Karnataka High Court
Karnataka State Board Of Auqaf vs Sayed Murtuza Hussaini on 30 April, 2026
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NC: 2026:KHC-K:3819
MFA No. 200817 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
MISCL. FIRST APPEAL NO. 200817 OF 2026
BETWEEN:
KARNATAKA STATE BOARD OF AUQAF,
DARUL-AUQAF, NO.6,
CUNNINGHAM ROAD,
BEGALURU-560 052
REP. BY ITS CHIEF EXECUTIVE OFFICER.
...APPELLANT
(BY SMT. S. R. ANURADHA SR. COUNSEL FOR
SRI P. S. MALIPATIL, ADVOCATE)
AND:
Digitally signed by
SOMANATH
PENTAPPA MITTE
Location: HIGH
1. SAYED MURTUZA HUSSAINI,
COURT OF
KARNATAKA
S/O SAYED MAHMOOD HUSSAINI,
AGED ABOUT 36 YEARS,
SAJJADA NASHIN
AND MUTHAVALLI OF HAZRATH
HASHIMPEER DARGAH, BIJAPUR,
R/O CTS NO.1925, NEXT TO HAZRATH
HASHIMPEER DARGAH, BIJAPUR-586 104.
2. SAYED MOINUDDIN HUSSAINI,
S/O SAYED SHAH HASHIM HUSSAINI,
AGED ABOUT 53 YEARS, OCC: SERVICE,
R/O CTS NO.1924, NEXT TO HAZRATH
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MFA No. 200817 of 2026
HC-KAR
HASHIMPEER DARGAH,
BIJAPUR -586 104.
3. CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF WAKFS,
DARUL-AUQAF, NO.6, CUNNINGHAM ROAD,
BEGALURU-560 052.
...RESPONDENTS
(BY SRI DHRUVA P. AMBEKAR, ADVOCATE, FOR R1;
SRI S.S. MAMADAPUR, ADVOCATE, FOR R2;
R3-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO SET- ASIDE THE IMPUGNED
ORDER DATED 3RD DAY OF FEBRUARY 2026 PASSED BY THE
LEARNED PRESIDING OFFICER OF THE KARNATAKA WAQF
TRIBUNAL BELAGAVI DIVISION, BELAGAVI IN CASE NO.
KWT/VJR/(OS)/08/2010 IN SO FOR AS ACCEPTANCE OF THE
TERMS OF JOINT-MEMO FILED BY THE RESPONDENT NO.1
AND 2 HEREIN TO THE EXCLUSION OF SETTING ASIDE THE
ORDER OF APPOINTMENT OF RESPONDENT NO.2 DATED
18.04.1995, BY ALLOWING THIS APPEAL IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 10.03.2026 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY
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NC: 2026:KHC-K:3819
MFA No. 200817 of 2026
HC-KAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE TYAGARAJA N. INAVALLY) This appeal is filed by the Karnataka State Board of Auqaf ('the Waqf Board' for short), praying for an order to set aside the order dated 03.02.2026 of the learned Presiding Officer, Karnataka Waqf Tribunal, Belagavi Division, Belagavi ('the Waqf Tribunal' for short)/the respondent No.1 in the application No.KWT/VJR/(OS)/8/2010 ('the suit' for short), insofar as acceptance of the terms of the joint memo filed by the applicant (the respondent No.1 herein) and respondent No.3 (the respondent No.2) to the exclusion of setting aside the order dated 18.04.1995 appointing the respondent No.3 as Mutawalli, by allowing this appeal.
2. The parties to this appeal are referred to as per their rank before the Waqf Tribunal in the applications.
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3. The respondent No.3 being the applicant in application No.KWT/VJR/SR(A)/6/2012 filed the said application and subsequently, he filed memo to dismiss the said application as 'not pressed' as the parties arrived at a settlement. The applicant and the respondent No.3 in the application No.KWT/VJR/(OS)08/2010 filed joint memo in the said application stating that they agreed for the settlement on the following terms:
"(i) accommodation is made to respondent no.3 to participate on the 6th and 7th day of Ramzan month, and Urus.
(ii) after petitioner performed and taking out torus, this respondent no.3 is also allowed to carry torus from his house and respondent no.3 is also given right to perform some rituals, but after the petitioner as Mutawalli performs the rituals.
(iii) name of the petitioner should continue in the revenue records pertaining to CTS No.923 of Vijaypura, referring the name of Sajjada Nashin, and further, the impugned -5- NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR order passed in KWT/CMC/28/VJR/93-94 dated 18.4.1995, is set aside."
4. The Waqf Tribunal on enquiring both of them, they admitted the contents thereof. However, the resonant No.2 and also the Waqf Board being respondent No.1 resisted the joint memo filing a detail objections contending that as per Section 93 of the Waqf Act, 1995 (for short 'the Act') the sanction of the Waqf Board is mandatory for compromise.
