SRI. HAFEEZ vs KARNATAKA STATE BOARD OF AUQAF,

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WP No. 3560 of 2024


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 17 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE T.P.VIVEKANANDA

WRIT PETITION NO. 3560 OF 2024 (GM-WAKF)

BETWEEN:

SRI. HAFEEZ
S/O LATE HASSAN BAWA
AGED ABOUT 49 YEARS
R/AT ISHAN COTTAGE
BIRLA COMPOUND, MUKKACHERI
ULLAL VILLAGE AND POST
MANGALURU-575 020 (DK)
REP. BY HIS G.P.A HOLDER
SMT. KATHEEJA HAMZA
D/O LATE HASSAN BAWA
W/O PULLIA HAMZA MOHAMMAD
AGED ABOUT 58 YEARS
R/AT NO.21-5-607/10
NEAR OLD ESI, PINTO GATE
BOLAR, MANGALURU-575 001 (DK)
…PETITIONER












(BY SRI: M SUDHAKAR PAI, ADVOCATE)

AND:

1. KARNATAKA STATE BOARD OF AUQAF
DARUL AWKAF NO.6
CUNNINGHAM ROAD
BENGALURU-560 052
REPTD. BY ITS CHIEF EXECUTIVE OFFICER

2.
THE WAKF OFFICER
DISTRICT WAKF OFFICER
DAKSHINA KANNADA
ND
MINORITY BHAVAN, 2 FLOOR


Digitally signed by
PAVITHRA B
Location: HIGH
COURT OF
KARNATAKA

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OLD KENT ROAD, PANDESHWAR
MANGALURU-575 001 (DK)
…RESPONDENTS
(BY SRI: MOHAMMAD NIYAZ S, ADVOCATE FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE REGISTRATION CERTIFICATE DTD 28.12.2020
ISSUED BY R-1/ THE CHIEF EXECUTIVE OFFICER, KARNATAKA
STATE BOARD OF WAKF, BENGALURU (VIDE ANNEXURE-J TO
THE WP).
THIS WRIT PETITION, HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT, THIS DAY,
T.P.VIVEKANANDA J., MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE T.P.VIVEKANANDA

CAV ORDER
The petitioner is before this Court seeking issue of
writ of certiorari to quash the Waqf Registration Certificate
dated 28.12.2020 issued by respondent No.1 registering
the property bearing Survey No.1315/A1A measuring 30
Cents and Survey No.1315/A2A measuring 1 Cent situated
at Bazar Bunder Village, Mangaluru Taluk, as waqf
property.
2. The facts of the case as noticed from the
averments made in the writ petition are that, the ancestor
of the petitioner Viz., Late.Hasanabba had created a
private waqf through waqf deed dated 08.01.1945. The

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petitioner is a Mutawalli of the waqf created under the
aforesaid document. The buildings constructed in the
aforementioned property are tenanted. In order to obtain
possession from the tenants, the petitioner has instituted
a suit in OS.No.1200/2017.
3. During the pendency of the said suit,
respondent No.1-Waqf Board had filed an application for
impleading as additional defendant on the ground that the
suit schedule property is a registered waqf property.
Therefore, it is a necessary party to the suit. It is only
when respondent No.1 filed an application producing the
copies of the letter dated 29.10.2020 addressed by
respondent No.1 to the Chief Executive Officer of Auqaf
Board, verification report, communication dated
11.12.2020, public notice dated 25.11.2020 and Waqf
Registration Certificate dated 28.12.2020, the petitioner
came to know about the action initiated by respondent
No.1 to register the property in question as waqf property.
4. The application for impleading was opposed by
the petitioner contending that the forefathers of the

