Karnataka High Court
Mirza Ali Raza Waqf vs Karantaka Waqfs Protection on 9 September, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 02.09.2025
Pronounced on : 09.09.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CIVIL REVISION PETITION No.578 OF 2022
BETWEEN:
MIRZA ALI RAZA WAQF
NO.97, 98 AND 99
G.K.S THIMAYYA ROAD
RICHMOND ROAD
SIR MIRZA ISMAIL NAGAR
BENGALURU -560 025
REPRESENTED BY ITS MUTHAVALLI
MR. MOHAMMED ZAKI KHALEELI
... PETITIONER
(BY SRI MAHAMOOD PATEL, ADVOCATE)
AND:
1. KARNATAKA WAQFS PROTECTION
JOINT ACTION COMMITTEE REGD.
NO.2, CARIAPPA BHAVAN
RESIDENCY ROAD
BENGALURU - 560 025
REP. BY ITS GENERAL SECRETARY.
2. MR. MOHSIN ALI SHIRAZI
S/O AGA ABBAS ALI SHIRAZI
AGED ABOUT 39 YEARS
2
NO.7/3, AGA ABDULLAH STREET
RICHMOND TOWN
BENGALURU - 560 025.
3. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
3RD FLOOR, VIDHANA SOUDHA
BENGALURU - 560 001.
4. SECRETARY TO GOVERNMENT
MINORITY WELFARE DEPARTMENT
NO.206, 2ND FLOOR, VIKASA SOUDHA
BENGALURU - 560 001.
5. THE KARNATAKA STATE BOARD OF AUQAF
NO.6, CUNNINGHAM ROAD
BENGALURU - 560 052
REP. BY ITS CHIEF EXECUTIVE OFFICER.
6. M/S. EMBASSY PROPERTY PRIVATE LIMITED
NO.151, 5TH FLOOR, EMBASSY
INFANTRY ROAD, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI MUNISWAMY GOWDA H., ADVOCATE FOR R1;
SRI A.MOHAMMED TAHIR, ADVOCATE FOR R2;
SRI SPOORTHY HEGDE N., HCGP FOR R3 AND R4;
MS. SHABAHATH SULTANA, ADVOCATE FOR R5;
SRI SRINIVASA RAGHAVAN, SENIOR ADVOCATE FOR
SRI P.CHINNAPPA, ADVOCATE FOR R6)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CIVIL PROCEDURE CODE 1908, SET ASIDE THE ORDER
DATED 09.09.2022 PASSED IN APPLN.NO.20/2018 ON THE FILE OF
THE KARNATAKA WAQF TRIBUNAL BANGALORE DIVISION,
BANGALORE. ALLOWING THE PETITION FILED UNDER SUB
SECTION (1) OF SECTION 83 OF WAQF ACT 1995.
3
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.09.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question an order
dated 09-09-2022 passed by the Karnataka Waqf Tribunal ('the
Tribunal' for short) in Application No.20 of 2018, whereby order
leasing of property to the 6th respondent comes to be set aside.
2. Facts, in brief, germane are as follows: -
2.1. The petitioner is said to be the Muthawalli of the subject
Waqf property. The petitioner claims to be a Shia waqf and in terms
of waqf deed dated 6-04-1953 the petitioner waqf is said to have
been created. The property that is in the name of the waqf is what
is described as a schedule to the petition. The petitioner submits an
application on 5-05-2017 to the 5th respondent/Karnataka State
Board of Auqaf (hereinafter referred to as 'Board' for short) for
development and lease of waqf property measuring 94488 sq. ft. at
4
Richmond Road, Bengaluru. Bids were called in a manner known to
law by issuing notifications in the newspapers of each of the
language viz., Deccan Herald, Daily Salaar and Prajawani. It is the
averment in the petition that the property to be put to lease was
displayed in the notice board of major Masjids in the City of
Bengaluru. In response to the said notification, builders, developers
and individuals showed their interest and it was informed to the
Board that certain amount of tender fee is also received.
2.2. On a scrutiny of tender documents that were received,
the 5th respondent/Board submits its request to the 4th respondent/
Government seeking approval of lease of land for a period of 30
years and to permit the petitioner waqf to enter into lease
agreement with the 6th respondent. The Government grants
permission to lease out the said property in favour of the 6th
respondent for construction of commercial complex which would
give rent to the waqf. After about 18 months of the date of grant
of approval of lease, respondents 1 and 2 filed an application in
Application No.20 of 2018 before the Tribunal against the petitioner
and all others seeking to set aside the approval granted by the 4th
5
respondent and consequent entering into lease agreement. The
Tribunal, in terms of its order impugned, sets aside approval
granted by the State Government and all consequential actions.
Feeling aggrieved by the said order of the Tribunal, the petitioner
who was the 4th respondent before the Tribunal is at the doors of
this Court calling in question order passed by the Tribunal, in the
light of the fact that the order passed by the Tribunal is revisable by
this Court.
3. Heard Sri Mahamood Patel, learned counsel for the
petitioner, Sri Muniswamy Gowda H, learned counsel appearing for
respondent No.1, Sri A. Mohammed Tahir, learned counsel
appearing for respondent No.2, Sri N.Spoorthy Hegde, learned High
Court Government Pleader for respondents 3 and 4, Ms. Shabahath
Sultana, learned counsel appearing for respondent No.5 and
Sri Srinivasa Raghavan, learned senior counsel appearing for
respondent No.6.
4. The learned counsel appearing for the petitioner
Sri Mahamood Patel would submit that respondents 1 and 2 who
6
had approached the Tribunal had no locus to challenge the action of
the petitioner in entering into a lease for the purpose of generating
rents to the waqf, which is approved by the Government. The Board
was not functioning at the relevant point in time. An Administrator
was appointed in terms of Waqf Act, 1995 (hereinafter referred to
as 'the Act' for short) who has sought permission from the State
Government and only after the approval was granted, the lease was
entered into. It is, therefore, the action of entering into lease is in
terms of law and cannot be found fault with. The Tribunal glossed
over the issue with regard to respondents 1 and 2 fitting into the
definition of 'interested person' under the Act. If they had no locus
to challenge, the matter could not have been heard on its merits.
5.1. Per contra, the learned counsel Sri A.Mohammed Tahir
appearing for respondents 1 and 2/applicants before the Tribunal
would vehemently contend that the 1st applicant/ respondent No.1
is the Karnataka Waqfs Protection Joint Action Committee. It has
filed several cases for protection of waqf property in the State of
Karnataka. It is the interested person in terms of the Act, as
respondents 1 and 2 are interested in the protection of waqfs. The
7
learned counsel would submit that the Administrator could not have
granted lease for a period of 30 years, as it was the power of the
Board. The procedure stipulated under the Act is that, the Board
should deliberate upon the issue, resolve and recommend to the
Government and if the Government approves, the lease would
come about. At the relevant point in time, the Board of Masjid was
not functioning. Elections were yet to be held. Administrator was
appointed.
5.2. It is his submission that the Administrator should have
awaited till the Board is constituted and left the decision to the
Board. He would submit that the Government has no power to
approve under the Act. Therefore, the order of the Tribunal cannot
be interfered with, as the Administrator was admittedly appointed
to undertake day-to-day affairs of the Masjid and not enter into
leases of this kind.
6. The learned counsel representing the 5th respondent/Board
would refute the submissions of the learned counsel representing
the applicants/respondents 1 and 2 to contend that respondents 1
8
and 2 did not have any locus to challenge the action of the
Administrator of the waqf and lease is entered into only after the
Government granted its approval. When there is no Board in the
waqf and Administrator is appointed, it is the Government which
has to act on a recommendation made by the Administrator. The
recommendation made by the Administrator, in the absence of the
Board, is permissible under the Act. Therefore, the learned counsel
would sail with the petitioner in seeking to set aside the order
impugned.
7. Learned senior counsel Sri Srinivasa Raghavan appearing
for the beneficiary of the lease would contend that the applicants
admittedly have no locus. They cannot be interested persons at all.
The learned senior counsel would further contend that the
Government under the provisions of the Act does have power to
enter into lease. It cannot be said that the Government is powerless
to approve the action of the Administrator. The property is granted
on lease way back in the year 2018 and the order to set aside grant
is passed in the year 2022. The 6th respondent has invested huge
sums of money after the lease and is now left high and dry
9
pursuant to the impugned order. In all, the learned counsel for the
5th and 6th respondents would seek the order of the Tribunal be set
aside and the lease restored.
