf Board which has initiated the
proceedings pursuant to the notice at Annexure-D this
Court has given a specific direction to Waqf Board to
approach the Tribunal.
Needless to mention any person interested in
subject Waqf may participate in the proceedings."
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A plain reading of paragraph (3) of the operative portion
extracted supra leaves no manner of doubt as to the intent
and scope of the liberty reserved by the Co-ordinate
Bench. The language employed is explicit and
unambiguous. It categorically records that "since it is Waqf
Board which has initiated the proceedings... this Court has
given a specific direction to Waqf Board to approach the
Tribunal." Thus, the direction was singular, specific and
confined to respondent No.1 - the State Waqf Board. The
beneficiary of the liberty was clearly identified and no
general or omnibus liberty was granted to all concerned.
20. The concluding clarification "Needless to
mention any person interested in subject Waqf may
participate in the proceedings" cannot, by any stretch of
interpretation, be elevated to the status of a substantive
liberty to institute independent proceedings before the
Waqf Tribunal. The expression "participate in the
proceedings" presupposes the existence of proceedings
validly instituted by the Waqf Board in terms of the
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direction issued. Participation is qualitatively distinct from
initiation. The former denotes involvement in an already
instituted lis; the latter signifies the act of setting the
adjudicatory process in motion. To conflate the two would
amount to rewriting the operative portion of the judgment
and enlarging its scope beyond what was consciously
granted by the Co-ordinate Bench. This Court is therefore
unable to accept the contention that the liberty reserved
enures to the benefit of the present applicants so as to
clothe them with an independent right to institute
proceedings in Application No.7/2025.
21. The background of the case further reinforces
this conclusion. The liberty to approach the Tribunal within
three months was expressly granted to the State Waqf
Board. However, the Board did not avail the said
opportunity within the stipulated timeline. It appears that,
upon the Board's failure to initiate proceedings, the
present applicants have sought to step in and institute
Application No.7/2025 before the Waqf Tribunal, asserting
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that the liberty granted by this Court extends to them as
well. Such an assertion, as reflected in paragraph 6 of the
affidavit filed in support of I.A. No.1/2025, is clearly
misconceived.
22. It is relevant to note that the father of the
present applicants, who had been arrayed as respondent
No.7 in W.P. No.24600/2022, expired during the pendency
of the writ proceedings. The Co-ordinate Bench was not
inclined to entertain an application for bringing his legal
representatives on record, having taken the view that they
were not necessary parties to the writ petition.
Consequently, the present applicants were never brought
on record nor permitted to defend the writ proceedings. In
such circumstances, the assertion in the affidavit that
liberty was reserved to the applicants is factually and
legally untenable.
23. Even assuming that the applicants are persons
interested in the subject Waqf and are otherwise entitled
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to initiate appropriate proceedings in their individual
capacity, they cannot circumvent the statutory bar of
limitation by invoking a liberty that was never granted to
them. If they seek to independently challenge the order
dated 26.11.1976 passed in L.C.C. No.38/1975, they are
obliged to satisfactorily explain the inordinate delay
spanning nearly five decades. The delay must be
computed from 1976 and not from the date of disposal of
W.P. No.24600/2022. The attempt to project the delay as
negligible by reckoning it from the three-month period
granted to the Waqf Board is legally impermissible.
24. The contours governing condonation of delay
under Section 5 of the Limitation Act are well settled. In
Pathapati Subba Reddy v. Special Deputy Collector
(LA)3, the Hon'ble Supreme Court has reiterated that the
law of limitation is founded on sound public policy to
ensure certainty and finality in litigation. While courts
possess discretion to condone delay upon demonstration
2024 INSC 286
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of sufficient cause, such discretion is neither automatic nor
unbridled. Inordinate delay, negligence or lack of due
diligence disentitles a party from equitable indulgence.
Similarly, in Shivamma v. Karnataka Housing Board4,
it has been held that extension of time is a matter of
judicial discretion and not a matter of right, unless
sufficient cause is convincingly established.
25. In the case on hand, the affidavit filed in
support of I.A. No.1/2025 is conspicuously silent as to the
reasons for the extraordinary delay from 1976 till the filing
of the present application. The explanation offered is
confined exclusively to the alleged liberty granted in W.P.
No.24600/2022. There is no whisper of any factual
circumstances accounting for the prolonged inaction over
several decades. This Court is therefore not inclined to
examine the applicants' claimed rights in the subject
properties at this stage, particularly when the challenge is
mounted after an inordinate lapse of nearly 50 years.
2025 INSC 1104
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26. The remote reliance placed on the proceedings
in L.C.C. No.38/1975, allegedly initiated at the instance of
the applicants' father, is equally of no assistance. Even if,
according to the applicants, some proceedings were
pending, they cannot simultaneously institute a parallel
round of litigation in respect of the same cause of action.
Such a course would be impermissible in law.
27. In that view of the matter, this Court finds that
the explanation furnished in the affidavit is wholly
misplaced and misconceived. The Waqf Tribunal was
justified in rejecting the application filed under Section 5
of the Limitation Act, 1963 and, as a logical consequence,
in dismissing Application No.7/2025 as hopelessly barred
by limitation. The judgments relied upon by learned
counsel for the applicants do not advance their case in the
factual matrix of the present matter and are clearly
distinguishable.
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28. For the foregoing reasons, this Court does not
find any illegality or serious infirmities in the order
impugned. Accordingly, points (i) and (ii) formulated by
this Court are answered in the Negative.
Finding on point No.(iii)
29. In view of the findings recorded on points (i)
and (ii), this Court proceeds to pass the following:
ORDER
The appeal is devoid of merits and accordingly,
stands dismissed.
SD/-
(SACHIN SHANKAR MAGADUM)
JUDGE
ALB