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petitioner have created a private family waqf in the year
1945, which is a registered instrument. Only in case of no
members of the family are alive or available to look after
the private waqf, then only the property standing in the
name of the private family waqf would become a public
waqf. The said application having been allowed by order
dated 27.10.2023 the respondents have been impleaded
as defendants.
5. On the ground that the petitioner had no notice
of the proceedings held by respondent No.1 to register the
property in question as Auqaf, the property being private
waqf property could not have been registered under the
Waqf Act by respondent No.1, the present writ petition is
filed challenging the registration certificate.
6. The writ petition has been opposed by
respondent No.1 by filing statement of objections, inter
alia, contending that the writ petition challenging the
Auqaf registration certificate dated 28.12.2020 is barred
by limitation. There is no concept of private waqf in the
Waqf Act, 1995. As per the provisions of Section 3(r)

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“ Waqf ” means the permanent dedication by any person of
any movable or immovable property for any purpose
recognized by the Muslim law as pious, religious or
charitable. The waqf has been created in respect of the
property in question by virtue of the registered waqfnama
bearing document No.60/1945 dated 08.01.1945, which is
a registered instrument. It is further contended that it is
pursuant to the receipt of an application from the
beneficiary of the waqf, the process of registration of the
property as waqf property has been undertaken by
following the procedure contemplated under the Waqf Act,
1995. The issuance of notification under the Waqf Act,
1995 is a conclusive proof unless it is challenged as
contemplated under Section 6(1) of the Waqf Act, 1995.
7. It is further contended that the challenge to the
registration of waqf could be made within a period of one
year from the date of registration before the Waqf
Tribunal. Without exhausting the remedy available under
Section 6 of the Waqf Act, 1995, the petitioner has filed
the present writ petition, which is not maintainable.

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8. I have heard the learned counsel for the
petitioner so also the learned Counsel for the respondents
and perused the material on record.
9. The learned counsel for the petitioner invited
the attention of this Court as to the manner in which the
waqf is registered purported to be under Section 36 of the
Waqf Act, 1995. He points out that none of the
requirements contemplated under Section 36 is complied
with by respondent No.1. It is his submission that the
entire process of registration of waqf was undertaken
pursuant to the representation submitted by one Mr.Ayoob
who is one of the defendant in the suit in
O.S.No.1200/2017 filed by the petitioner against the
tenants. Mr.Ayoob who was a tenant of the petitioner was
not entitled to make any application to respondent No.1
for registration of waqf, in as much as, the application for
registration can be made only by the Mutawalli. Therefore,
the action of respondent No.1 in registering the waqf in
respect of the property in question is without authority of

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law and contrary to the provisions of Section 36 of the
Waqf Act.
10. The learned counsel for the petitioner has
placed reliance on the judgment in the case of Shah
Mansur Peer Dargah and Another etc., Vs. State of
1
Karnataka and Others and contended that, if the order
passed by the Auqaf Board on the face of it, is erroneous,
the Writ Court can entertain the writ petition and set aside
the action of respondent No.1.
11. The learned counsel for the petitioner further
relied on the judgment in the case of Karnataka State
Road Transport Corporation Vs. Karnataka State
2
Transport Authority in support of his contention that
even where an equally efficacious alternative remedy
exists, where, however, fundamental rights are effected
where rules of natural justice are violated, or where there
is a failure on the part of the authority concerned to
confine itself within the bounds of its legitimate jurisdiction
or where there is a failure to exercise a jurisdiction vested

1

AIR 1980 KAR 118
2

1983 SUPREME (KAR) 89

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in it or where there is an error of law apparent on the face
of the record a person aggrieved can invoke the
extraordinary jurisdiction of this Court under Article 226
without reference to any remedy however equally
efficacious it be.
12. In respect of the same proposition, the learned
counsel for the petitioner has placed reliance on the
judgment of the Hon'ble Supreme Court in the case of
M/s Godrej Sara Lee Ltd., Vs. The Excise and
Taxation Officer-Cum-Assessing Authority and
3
Others . In the said judgment, the Hon'ble Supreme
Court referring to the judgment in the case of WhirlPool
Corporation Vs. Registrar of Trade Marks, Mumbai
and Others reported in (1998) 8 SCC 1 has laid down
under what circumstances the Writ Court would be
justified in entertaining the writ petition despite existence
of alternative remedy. The relevant portion of the said
judgment is extracted below:


3

2023 SCC Online SC 95

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"6. x x x x
(1) where the writ petition seeks
enforcement of any of the
fundamental rights;
(ii) where there is violation of principles
of natural justice;
(iii) where the order or the proceedings
are wholly without jurisdiction; or
(iv) where the vires of an Act is
challenged."