8.The afore-narrated facts and link in the chain of events are
all a matter of record. Before embarking upon consideration of the
case of the petitioner or the defense of the respondents, it is
necessary to notice certain provisions of the Act. The foundational
contention of the learned counsel for the petitioner is that
respondents 1 and 2 have no locus as they cannot be interested
persons as obtaining under the Act. Section 3 of the Waqf Act reads
as follows:
"3. Definitions.--In this Act, unless the context
otherwise requires,--
(a) "Beneficiary" means a person or object for whose
benefit a 2[waqf] is created and includes religious, pious
and charitable objects and any other objects of public
utility sanctioned by the Muslim law:
(b) "Benefit" does not include any benefit which a mutawalli
is entitled to claim solely by reason of his being such
mutawalli;
(c) "Board" means a Board of Waqf established under sub-
section (1), or as the case may be, under sub-section (2)
of section 13 and shall include a common Waqf Board
established under section 106;
10
(d) "Chief Executive Officer" means the Chief Executive
Officer appointed under sub-section (1) of section 23;
(e) "Council" means the Central 2[Waqf] Council established
under section 9;
(ee) "encroacher" means any person or institution, public or
private, occupying waqf property, in whole or part,
without the authority of law and includes a person whose
tenancy, lease or licence has expired or has been
terminated by mutawalli or the Board;
(f) "Executive Officer" means the Executive Officer
appointed by the Board under sub-section (1) of section
38;
(g) "list of auqaf" means the list of auqaf published under
sub-section (2) of section 5 or contained in the register of
auqaf maintained under section 37;
(h) "Member" means a member of the Board and includes
the Chairperson;
(i) "Mutawalli" means any person appointed, either verbally
or under any deed or instrument by which a 1[waqf] has
been created, or by a competent authority, to be the
mutawalli of a waqf and includes any person who is a
mutawalli of a 1[waqf] by virtue of any custom or who is
a naib-mutawalli, khandim, mujawar, sajjadanashin, amin
or other person appointed by a mutawalli to perform the
duties of a mutawalli and save as otherwise provided in
this Act, any person, committee or corporation for the
time being, managing or administering any 1[waqf] or
waqf property:
Provided that no member of a committee or
corporation shall be deemed to be a mutawalli unless
such member is an office-bearer of such committee or
corporation:
11
Provided further that the mutawalli shall be a
citizen of India and shall fulfil such other qualifications as
may be prescribed:
Provided also that in case a waqf has specified any
qualifications, such qualifications may be provided in the
rules as may be made by the State Government.
(j) "Net annual income", in relation to a waqf, means net
annual income determined in accordance with the
provisions of the Explanations to sub-section (1) of
section 72;
(k) "Person interested in a waqf" means any person
who is entitled to receive any pecuniary or other
benefits from the 1[waqf] and includes--
(i) any person who has a right to offer prayer or
to perform any religious rite in a mosque,
idgah, imambara,dargah, khanqah, peerkhana
and karbala, maqbara, graveyard or any other
religious institution connected with the waqf
or to participate in any religious or charitable
institution under the waqf;
(ii) the waqif and any descendant of the waqif
and the mutawalli;
(l) "Prescribed", except in Chapter III, means prescribed by
rules made by the State Governments;
(m) "Regulations" means the regulations made by the Board
under this Act;
(n) "Shia waqf" means a waqf governed by Shia Law;
(o) "Sunni waqf" means a waqf governed by Sunni Law;
(p) "Survey Commissioner" means the Survey
Commissioner of Waqf appointed under sub-section (1) of
section 4 and includes any Additional or Assistant Survey
Commissioners of Auqaf under sub-section (2) of section
4;
12
(q) "Tribunal", in relation to any area, means the Tribunal
constituted under sub-section (1) of section 83, having
jurisdiction in relation to that area;
(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--
(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, ShamlatDeh, JumlaMalkkan 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;
(s) "Waqf deed" means any deed or instrument by which a
waqf has been created and includes any valid subsequent
deed or instrument by which any of the terms of the
original dedication have been varied;
(t) "Waqf Fund" means a waqf fund formed under sub-
section (1) of section 77."
(Emphasis supplied)
13
Section 3(k) defines 'person interested' in waqf. In terms of Section
3(k) a person interested in a waqf to mean, any person entitled to
receive pecuniary or other benefits from the waqf and includes any
person who has a right to offer prayer or to perform any religious
rite in the mosque. The Wakf Act, 1995 undergoes an amendment
to several provisions one such amendment is to Section 3(k). The
amended provision of 2013 reads as follows:
".... .... ....
(k) "Person interested in a waqf" means any person
who is entitled to receive any pecuniary or other
benefits from the 1[waqf] and includes--
(i) any person who has a right to offer prayer or to
perform any religious rite in a mosque, idgah,
imambara,dargah, khanqah, peerkhana and
karbala, maqbara, graveyard or any other religious
institution connected with the waqf or to
participate in any religious or charitable institution
under the waqf;
(ii) the waqif and any descendant of the waqif and the
mutawalli; "
(Emphasis supplied)
Section 3(k) defines a person interested in a waqf to mean any
person who is entitled to receive any pecuniary or benefits from the
waqf and includes any person who has right to offer prayer or to
perform any religious rite in a mosque or should be a descendant of
14
the waqf or muthawalli. The purport of Section 3(k) supra would be
a person who has a right to offer prayer in the waqf, right to
perform any religious rites in the waqf, right to offer or to perform
any religious rites in any religious institution connected with the
waqf.
9. The learned counsel for the applicants before the Tribunal
viz., respondents 1 and 2 herein places reliance upon a judgment of
the coordinate Bench of this Court interpreting 'person interested'
on the definition as found in Section 3(k) of the Act.
9.1. A coordinate Bench in the case of ASTHAN-E-KHADRI
TRUST v. KARNATAKA STATE BOARD OF WAKFS1 has held as
follows:
".... .... ....
14. This definition is wide enough to include not
only persons entitled to any financial benefit but also
other benefits. It includes worshippers and persons
entitled to perform any religious rites or to participate in
any religious or charitable institution under the Wakf. The
Trustees or Muthavallis and the descendant of the Wakf
and the Muthavalli is also covered by the definition. It
seems to me, a person becomes a 'person interested'
1
2000 SCC OnLine Kar 103
15
even if a person claims that he is the descendant of the
Wakf and the Muthavalli. But the question would be whether
such a person requires to be issued with notice of enquiry by
the Board before exercising its powers under Section 65 of the
Act. I will answer this a little later."
(Emphasis supplied)
The learned Judge was following the judgment of the Apex Court in
the case of BOARD OF MUSLIM WAKFS v. RADHA KISHAN2
wherein the Apex Court has held as follows:
".... .... ....
32. In the present case, the Respondents 1 and 2 who
are non-Muslims, contended that they are outside the scope of
sub-section (1) of Section 6, and consequently, they have no
right to file the suit contemplated by that sub-section and,
therefore, the list of wakfs published by the Board of Wakfs
under sub-section (2) of Section 5 cannot be final and
conclusive against them under sub-section (4) of Section 6. It
was urged that Respondents 1 and 2 were wholly outside the
purview of sub-section (1) of Section 6 and they must,
therefore, necessarily fall outside the scope of the enquiry
envisaged by sub-section (1) of Section 4, as the provisions
contained in Sections 4, 5 and 6 form part of an integrated
scheme. The question that arises for consideration,
therefore, is as to who are the parties that could be taken
to be concerned in a proceeding under sub-section (1) of
Section 6 of the Act, and whether the list published under
sub-section (2) of Section 5 declaring certain property to
be wakf property, would bind a person who is neither a
mutawalli nor a person interested in the wakf.
33. The answer to these questions must turn on the
true meaning and construction of the word "therein" in
the expression "any person interested therein" appearing
in sub-section (1) of Section 6. In order to understand
2
(1979) 2 SCC 468
16
the meaning of the word "therein" in our view, it is
necessary to refer to the preceding words 'the Board or
the mutawalli of the wakf'. The word 'therein' must
necessarily refer to the "wakf" which immediately
precedes it. It cannot refer to the "wakf property". Sub-
section (1) of Section 6 enumerates the persons who can
file suits and also the questions in respect of which such
suits can be filed. In enumerating the persons who are
empowered to file suits under this provision, only the
Board, the mutawalli of the wakf, and "any person
interested therein", thereby necessarily meaning any
person interested in the wakf, are listed. It should be
borne in mind that the Act deals with wakfs, its
institutions and its properties. It would, therefore, be
logical and reasonable to infer that its provisions
empower only those who are interested in the wakfs, to
institute suits.