5. At the very outset, it is relevant to note that this is the second round of litigation in pursuance of the order of remand dated 13.03.2024 of this Court in WP No.204571/2014 and WP No.204572/2014, which is confirmed by the Division Bench of this Court in WA No.200094/2024. The order of the Division Bench of this Court was upheld by the Hon'ble Apex Court by dismissing the case in SLP (Civil Diary) No.48302/2024 as per the order dated 14.11.2024. -6-
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6. As mentioned by the Wakf Board in objections filed to the joint memo before the Wakf Tribunal, the operative portion of the order in WP No.204571/2014 and WP No.204572/2014 reads thus:
"Order dated 01-08-2014 in KWT/BJR/SR./ Appln 6/2012 and 8/2010 at Annexure-A is quashed.
Matter is remitted back to the Wakf Tribunal for fresh disposal in accordance with law.
Further, Wakf Tribunal while re-adjudicating the matter should bestow his attention to the compromise petition filed in W.A. No.541 & 542 of 1983 and pass appropriate orders.
At the time of re-adjudicating the matter, all the contentions for the parties are kept open."
7. This Court after quashing the orders passed in the applications No.6/2012 and No.8/2010, remitted the matter back to the Waqf Tribunal for fresh disposal in accordance with law. It was made clear that at the time of re-adjudicating the matter, all contentions of the parties are kept open. Therefore, the contention of the -7- NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR Waqf Board is that it is not permissible to the applicant and the respondent No.3 to report compromise by filing joint memo before the Waqf Tribunal. The contention of the Waqf Board is also that the joint memo filed before the Waqf Tribunal is in collusion of the applicant with the respondent No.3, without the sanction of the Waqf Board.
8. Smt. S.R. Anuradha, the learned Senior Counsel for the Waqf Board has drawn the attention of this Court to the provision of Section 93 of the Act, which reads thus:
"Bar to compromise of suits by or
against mutawallis.--No suit or
proceeding in any court by or against the mutawalli of a [waqf] relating to title to [waqf] property or the rights of the mutawalli shall be compromised without the sanction of the Board."
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9. Hence, the submission of the learned Senior Counsel for the Waqf Board is that the compromise entered into between the applicant and the respondent No.3 was without the sanction of the Waqf Board hence, the Wakf Tribunal committed error in accepting the said compromise.
10. On the other hand, the learned counsel for the applicant and the respondent No.3 have referred to Section 16(e) of the Act, wherein Section 16(e)(ii) of the Act deals with an order of a competent Court or Tribunal. The learned counsel for the applicant and the respondent No.3 have also drawn the attention of this Court to Section 61 of the Act, wherein regarding penalties, 'the Court' or 'the Tribunal' is mentioned. Hence, the submission of the learned counsel for the applicant and the respondent No.3 is that the provision of Section 93 of the Act applies only to 'the Court' and not to 'the Tribunal' and therefore, the sanction of the -9- NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR Waqf Board is not necessary for compromise in the matter.
11. The above said submission of the learned counsel for the applicant and the respondent No.3 prima facie does not merit consideration in law, in view of the submission of the learned Senior Counsel for the Wakf Board, who has drawn the attention of this Court to Section 83(5) of the Act, which reads thus:
"The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order."
12. Hence, in view of the said provision of Section 83(5) of the Act, as submitted by the learned Senior Counsel for the Wakf Board, it would be clear that the Wakf Tribunal while dealing with the dispute is deemed to be Civil Court and therefore, in view of Section 93 of
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NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR the Act, the Wakf Tribunal should not have accepted the joint memo of the applicant and the respondent No.3 when the compromise entered into between them as per the joint memo, is without the sanction of the Waqf Board.
13. As pointed out by the learned Senior Counsel for the Waqf Board, the power to appoint and remove Mutawalli vests with the Waqf Board. Section 32(g) of the Waqf Act reads thus:
"32 (1) xxxxxxx (2) xxxxxx
(g) to appoint and remove mutawallis in accordance with the provisions of this Act;"
14. In the case on hand, it is relevant to note that the respondent No.3 was appointed by the Waqf Board as early as in the year 1995 as per the order No.KTW/CMC/28/BJR/93-94 dated 18.04.1995. As submitted by the learned Senior Counsel for the Waqf
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NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR Board, the said order was signed by the Secretary of the Karnataka State Waqf Board by the order of the Board.
15. On the other hand, the appointment of the applicant as Mutawalli was per the order No.KTW/CMC 60/BJR/2000-01 dated 11.11.2001 and the said order was signed by the Chief Executive Officer of the Karnataka State Waqf Board. There is no mention that the appointment of the applicant as Mutawalli was by the order of the Waqf Board.