34. In dealing with the question, the High Court
observes:
"In our opinion, the words 'any person interested
therein' appearing in sub-section (1) of Section 6 mean no
more than a person interested in a wakf as defined in clause
(h) of Section 3 of the Act
....
It is urged by learned Counsel for the petitioners that
the legislature has not used in Section 6(1) the words 'any
person interested in a wakf' and, therefore, this meaning
should not be given to the words 'any person interested
therein'. This argument is not tenable because the words 'any
person interested therein' appear soon after 'the mutawalli of
the wakf' and therefore the word therein' has been used to
avoid repetition of the words 'in the wakf' and not to extend
the scope of the section to persons who fall outside the scope
of the words 'person interested in the wakf'. The purpose of
Section 6 is to confine the dispute between the Wakf Board, the
mutawalli and a person interested in the wakf."
That, in our opinion, is the right construction.
35. 'We are fortified in that view by the decision of this
Court in Sirajul Haq Khan v. Sunni Central Board of Wakf.
U.P. [AIR 1959 SC 198 : 1959 SCR 1287] . While construing
Section 5(2) of the United Provinces Muslims Wakf Act,
1936, this Court interpreted the expression "any person
17
interested in a wakf as meaning" any person interested in
what is held to be a wakf that is, in the dedication of a
property for a pious, religious or charitable purpose. It will
be noticed that sub-section (1) of Section 6 of the Act is based
on sub-section (2) of Section 5 of the United Provinces Muslims
Wakf Act, 1936, which runs thus:
"The mutawalli of a wakf or any person
interested in a wakf or a Central Board may bring a
suit in a civil court of competent jurisdiction for a
declaration that any transaction held by the
Commissioner of Wakfs to be a wakf is not a wakf or
any transaction held or assumed by him not to be a
wakf, or that a wakf held by him to pertain to a
particular sect does not belong to that sect, or that
any wakf reported by such Commissioner as being
subject to the provisions of this Act is exempted
under Section 2, or that any wakf held by him to be so
exempted is subject to this Act."
The proviso to that section prescribed the period of one year's
limitation. as here to a suit by a mutawalli or a person
interested in the wakf.
36. The two provisions are practically similar in content
except that the language of the main enacting part has been
altered in sub-section (1) of Section 6 of the present Act and
put in a proper form. In redrafting the section, the sequence of
the different clauses has been changed, therefore, for the
expression "any person interested in a wakf" the legislature had
to use the expression "any person interested therein". The word
"therein" appearing in sub-section (1) of Section 6 must,
therefore, mean "any person interested in a wakf" as defined in
Section 3(h). The object of sub-section (1) of Section 6 is to
narrow down the dispute between the Board of Wakfs, the
mutawalli and the person interested in the wakf, as defined in
Section 3(h).
37. In this context, the scope of Section 6 was examined
by the High Court and it observed:
"The purpose of Section 6 is to confine the dispute
between the Wakf Board, the mutawalli and a person
interested in the wakf. In other words, if there is a dispute
18
whether a particular property is a wakf property or not, or
whether a wakf is a Shia wakf or a Sunni wakf, then the
Board or the mutawalli of the wakf or a person interested in
the wakf as defined in Section 3 may institute suit in a civil
court of competent jurisdiction for the decision of the
question. They can file such a suit within one year of the
date of the publication of the list of wakfs and if no such suit
is filed, the list would be final and conclusive between them.
The very object of the Wakf Act is to provide for
better administration and supervision of wakfs and the
Board has been given powers of superintendence over all
wakfs which vest in the Board. This provision seems to have
been made in order to avoid prolongation of triangular
disputes between the Wakf Board, the mutawalli and a
person interested in the wakf who would be a person of the
same community. It could never have been the intention of
the legislature to cast a cloud on the right, title or interest
of persons who are not Muslims. That is, if a person who is
non-Muslim whether he be a Christian, a Hindu, a Sikh, a
Parsi or of any other religious denomination and if he is in
possession of a certain property his right, title and interest
cannot be put in jeopardy simply because that property is
included in the list published under sub-section (2) of
Section 5.
The Legislature could not have meant that he should
be driven to file a suit in a civil court for declaration of his
title simply because the property in his possession is
included in the list. Similarly, the legislature could not have
meant to curtail the period of limitation available to him
under the Limitation Act and to provide that he must file a
suit within a year or the list would be final and conclusive
against him. In our opinion, sub-section (4) makes the list
final and conclusive only between the Wakf Board, the
mutawalli and the person interested in the wakf as defined
in Section 3 and to no other person."
(Emphasis supplied)
Several other High Courts have considered the phrase 'person
interested' interpreting Section 3(k) of the Act.
19
9.2. The High Court of Bombay in a judgment rendered in the
case of SHAIKH AFTAB AHMED v. MAZAHAR KHAN3 has held as
follows:
"9. No doubt, Section 3(k) of the act defines
"person interested" and the definition is wide enough to
cover any person who professes 'Islam' who can file the
suit or proceeding in respect of waqf property but having
regard to the object of Waqf Act to protect Waqf
property, the moot question arises as to whether even
such person can be permitted to abuse provision of Waqf
Act, in order to protect his own vested interest. It would,
therefore, be duty of Tribunal to ascertain first as to
whether the suit or proceeding is aimed at protection of
property of Waqf or to sub-serve plaintiff interest. It is
only after such satisfaction Tribunal shall proceed to
entertain proceeding filed by individual, who is neither
representing Waqf Board or Mutawalli."
(Emphasis supplied)
The Bombay High Court holds that, no doubt Section 3(k) of the Act
defines 'person interested' and the definition is wide enough to
cover any person who professes 'Islam', who can file the suit or
proceeding in respect of wakf property is the moot question and
whether any person can be permitted to abuse the provisions of the
Wakf Act in order to protect his own interest? The Court holds that
it is the duty of the Tribunal to ascertain first as to whether the suit
or proceeding is aimed at protection of property of the wakf or to
3
C.R.A.No.37 of 2011 decided on 18-04-2023
20
sub-serve plaintiff's interest. Only after such satisfaction, the
Tribunal should entertain the proceedings filed by an individual who
is neither representing the Wakf Board nor muthawalli. The order of
the Tribunal questioned therein was set aside on the score that the
Tribunal did not answer as to whether the plaintiff therein came
within the umbrella of the definition 'person interested'.
9.3. A Division Bench of the High Court of Kerala, again in the
case of KUNHIMUHAMMED v. PALAKKOTTU ISSATHUL ISLAM
SANGAM4 has held as follows:
"35. Section 3(k) of the Act defines "person
interested in a waqf to mean any person who is entitled
to receive any pecuniary or other benefits from the waqf
and includes (i) any person who has a right to offer
prayer or to perform any religious rite in a mosque,
idgah, imambara, dargah, khanqah, peerkhana and
karbala, maqbara, graveyard or any other religious
institution connected with the waqf or to participate in
any religious or charitable institution under the waqf; (ii)
the waqif and any descendant of the waqif and the
mutawalli. As seen from Section 70, any person interested in a
waqf may apply to the Board supported by an affidavit to
institute an inquiry relating to the administration of the waqf
and if the Board is satisfied that there are reasonable grounds
for believing that the affairs of the waqf are being mismanaged,
it shall take such action thereon as it thinks fit
36. Section 83 of the Act deals with the constitution of
Tribunals, and other related matter. Sub-section (2) thereof
4
MANU/KE/0893/2016
21
mandates that any mutawalli or a 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 determining any dispute, question or other matter relating to
the waqf.
37. From the above statutory scheme, these propositions
emerge: (1) a person interested in a waqf may apply to the
Board to institute an inquiry relating to the administration of the
waqf; (2) a person interested in a waqf or any other person
aggrieved may apply to the Tribunal for determining any
dispute, question or other matter relating to the waqf; (3) any
person can be said to be a person interested in a waqf provided
that he is entitled to receive any pecuniary or other benefits
from the waqf; and (4) the receiving benefits may include a
right to offer prayer or to perform any religious rite in a
mosque, etc.
Persons affected & Persons Interested:
38. We may note the semantic difference between a
person affected and a person interested, A person
affected has a claim stronger than that of a person
interested in seeking redressal in a Court of law, for the
interest of a person has many shades from core to
penumbral. An affected person ex debito justitiae gets
the right to redressal; the right to judicial remedy needs
no express conferment. On the other hand, a person
interested can be, for example, a person who has
acquired an interest after the cause of action has arisen
or after the commencement of the lis -- a case in point
being a lis pendens purchaser. For such person, the
principle of ex debito justitiae does not apply. We can,
nevertheless, avoid further polemics on the semantic
shades concerning 'person interested' if we acknowledge
that Section 83 of the Act has put both the person
affected and the person interested on the same
pedestal."
(Emphasis supplied)
22
The Division Bench holds that there is vast difference between
person affected and a person interested. A person affected has a
claim stronger than a person interested in seeking redressal in a
Court of law, for the interest of a person has many shades. One
who claims semantic shades cannot be person interested. The
Division Bench holds that the definition is clear that only four kinds
of persons can be 'person interested.' They are the ones found in
the provision itself.
9.4. The High Court of Allahabad in the case of C/M WAKF
MASJID v. WAQF TRIBUNAL, U.P.5 has held as follows:
"8. For the purposes of maintaining any proceeding
before the waqf tribunal in terms of Section 83(2) of the Waqf
Act of 1995, a person should either be a mutawalli, a person
interested in a waqf or any other person aggrieved by an order
made under the Act. Admittedly at the time of filing of
proceedings, revisionist was a mutawalli. Question as such
requiring adjudication is whether the revisionist would also
come within definition of a person interested in a waqf as well
as any other person aggrieved by order made under the Act?
9. For the purposes of determination of aforesaid
question, it is necessary to advert to definition of 'a person
interested in a waqf1 as defined under Section 3(k) of the Act,
1995 which is as follows:--
5
2023 SCC OnLine All. 4505
23
"3(k) "person interested in a [wakf]" means any
person who is entitled to receive any pecuniary or other
benefits from the [wakf]and includes--
(i) any person who has a right to [offer prayer] or to
perform any religious rite in a mosque, idgah,
imambara, dargah,[khanqah, peerkhana and
Karbala], maqbara, graveyard or any other
religious institution connected with the [wakf] or to
participate in any religious or charitable institution
under the [wakf];
(ii) the [wakif] and any descendant of the [wakif] and
the mutawalli;"
10. Evidently a person interested in a waqf is any
person who is entitled to receive any pecuniary or other
benefits from the waqf. The provision is inclusive of any
person who has a right to offer prayer or perform any
religious rite in a religious place as defined thereunder.
11. It is not denied by learned counsel for opposite
party that the revisionist has a right to offer prayers or to
perform religious rite in the religious institution for which
the waqf has been created but submits that the aforesaid
right would be restricted to only those persons who
receive any pecuniary or other benefits of the waqf only
and as such would exclude the revisionist who after
removal from the post of Mutawalli/Secretary of the
managing committee of the waqf does not derive any
pecuniary or other benefits of the waqf. The aforesaid
submission of learned counsel for opposite party No. 4
and 5, though attractive at first glance, does not hold any
good ground in view of definition clause itself which is an
inclusion clause and not an exclusion clause and is
therefore required to be seen ejusdem generis with the
primary clause whereby a person interested in a waqf has
been defined to be any person entitled to receive any
pecuniary or other benefits from the waqf. Such other
benefits have been explained as an inclusionary clause to
include a person who has a right to offer prayer or to
perform any religious rite in the religious institution
concerned. Once it is admitted that petitioner even
without holding the post of Mutawalli or Secretary of the
managing committee of the waqf has a right to offer
24
prayers or to perform any religious rite in the religious
institution of the waqf, the revisionist would come within
definition of a person interested in the waqf as defined
under Section 3(k) of the Act, 1995.
12. With regard to an inclusionary clause in a statutory
provision, Hon'ble Supreme Court in the cases of P.
Kasilingam v. P.S.G. College of Technology, (1995) 2 Supp SCC
348 and N.D.P. Namboodripad v. Union of India, (2007) 4 SCC
502 has held as follows:--
P. Kasilingam v. P.S.G. College of Technology
"A particular expression is often defined by the
Legislature by using the word 'means' or the word
'includes'. Sometimes the words 'means and includes'
are used. The use of the word 'means' indicate that
"definition is a hard-and-fast definition and no other
meaning can be assigned to the expression that is put
down in definition. "[See Gough v. Gough, [1891] 2
Q.B. 665; Punjab Land Development and Reclamation
Corpn. Ltd. v. Presiding Officer. Labour Court, ((1990)
3 SCC 682,717]. The word 'includes' when used,
enlarges the meaning of the expression defined so as
to comprehend not only such things as they signify
according to their natural import but also those
things which the clause declares that they shall
include. The words 'means and includes', on the other
hand, indicate "an exhaustive explanation of the
meaning which, for the purposes of the Act, must
invariably be attached to these words or
expressions."
N.D.P. Namboodripad v. Union of India
"19. Justice G.P. Singh in his treatise Principles
of Statutory Interpretation (10th Edn., 2006), has
noticed that where a word defined is declared to
"include" such and such, the definition is prima facie
extensive, but the word "include" when used while
defining a word or expression, may also be construed
as equivalent to "mean and include" in which event, it
will afford an exhaustive explanation of the meaning
which for the purposes of the Act must invariably be
attached to the word or expression [vide pp. 173 and
175 referring to and relying on the decisions of this
Court in Municipal Council, Raipur v. State of M.P.
25
[(1969) 2 SCC 582 : AIR 1970 SC 1923], South
Gujarat Roofing Tiles Manufacturers Assn. v. State of
Gujarat [(1976) 4 SCC 601 : 1977 SCC (L&S) 15 : AIR
1977 SC 90], Hindustan Aluminium Corpn. v. State of
U.P. [(1981) 3 SCC 578 : 1981 SCC (Tax) 280 : AIR
1981 SC 1649] and Reserve Bank of India v. Peerless
General Finance & Investment Co. Ltd. [(1987) 1 SCC
424] It is, therefore, evident that the word "includes"
can be used in interpretation clauses either generally
in order to enlarge the meaning of any word or
phrase occurring in the body of a statute, or in the
normal standard sense, to mean "comprises" or
"consists of" or "means and includes" depending on
the context."
13. Upon applicability of aforesaid judgment, it is
evident that the inclusionary clause would directly relate
to other benefits being derived from the waqf by any
person who is entitled to such benefit and would
therefore come within definition of a person interested in
a waqf.
14. Furthermore under Section 83(2) of the Act 1995, an
application for the purposes of determination of any dispute,
question or other matter relating to waqf is also maintainable at
the behest of 'any other person aggrieved by and order made
under this Act or Rules'."
(Emphasis supplied)
The High Court holds that inclusionary clause under Section 3(k)
would directly relate to other benefits being derived from the waqf
by any person who is entitled to such benefit and would therefore
become person interested in the waqf which is different from person
aggrieved.
26
10. On a plain reading of the judgments of this Court and that
of other High Courts, it becomes necessary to notice the pleading
and the order of the Tribunal on the issue of locus of the applicants.
The Tribunal formulates the following points for determination:
"Point No.1:Whether the applicant proves that the order dated
17-07-2017 passed by the 2nd respondent is illegal and in
contravention of Waqf Act 1995 and Waqf Rules and Waqf
Properties Lease Rules, 2014?
Point No.2: Whether the applicant proves that the order passed
by the 3rd respondent in KTW/MSC/05/BNU/2017-18 is illegal
and in contravention of Waqf Act 1995 and Waqf Rules.
Point No.3: Whether the application filed is well within the
time?
Point No.4: Whether the Respondent proves that the
applicants have no locus-standi to file this application?
Point No.5: Whether the applicant is entitled for the relief
sought for?
Point No.6: What order?"
(Emphasis added)
Point No.4 is whether the respondent, present petitioner or other
respondents prove that the applicants have no locus standi to file
the application. All the points are considered together and with
regard to locus the Tribunal holds as follows:'
"25) At the first instance both the Respondents have
questioned the locus-standi of the applicants in filing this
27
application. According to the Respondents the applicant have no
locus-standi to file the present application. The present
applicant has filed W.P. 51194/2017 before the Hon'ble High
Court of Karnataka has directed to approach the Tribunal for
redressal of grievence. Both the Respondents have relied on
decision in the case of
Madrasa Ahle Sunnath Bahrul Uloon VS State of
Andhra Pradesh (2004 (2) ALT 647).
In the said decision locus-standi of the petitioner was
questioned and it is decided that the petitioner is not connected
with the case and W.P came to be dismissed.