16. Moreover, it is pertinent to note that in the above referred order dated 11.11.2001, there is reference to the petition dated 06.12.2001 of the Jana Syed Murtuza Hussain, who is the applicant herein. In the order dated 11.11.2001 there could not be reference to the subsequent petition which is dated 06.12.2001.
17. Moreover, there is another order as per No.KTW/CMC/60/BJR/2000-01 dated 12.11.2001, which reads thus:
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NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR "In view of the facts mentioned in the preamble and in exercise of the powers conferred under Section 63 of the Wakf Act, 1995, the Karnataka State Board of Wakf, hereby appoints Sri Syed Murtuza Hussaini S/o Syed Mahamood Hussaini Peerzade as Muthawalli and Sajjada Nasheen to the institution viz. Dargah Hazarath Hashim Peer situated in CTS.No.1923 of Ward No.111 of Bijapur. The term of the Muthawalli is for a period of three (3) years with effect from 12.11.2001 to 11.11.2004. The Muthawalli shall function as per the provisions of Wakf Act 1995 and in accordance with the Karnataka Wakf Rules 1997."
18. The said order is regarding appointment of the applicant as Mutawalli and Sajjada Nasheen of the Waqf Board. The said order was also signed by the Chief Executive Officer of the Karnataka State Board of Waqf. There is no mention in the order that it was passed as per the order of the Waqf Board.
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19. Hence, by way of joint memo of the applicant and the respondent No.3 without there being sanction of the Waqf Board, the appointment of the applicant as Mutawalli, is not in accordance with the provisions of the Act. Therefore, as submitted by the learned Senior Counsel for the Waqf Board, the Wakf Tribunal has committed error in passing the impugned order on the basis of the joint memo filed by the applicant and the respondent No.3.
20. Moreover, the Hon'ble Apex Court in the case in S.V. Cheriyakoya Thangal Versus S.V.P. Pookoya and Others reported in 2024 SCC OnLine SC 1586 held that:
"10. The word 'competent authority' as mentioned in the definition clause contained in Section 3(i) makes the position further clear that it is the Waqf Board which has got the jurisdiction and not the Waqf Tribunal. After all, the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal
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NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR with any issue pertaining to administration. The power of superintendence cannot be confined to routine affairs of a Waqf but it includes a situation where a dispute arises while managing the property and that would certainly include a right of a person to be a Mutawalli after all, it is the Mutawalli who does the job of administering and managing the Waqf."
21. In view of the above said decision of the Hon'ble Apex Court and also as per the facts of the case, it would be clear that the Waqf Tribunal has committed error in accepting the joint memo filed by the applicant and respondent No.3 and thereby passing order appointing the applicant as Mutawalli without there being sanction of the Waqf Board.
22. The reasoning of the Waqf Tribunal in the impugned order that 'even if it is accepted that it is the Board which decide the appointment of the Mutawallis, just because the petitioners in both these petitions now want to settle the matter, that will not curtailed authority of the Board'
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NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR and that 'if the Board wishes to appoint Mutawalli, that power still subsists as if there being any dispute in this regard, then, the parties concerned may challenge the same in appropriate proceedings. But, that is not a ground now to prevent the parties from settling the disputes' does not stand for consideration, as the said reasoning would show that the Tribunal itself is sure that the Mutawalli should be appointed by the Waqf Board. Therefore, the reasoning of the Tribunal in the impugned order for accepting the settlement entered into between the applicant and respondent No.3 by way of joint memo does not merit consideration on the facts of the case and also in law. Hence, the impugned order of the Waqf Tribunal is liable to be set aside and consequently, the present appeal deserves to be allowed.
23. In the result, I pass the following:
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MFA No. 200817 of 2026
HC-KAR
ORDER
i) This appeal filed by the
appellant/respondent No.1 before the
Waqf Tribunal is allowed.
ii) Consequently, the order dated
03.02.2026 of the Karnataka Waqf
Tribunal, Belagavi, in case
No.KWT/VJR/(OS)/08/2010 insofar as
acceptance of terms of joint memo filed by the applicant (respondent No.1 herein) and respondent No.2 (respondent No.3 herein) to the exclusion of setting aside the order 18.04.1995 is hereby set aside.
iii) The matter is remitted back to the Waqf Tribunal to proceed with the matter on merit and dispose of the same in compliance of order of remand dated 13.03.2024 of this Court in WP No.204571/2014 and WP No.204572/2014.
iv) It is made clear that the Waqf Tribunal shall not be influenced by any of the
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NC: 2026:KHC-K:3819 MFA No. 200817 of 2026 HC-KAR observation made by this Court in this order.
Sd/-
(TYAGARAJA N. INAVALLY) JUDGE SBS List No.: 1 Sl No.: 23