26) In the present case the applicants has filed W.P.
before the Hon'ble High Court of Karnataka and he has
approached this Tribunal as per direction of Hon'ble High Court
of Karnataka. Moreover, the applicant is Karnataka Waqf
Protection Joint Action Committee (Regd) and another person
Mr. Mohsin Ali Shirazi resident of Richmond Town is a co-
Applicant. in view of the provision of 3(k) the applicants are
interested persons. The Respondent cannot question the locus-
standi of the applicant in filing the present application. Learned
counsel appearing for respondent has relied on decision of;
Jasbhai Motibhai Desai VS Roshan Kumar, Haji Bashir Ahmed
(1976) 1 SCC 671 S
27) That the applicant is not an aggrieved person or
interested person. The Applicant did not fall in the
category of interested or aggrieved person, the
application is not maintainable. The Applicants are
termed as Busy bodies as Meddlesome Interloper and
they have no right and application is not maintainable.
28) The applicant have questioned the validity of
the sanction of lease passed by the Respondent no.2 and
3 sanctioning the lease in favour of Respondent No.5. in
view of the provisions of Under Section 3(k) person
interested in the Waqf means;
28
Section 3(k) "the person interested in Wakf means any
person who is enttield to receive any pecuniary or other
benefits from the wakf and includes --
(i) Any person who has a right to workship or to perform any
religious rite in a mosque, idgah, imambara, dargah,
khangah, maqbara, graveyard or any other religious
institution connected with the wakf or to participate in any
religious or charitable institutions under the wakf.
(ii) The wakif and any descendant of the wakif and the
mutawalli;
29) Admittedly, the Waqf Institution is Shia waqf
and notification in the gazette is also not disputed. These
applicants are interested in Waqf Institution. They cannot
be termed as busy bodies and meddlesome interloper the
applicants are interested person, they have seriously
challenged the grant of lease in favour of Respondent
No.5 that the lease sanctioned by the administrator is
opposed to provisions of law and the Waqf Rules relating
therein. Therefore they are interested persons from the
Waqf Institution concerned. The contention of the
Respondent No.4 and 5 that they no locus-standi and
they are interested person cannot be accepted."
(Emphasis added)
The Tribunal holds that the applicants cannot be termed to be busy
bodies or meddlesome interlopers and they are interested persons
in the waqf. The Tribunal glosses over the issue relying upon certain
judgements of the Apex Court which did not deal with the purport
of Section 3(k) of the Act. The order of the Tribunal is thus
contrary to the interpretation of Section 3(k) of the Act.
Respondents 1 and 2 cannot be termed to be persons interested in
29
the waqf. Therefore, the threshold bar of the applicants having
locus has been erroneously considered and answered by the
Tribunal.
11. What remains is, the action to grant on an approval of the
State Government. It is not in dispute that the term of the
Committee that was holding the waqf stood expired, on expiry of 5
years, on 19-08-2016. The State Government appoints
Administrator for the 5th respondent/Board with effect from
20-08-2016 for a period of 6 months or until the composition of
regular Board. The Government then in terms of its order dated
22-02-2017 extends the term of the Administrator until further
orders. The Administrator communicates to the Government with
regard to the proposal of generating funds to the waqf on
05-05-2017. The gist of the offer made by the developers and the
amount that could be generated to the waqf are as follows:
30
As decided in the meeting the letter No.MARW/EC/001/17-18
dated 06/04/2017 addressed to The Chairman, M/S. EMBASSY
PROPERTY DEVLOPMENTS (PVT) LTD Bengaluru, and
handed over by the Muthavallis on the same day under the
acknowledgement. (Enclosed Annexure-R)
On 18-04-2017, the final bidder M/S. EMBASSY PROPERTY
DEVLOPMENTS (PVT) LTD had given their letter of
acceptance/consent along with cheque bearing No. 873468
dated 18-04-2017 of Rs. 50,00,000/-(Rupees Fifty Lakhs)
Enclosed: Annexure - (Letter as -(S) & Cheque as (S-1).
The Sum of Rs. 50,00,000/-(Rupees Fifty Lakhs only) has
been deposited in STATE BANK OF INDIA, Langford Town
branch, Bengaluru-560025 in Saving Bank Account
No.54010222908 of MIRZA ALI RAZA WAKF, till The
Karnataka State Board of Wakfs approval and thereafter the
Government of Karnataka. (Encl: Annex-(T)(T-1)).
We herewith enclosed 39 (Thirty Nine) documents in total 50
(Fifty) pages.
Thanking You, in anticipation of your early approval of the
above proposal.
Yours faithfully
31
For MIRZA ALI RAZA WAKF
Sd/-
(MIR SAJJAD HUSAIN)
(Hon. Secretary)"
The Board then communicates to the Secretary to Government in
the Department of Minority Welfare, Haj & Waqf seeking approval
to enter into the lease. The communication dated 09-06-2017
reads as follows:
"The Honorary Secretary, Mirza Ali Raza Waqf in his
representation refere to at Sl.No.(1) above has sought for
permission of the Government of Karnataka as per Rule 17(1) of
Waqf Properties Lease Rules, 2014 to lease the property bearing
No.97, 98 & 99 situated at Richmond Road, Bengaluru
measuring 94488.05 sq.fts. to M/s. EMBASSY PROPERTY PVT.
LTD., for a period of thirty (30) years for construction of
commercial & office complex.
The said Waqf has been registered with the Karnataka
State Board of Auqaf. The properties of Auqaf, in notification
No.MBW/19(1)/1964, dated: 07-06-1965 at Sl.No.252 has been
published in the official Gazette. The Mutawallies have brought
to the notice of the Board in their letter No.MAR/2016-
17/KSBW/03, dated:09-05-2016 that the area of the Waqf is
being developed. The Mutawallies have called for bids in
the newspapers viz. Deccan Herald, Daily Salar & Praja
Vani on 13-05-2016. Besides this the notification of
calling for bids has been affixed on the notice boards of
the Major Masajids of Bengaluru City and conspicuous
public places indicating the last date as 31-08-2016.
In response to the public notification the bids were
received from the following builders:
32
6. Brigade Group.
7. Embassy Developers. (Mr. Ashley Roque)
8. MFAR Holders/Developers.
9. Nacons.
10. India Builders Pvt. Ltd (Mr. U.T. Zulfikhar)
The Muthawallies handed over these bids to the
financial experts viz., Singhvi, Devraj & Uni for a
commercial evaluation. They have discussed with the
three qualified bidders. Based on the revaluation of bids
the Mutawallies held the third round of deliberations the
Mutawallies unanimously resolved to select the bid
offered by M/s. EMBASSY PROPERTY PVT. LTD. as
successful bidder and a letter of intimation was given to
deposit a some of Rs.50.00 lakhs with letter of
acceptance and to keep open the validity offer till the
approval of the Karnataka State Board of Auqaf and Govt.
of Karnataka. The gist of the offer is as detailed below:
The term of the lease would be for a period of thirty (30)
years which is permissible under Waqf Properties Lease Rules,
2014. The purpose of utilization is commercial and construction
of office complexes. This can be permitted for uses permissible
under Sharia. A non refundable deposit of Rs. 10.00 Crore is to
be paid to the Waqf. The Waqf may utilize it as corpus of the
Waqf. The Waqf may purchase land out of this amount and
register it in the Karnataka State Board of Auqaf as Waqf
Property. The assured built area would be 2,40,000 sq.fts., out
of which 72,000 sq.fts., will be utilized by the Waqf. The
projected revenue as per market rental value is Rs.75/- per
sq.ft. The ground rent payable during the pre construction
period would be Rs.2.00 lakhs per month and for the period
during construction post signing of agreement Rs.2.50 lakhs per
month. Besides this the bidder has agreed to pay arrears of
Corporation taxes up to a maximum of Rs.10.00 lakhs, 50% of
share in all revenues that shall accrue except for maintenance
income and co branding of the projects under the banner of
Mirza Ali Raza Waqf.
The deposit amount received has been deposited as term
deposit in State Bank of India, Langford Town Branch,
Bengaluru in the saving bank account of Mirza Ali Raza Waqf till
33
the approval of Karnataka State Board of Auqaf ard Govt. of
Karnataka.
The proposals were examined in detail the Hon'ble
Administrator of Karnataka State Board of Auqaf has given
approval on 06-06-2017 subject to following conditions and to
submit the proposal to the Secretary to Govt., Minority Welfare,
Haj & Waqf Dept., seeking necessary approval under Section
17(1) of Waqf Properties Lease Rules, 2014:
• That the agreement shall be registered in the office of the
jurisdictional Sub-Registrar which should be in
consonance with the conditions laid down in the Waqf
Properties Lease Rules, 2014.
• The transaction as savings Bank Account or fixed deposits
shall be made in one of the Nationalized Banks. The
interest accrued there from shall be
• utilized in a transparent manner for the needs of the
destitute of Asna Asharia Sect without expectiong the
reward.
• All constructions and renovations shall be done following
the provisions of Town Planning Act and Karnataka Urban
Development Rules and Regulations.
• The utilization of income shall be as per the criteria's laid
down in the Deed of Waqf executed on 6th April 1953 by
the Waqif.
• The Waqf should regularly get the accounts audited and
the returns prescribed under the Waqf Act, 1995 and
Rules made there under shall be in time.
• The builder shall use the standard material (ISI Mark) for
construction and complete the construction within the
stipulated period.
• The officers of the Board will have access during
construction and after construction for inspection
purposes.
34
• For violation of the aforesaid conditions and the
conditions laid down in Waqf Properties Lease Rules, 2014
the lessor has right to terminate the lease as provided
under Rule 23 (iv) of Waqf Properties Lease Rules, 2014.
Necessary permission may kindly by accorded as
expeditiously as possible so as to enable the Waqf to enter in to
the lease agreement. The proposals of the Waqf are enclosed.
Yours faithfully,
Sd/-
Chief Executive Officer,
Karnataka State Board of Auqaf,
Bengaluru.
Copy to the Honoray Secretary, Mirza Ali Raza Waqf, No.97, 98
& 99, Richmond Road, Bengaluru-560025 for information."
(Emphasis added)
The Government, in the aforesaid department, communicates its
approval on 17-07-2017. The approval reads as follows:
"From
The Secretary to Government
Minority Welfare, Haj & Waqf Department,
Bangalore.
To,
The Chief Executive Officer
Karnataka State Board of Auqaf
Cunningham Road,
Bangalore.
Sir,
Sub: Approval of lease of land belonging to Mirza Ali
Raza Wakf for a period of Thirty (30) years as
per Section 17(1) of Wakf Properties Lease
35
Rules, 2014 to M/s EMBASSY PROPERTY PVT.
LTD.-reg
Ref: Your letter No. KTW/MSC/05/BNU/2017-18,
dated:09-06-2017.
*****
With reference to the subject cited above, I am directed
to convey the approval of Government to lease out the Wakf
property bearing No.97-98 & 99 situated at Richmond Road,
Bangalore, belonging to Mirza Ali Raza Waqf, measuring
94488.05 Sq.ft. to M/s, EMBASSY PROPERTY PVT. LTD., for a
period of 30 (thirty) years for the construction of commercial
and office complex on the following terms and conditions as per
Rule 17(1) of the Wakf properties lease Rules 2014.
M/s, EMBASSY PROPERTY PVT. LTD., who is the higher
and successful bidder has agreed to deposit a sum of Rs.50.00
Lakhs and has given his acceptance for the development of the
Wakf property belongs to Mirza Ali Raza Waqf, Richmond Road,
Banglore. The gist of his offer is as indicated below.
36
The terms and conditions of the lease is as follows:-
1. That the agreement shall be registered in the office of the
Jurisdictional Sub-Registrar which should be in consonance
with the conditions laid down in the Wakf Properties Lease
Rules 2014.
2. The transaction as savings Bank Account or fixed deposits
shall be made in one of the Nationalized Banks. The
interest accrued there from shall be utilised in transparent
manner for the needs of the destitute of Asna Asharia Sect
without expecting the reward.
3. All constructions and renovations shall be done following
the provisions of Town Planning Act & Karnataka Urban
Development Rules and Regulations.
4. The Utilization of income shall be as per the criteria's laid
down in Deed of Wakf executed on 6th April 1953 by the
Waqif.
5. The Wakf should regularly get the accounts audited and the
returns prescribed under the Wakf Act, 1995 and Rules
made there under shall be submitted in time.
6. The builder shall use the standard material (ISI Mark) for
construction and complete the construction within the
stipulated period
7. The Officers of the Board will have access during
construction and after construction for inspection purposes.
8. The final lease agreement be sent to the Government for
scrutiny through an independent advocate for its legal and
financial implications.
9. For violation of the aforesaid conditions and the conditions
laid down in Wakf properties Lease Rules, 2014 the lesser
has right to provided terminate the lease as provided under
Rule 23(iv) of Wakf Properties Lease Rules, 2014."
37
The lease is directed to be entered into by an order of the
waqf which reads as follows:
"PREAMBLE:
The Honorary Secretary, Mirza Ali Raza Waqf in his
representation refered to at Sl.No.(1) above has sought for
permission of the Government of Karnataka as per Rule 17(1) of
Waqf Properties Lease Rules, 2014 to lease the property bearing
No.97, 98 & 99 situated at Richmond Road, Bengaluru
measuring 94488.05 sq.fts. M/S. EMBASSY PROPERTY PVT.
LTD., for a period of thirty (30) years for onstruction of
commercial & office complex.
The said Waqf has been registered with the Karnataka
State Board of Auqaf. The properties of Auqaf, in notification No.
MBW/19(1)/964, dated:07-06-1965 at No.252 has been
published in the official Gazette. The Mutawallies have brought
the notice of the Board in their letter No. MARW/2017-
18/KSBW/09, dated: 05-05-2017 that the area of the Waqf is
being developed. The Mutawallies have called for bids in the
newspapers viz. Deccan Herald, Daily Solar & Praja Vani on
13-05-2016. Besides this the notification of calling for bids has
been affixed on the notice boards of the Major Masajids of
Bengaluru City and conspicuous public places indicating the last
date as 31-08-2016.
In response to the public notification the bids were
received from the wing builders:
1. Brigade Group.
2. Embassy Developers. (Mr. Ashley Roque)
3. MFAR Holders/Developers.
4. Nacons.
5. India Builders Pvt. Ltd (Mr. U.T. Zulfikhar)
The Management Committee handed over these bids to
the financial experts viz. Singhvi, Devraj & Uni for a commercial
38
evaluation. They have discussed with the three qualified
bidders. Based on the revaluation of bids the Managing
committee held the third round of deliberations and
unanimously resolved to select the bid offered by M/s. EMBASSY
PROPERTY PVT. LTD. as successful bidder and a letter of
intimation was given to deposit a some of Rs.50.00 lakhs with
letter of acceptance and to keep open the validity offer till the
approval of the Karnataka State Board of Auqaf and Govt. of
Karnataka. The, details of the offer in at shell is as detailed
below:
The term of the lease would be for a period of thirty (30)
years which is commercial and construction of office complexes.
This can be permitted for use permissible under Sharid. A non
refundable deposit of Rs. 10.00 Crore is to be paid to the Waqf.
The Waqf may utilize it as corpus of the Waqf. The Waqf may
purchase land out of this amount and register it in the
Karnataka State Board of Auqaf as Waqf Property. The assured
built area would be 2,40,000 sq.fts., out of which 72,000 sq.fts.,
will be utilized by the Waqf. The projected revenue as per
market rental value is Rs.75/- per sq.ft., The ground rent
payable during the pre construction period would be Rs.2.00
lakhs per month and for the period during construction post
signing of agreement Rs.2.50 lakhs per month. Besides this the
bidder has agreed to pay arrears of Corporation taxes up to a
maximum of Rs.10.00 lakhs, 50% of share in all revenues that
shall accrue except for maintenance income and co branding of
the projects under the banner of Mirza Ali Raza Waqf.
The deposit amount received has been deposited as term
deposit in State Bank of India, Langford Town Branch,
Bengaluru in the saving bank account of Mirza Ali Raza Waqf till
the approval of Karnataka State Board of Auqaf and Govt. of
Karnataka.
The proposals were examined in detail the Hon'ble
Administrator of Karnataka State Board of Auqaf has given
approval on 06-06-2017 subject to conditions and to submit the
proposal to the Secretary to Govt. Minority Welfare, Haj & Waqf
Dept., seeking necessary approval under Section 17(1) of Waqf
Properties Lease Rules, 2014:
39
The proposals were submitted to Government on
09.06.2017 to accord approyal. The Government in Minority
Welfare, Haj and Waqf has examined the issue and issued the
letter referred at Sl.No.(2) above according approval as per Rule
17 (1) of the Waqf Properties Lease Rules 2014 subject to the
following terms and conditions.
Hence, this Order.
ORDER NO.KTW/MSC/05/BNU/2017-18,
DATED:25.07.2017
In view of the above the Karnataka State Board of Auqaf
sanction the Lease for an area measuring 94488.05 sq.fts. in
property bearing No.97, 98 and 99 situated in Richmond Town,
Bengaluru for a period of 30 years for construction of
commercial and office complexes by the M/s EMBASSY
PROPERTY Pvt. Ltd. The Managing Committee shall enter into
the agreement in form-58 vide Rule 63 (4) of Karnataka Waqf
Rules 2017, subject to the following conditions:-
• The Lessee shall pay Rs.2.00 Lakhs per month during the
pre-construction period post and Rs.2.50 Lakhs per
month during construction period post signing of the
agreement.
• The Lessee shall pay the arrears of Corporation taxes
upto a maximum of Rs.10.00 Lakhs and proportionate
share in all revenues that shall accrue except for
maintenance income
• The Lessee shall pay a non refudable deposit of Rs.10.00
Crores to the Waqf institution which shall be the corpus of
the Waqf.
• That the agreement shall be registered in the office of the
jurisdictional Sub-Registrar which should be in
consonance with the conditions laid down in the Waqf
properties lease Rules, 2014.
• The transaction as savings Bank Account or fixed deposit
shall be made in one of the Nationalized Banks. The
interest accrued there from shall be utilized in a
40
transparent manner for the needs of the destitute of
Asma Asharia Sect without expecting the reward.
• All constructions and renovations shall be done following
the provisions of Town Planning Act & Karnataka Urban
Development Rules and Regulations.
• The utilization of income shall be as the criteria's laid
down in the Deed of Waqf executed on 6th April 1953 by
the Waqif.
• The Waqf should regularly get the accounts audited and
the returns prescribed under the Waqf Act, 1995 and
Rules made there under shall be submitted in time.
• The builder shall use the standard material (ISI Mark) for
crustruction and complete the construction within the
stipulated period.
• The officers of the Board will have access during
construction and after construction for inspection
purposes.
• The final Lease agreement be sent to the Government for
scrutiny through an independent Advocate for its legal
and financial implications
• For violation of the aforesaid conditions and the
conditions laid down in Waqf Properties Lease Rules, 2014
the lessor has right to terminate the lease as provided
under Rule 23 (iv) of Waqf Properties Lease Rules, 2014.
• All the concepts and conditions laid down in the Waqf
Properties Lease Rules shall be followed.
Sd/-
27/7
Chief Executive Officer,
Karnataka State Board of Auqaf,
Bengaluru."
41
The order refers to the proceedings taken up by issuing a
notification in three leading newspapers of three different languages
and consideration of 5 bids that were received. Out of the 5 bids,
the 6th respondent's bid was found to be responsive and was
declared as a successful bidder and approval was sought.
12. The contention or ground on which the Tribunal has set
aside the lease is that the Administrator who was appointed to run
the Board or manage the day-to-day affairs of the Board could not
have entered into the lease. It, therefore, becomes necessary to
notice the order appointing the Administrator. The order dated
19-08-2016 reads as follows:
"Sub: Appointment of Administrator to the Karnataka
State Board of Auqaf, Bangalore - reg.
Read: 1) Government Notification No. MWD 237 WES
2011, dated: 20.08.2011.
2) Letter No. KSBA/ ADM/EST/04/2016-17, dated
26-04-2016 of the CEO, KSBW Bangalore.
PREAMBLE:
The Karnataka State Board of Auqaf, Bangalore which
was constituted asper Government Notification read at (1)
above for a period of five years from the date of notification will
expire on 19-08-2016.
42
Consequent upon Amended Act No.27 of 2013 to the
Wakf Act 1995 (Central Act). The existing Karnataka Wakf Rules
1997 has to be amended suitably as per Wakf (Amendment) Act
2013. The Government of Karnataka has constituted an
Advisory Committee to draft the new Wakf Amendment Rules
2016, which will have to be vetted by the Parliamentary Affairs
and Legislature Department and has to be placed before both
the Houses of Legislature, which will consume time for finalising
the draft Karnataka Wakf (Amendment) Rules 2016.
Till the composition of the regular Wakf board, it is
decided to appoint an Administrator for day to day affairs of
Administration of the Board for a period of 6 (Six) Months
form the date of expiry of the present term of the Board i.e.,
from 20-08-2016 or until further orders.
Hence the order.
GOVERNMENT ORDER NO. MWD 120 WES 2016,
BANGALORE, DATED 19-08-2016.
In view of the above circumstances, the Government is
pleased to appoint Sri Mohammad Mohsin, IAS., Secretary to
Government, Minority Welfare Haj & Wakf Department,
Bangalore as Administrator of the Karnataka State Board of
Auqaf Bangalore for a period of 6(Six) Months with effect from
20-08-2016 or until further order whichever is earlier.
By order and in the name of the Governor of Karnataka
M.NAGARATHNA
Joint Secretary to Government,
Minority Welfare, Haj & Wakf Department."
The order of extension of the period of Administrator dated
22-2-2017 reads as follows:
"Preamble
43
Appointment of Administrator to the Karnataka State
Board of Auqaf, Bangalore as per the Government order read at
(1) above for a period of 6 months will expire on 19.02.2017.
Consequent upon amendment act no 27 of 2013 to the
Wakf Act 1995 (Central Act), the existing Karnataka Wakf Rules
1997 has to be amended suitably as per Wakf (Amendment) Act
2013. The Government of Karnataka has drafted the New Wakf
Amendment Rules, 2016 which is vetted by Parliamentary
Affairs and Legislature Department with some suitable
suggestions which has to be incorporated in the Rules and the
said draft rules has to be published in the State Gazettier for
inviting Objections and Reasons, which will consume atleast 2
months time for finalizing the Draft Wakf Amendment Rules,
2016.
Till the finalization of the Draft Wakf Rules 2016, it is
decided to extend the term of the present Administrator for day
to day affairs and administration of the Board for a period of 6
months from the date of expiry of the term of the present
Administrator ie., from 20-02-2017.
Government Order No: MWD 120 WES 2016, Bangalore
dt:22.02.2017
In view of the above circumstances, the Government is
pleased to extend the Appointment of Sri Mohammed Mohsin,
IAS., Secretary to Government, Minority Welfare, Haj and Wakf
Department, Bangalore as Administrator of the Karnataka State
Board of Auqaf, Bangalore for a period of 6 (Six) Months with
effect from 20-02-2017 or until further orders whichever is
earlier.
By Order and in the name of the
Governor of Karnataka
Sd/-
22/2/17
(M.NAGARATHNA)
Joint Secretary to Government,
Minority Welfare, Haj & Waqf Department."
44
13. Day-to-day affairs of the Board would undoubtedly mean
the protection and interest of the waqf. The Administrator is
required to perform the duties in terms of the statute. Section 32 of
the Act deals with powers and functions of the Board. It reads as
follows:
"32. Powers and functions of the Board.--(1) Subject
to any rules that may be made under this Act, the general
superintendence of all auqaf in a State shall vest in the Board
established or the State; and it shall be the duty of the Board so
to exercise its powers under this Act as to ensure that the auqaf
under its superintendence are properly maintained, controlled
and administered and the income thereof is duly applied to the
objects and for the purposes for which such auqaf were created
or intended:
Provided that in exercising its powers under this Act in
respect of any waqf, the Board shall act in conformity with the
directions of the waqif, the purposes of the waqf and any usage
or custom of the waqf sanctioned by the school of Muslim law to
which the waqf belongs.
Explanation.--For the removal of doubts, it is hereby
declared that in this sub-section, "waqf" includes a waqfin
relation to which any scheme has been made by any court of
law, whether before or after the commencement of this Act.
(2) Without prejudice to the generality of the foregoing
power, the functions of the Board shall be--
(a) to maintain a record containing information relating
to the origin, income, object and beneficiaries of
every waqf;
45
(b) to ensure that the income and other property of
auqaf are applied to the objects and for the
purposes for which such auqaf were intended or
created;
(c) to give directions for the administration of auqaf;
(d) to settle schemes of management for a waqf:
Provided that no such settlement shall be made without
giving the parties affected an opportunity of being heard;
(e) to direct--
(i) the utilisation of the surplus income of a waqf
consistent with the objects of waqf;
(ii) in what manner the income of a waqf, the objects
of which are not evident from any written
instrument, shall be utilised;
(iii) in any case where any object of waqf has ceased to
exist or has become incapable of achievement, that
so much of the income of the waqf as was
previously applied to that object shall be applied to
any other object, which shall be similar, or nearly
similar or to the original object or for the benefit of
the poor or for the purpose of promotion of
knowledge and learning in the Muslim community:
Provided that no direction shall be given under this clause
without giving the parties affected, an opportunity of being
heard.
Explanation.--For the purposes of this clause, the
powers of the Board shall be exercised--
(i) in the case of a Sunni waqf, by the Sunni members
of the Board only; and
(ii) in the case of a Shia waqf, by the Shia members of
the Board only:
46
Provided that where having regard to the number of the
Sunni or Shia members in the board and other circumstances, it
appears to the Board that the power should not be exercised by
such members only, it may co-opt such other Muslims being
Sunnis or Shias, as the case may be, as it thinks fit, to be
temporary members of the Board for exercising its powers
under this clause;
(f) to scrutinise and approve the budgets submitted by
mutawallis and to arrange for auditing of account
of auqaf;
(g) to appoint and remove mutawallis in accordance
with the provisions of this Act;
(h) to take measures for the recovery of lost properties
of any waqf;
(i) to institute and defend suits and proceedings
relating to auqaf;
(j) to sanction lease of any immovable property of a
waqf in accordance with the provisions of this Act
and the rules made thereunder:
Provided that no such sanction shall be given unless a
majority of not less than two-thirds of the members of the
Board present cast their vote in favour of such transaction:
Provided further that where no such sanction is given by
the Board, the reasons for doing so shall be recorded in writing.
(k) to administer the Waqf Fund;
(l) to call for such returns, statistics, accounts and
other information from the mutawallis with respect
to the waqf property as the Board may, from time
to time, require;
(m) to inspect, or cause inspection of, 1 [waqf]
properties, accounts, records or deeds and
documents relating thereto;
47
(n) to investigate and determine the nature and extent
of waqf and waqf property, and to cause, whenever
necessary, a survey of such waqf property;
(na) to determine or cause to be determined, in such
manner as may be specified by the Board, market
rent of the waqf land or building;
(o) generally do all such acts as may be necessary for
the control, maintenance and administra- tion of
auqaf.
(3) Where the Board has settled any scheme of
management under clause (d) or given any direction under
clause (e) of sub-section (2), any person interested in the 1
[waqf] or affected by such settlement or direction may institute
a suit in a Tribunal for setting aside such settlement or
directions and the decision of the Tribunal thereon shall be final.
(4) Where the Board is satisfied that any waqf land, which
is a waqf property, has the potential for development as an
educational institution, shopping centre, market, housing or
residential flats and the like, market, housing flats and the like,
it may serve upon the mutawalli of the concerned waqf a notice
requiring him within such time, but not less than sixty days, as
may be specified in the notice, to convey its decision whether he
is willing to execute the development works specified in the
notice.
(5) On consideration of the reply, if any, received to the
notice issued under sub-section (4), the Board, if it is satisfied
that the mutawalli is not willing or is not capable of executing
the works required to be executed in terms of the notice, it
may, 5 *** take over the property, clear it of any building or
structure thereon, which, in the opinion of the Board is
necessary for execution of the works and execute such works
from waqf funds or from the finances which may be raised on
the security of the properties of the waqf concerned, and control
and manage the properties till such time as all expenses
incurred by the Board under this section, together with interest
thereon, the expenditure on maintenance of such works and
other legitimate charges incurred on the property are recovered
from the income derived from the property:
48
Provided that the Board shall compensate annually the
mutawalli of the concerned waqf to the extent of the average
annual net income derived from the property during the three
years immediately preceding the taking over of the property by
the Board.
(6) After all the expenses as enumerated in sub-section
(5) have been recouped from the income of the developed
properties, the developed properties shall be handed over to
mutawalli of the concerned waqf.
.... .... ....
56. Restriction on power to grant lease of [waqf]
property.--(1) [A lease for any period exceeding thirty
years] of any immovable property which is [waqf]
property, shall, notwithstanding anything contained in
the deed or instrument of [waqf] or in any other law for
the time being in force, be void and of no effect:
[Provided that a lease for any period upto thirty
years may be made for commercial activities, education
or health purposes, with the approval of the State
Government, for such period and purposes as may be
specified in the rules made by the Central Government:
Provided further that lease of any immovable waqf
property, which is an agricultural land, for a period
exceeding three years shall, notwithstanding anything
contained in the deed or instrument of waqf or in any
other law for the time being in force, be void and of no
effect:
Provided also that before making lease of any waqf
property, the Board shall publish the details of lease and
invite bids in at least one leading national and regional
news papers.]
(2) [A lease for a period of one year but not
exceeding thirty years] of immovable property which is
[waqf] property shall, notwithstanding anything
contained in the deed or instrument of [waqf] or in any
other law for the time being in force, be void and of no
49
effect unless it is made with the previous sanction of the
Board.
(3) The Board shall, in granting sanction for lease
[***] or renewal thereof under this section review the
terms and conditions on which the lease [***] is
proposed to be granted or renewed and make its approval
subject to the revision of such terms and conditions in
such manner as it may direct:
[Provided that the Board shall immediately intimate
the State Government regarding a lease for any period
exceeding three years of any waqf property and
thereafter it may become effective after the expiry of
forty-five days from the date on which the Board
intimates the State Government.]
[(4) Every rule made by the Central Government under
this section shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session for a total
period of thirty days, which may be comprised in one session or
in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done
under that rule.]"
(Emphasis supplied)
Section 56 deals with restriction on power to grant lease of waqf
property. Section 56 mandates that a lease for any period up to 30
years must be placed before the Board and on approval it should be
placed before Government. Proviso to sub-section (3) of Section 56
mandates that the Board shall, in granting sanction or lease or
50
renewal thereof, must immediately intimate the State Government
regarding lease for a period exceeding 3 years of any waqf
property. Therefore, the power to sanction or deny it, is with the
Government. The contention of the learned counsel for respondents
1 and 2 which is accepted by the Tribunal is that under Section
56(1) it is only the Board that has the power to grant lease after
following the provisions under the Act. Section 99 empowers the
Government to appoint an Administrator. It reads as follows:
"99. Power to supersede Board.--(1) If the State
Government is of opinion that the Board is unable to
perform or has persistently made default in the
performance of, the duty imposed on it by or under this
Act or has exceeded or abused its powers, or has wilfully
and without sufficient cause failed to comply with any
direction issued by the Central Government under section
96 or the State Government under section 97, or if the
State Government is satisfied on consideration of any
report submitted after annual inspection, that the Board's
continuance is likely to be injurious to the interests of the
1 auqaf in the State, the State Government may, by
notification in the Official Gazette, supersede the Board
for a period not exceeding six months:
Provided that before issuing a notification under
this sub-section, the State Government shall give a
reasonable time to the Board to show cause why it should
not be superseded and shall consider the explanations
and objections, if any, of the Board:
Provided further that the power of the State
Government under this section shall not be exercised
unless there is a prima facie evidence of financial
51
irregularity, misconduct or violation of the provisions of
this Act.
(2) Upon the publication of a notification under
sub-section (1) superseding the Board,--
(a) all the members of the Board shall, as from
the date of supersession, vacate their offices
as such members;
(b) all the powers and duties which may, by or
under the provisions of this Act, be exercised
or performed by or on behalf of the Board
shall, during the period of supersession, be
exercised and performed by such person or
persons as the State Government may direct;
and
(c) all properties vested in the Board shall, during
the period of supersession vest in the State
Government.
(3) On the expiration of the period of supersession
specified in the notification issued under sub-section (1), the
State Government may--
(a) extend the period of supersession by another six
months with reasons to be recorded in writing and,
the period of continuous supersession shall not
exceed more than a year; or
(b) reconstitute the Board in the manner provided in
section 14."
(Emphasis supplied)
Power under Section 99 is exercised and the Administrator is
appointed. Section 99 deals with power to supersede the Board.
Supersession of the Board ould result in appointment of an
52
Administrator. 'Expiry' word also would lead to appointment of an
Administrator. Sub-section (2) of Section 99 mandates, upon
superseding the Board all powers and duties of the Board will be
performed by the Government or the person appointed by the
Government.
14. If the word supersession is paraphrased with the word
'expiry' on the term of the Board expiring, there cannot be a
vacuum. Vacuum is filled by the appointment of Administrator. The
Administrator cannot be a mere puppet. He has to perform all the
duties of the Board during the absence of the Board, as he is the
nominee of the State Government. The Administrator in terms of
law and following necessary procedure in law has sought prior
approval of the Government at every step and has entered into the
lease. This could not have been found fault with by the Tribunal,
that too in an application preferred by persons who would not fit in
the definition of 'person interested' under Section 3 of the Act.
53
15. For the aforesaid reasons, the following:
ORDER
(i) Civil Revision Petition is allowed.
(ii) Order dated 09-09-2022 passed by the Karnataka Waqf Tribunal, Bengaluru in Application No.20 of 2018 stands quashed.
Sd/-
(M.NAGAPRASANNA) JUDGE BKP CT:SS