13. The learned counsel for the petitioner placed
reliance on the order passed by the Co-ordinate Bench of
this Court in the case of Hydersha Abusha Malangsha
and Others Vs Karnataka State Board of Wakfs and
Others in W.P.No.60010/2009 , wherein under
somewhat similar circumstances, the writ petition has
been entertained declining to relegate the petitioner
therein to approach the Waqf Tribunal under Section 83(2)
of the Waqf Act, 1995 and held that, if there is violation of
statute in registering the waqf, the Writ Court could
exercise the extraordinary jurisdiction under Article 226 of
the Constitution of India.
14. The learned counsel for the petitioner has filed
a memo enclosing therewith the copies of the judgment

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passed in O.S.No.580/2017 and RA.No.63/2025 and
contends that while adjudicating the aforesaid suit and the
regular appeal and considering the very same waqf deed
dated 08.01.1945 and also referring to the findings
recorded in O.S.No.377/2000 held that the waqf created
by Mr.Hasanabba is a private waqf and Mr.Hafeez is the
Mutawalli of the said private waqf. The relevant portions of
the order passed on I.A., for impleading filed by the
respondent No.1-Karnataka State Board of Auqaf in
RA.No.63/2025 are as follows:
"14. A perusal of the impugned judgment
passed by the trial court in this case and Ex.P18-
certified copy of judgment passed in O.S.377/2000
disclose that there is already a clear finding given by the
trial court and also in the said suit that the Waqf created
by Hasanabba is a private Waqf and plaintiff is the
present mutawalli of the said Waqf. When such is the
case, question of registering the plaint schedule
property as Waqf property under the provisions of Waaf
Act 1995 did not arise.
15. It is an admitted fact that the plaintiff had
not submitted any application for registration of the
plaint schedule properties as Waqf properties and it is at
the instance of the appellant/tenant herein, the said
properties have been registered as Waqf property which
is challenged by the plaintiff/respondent herein and the
matter has not yet reached its finality in that regard.
When such is the case, the question of issuing notice to
the Waqf Board/applicant herein in respect of the
ejectment suit filed by the plaintiff against a tenant

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which does not even involve the question of title to the
Waqf property or regarding possession of Waqf property
or regarding the right of the mutawalli or the
beneficiary, does not arise at all as held by Hon'ble
Allahabad High Court in the matter between Yashpal
Lala Shiv Narain Vs. Allatala Tala Malik Waqf
Ajakhan Mus reported in 2006 AIR (Ald)115
wherein it has been clearly held in paragraphs No. 150
onwards that a suit for eviction is not a suit or
proceeding regarding any dispute in respect of title to a
Waqf property or regarding any dispute in respect of
possession of a Waqf property or regarding any dispute
in respect of the right of a mutawalli or beneficiary. No
dispute of title to a Waqf property or possession of a
Waqf property or the right of mutawalli or beneficiary is
involved in such a suit for eviction of tenant/lessee after
determination of tenancy / lease. The dispute involved
in such a suit for eviction is in regard to eviction of the
tenant/leasee from the Waqf property in view of the
determination of his tenancy / lease. Hence, Sec.90 is
not applicable."

15. While passing the final judgment in the
aforesaid RA.No.63/2025, the First Appellate Court has
observed as follows:
"17. In the said suits also, similar contentions
were raised by the defendants stating that the Waqf
created by late Hasanabba is a public Waqf and as such
the civil court has got no jurisdiction to entertain the
said dispute and the Waqf Tribunal alone has got
jurisdiction to entertain the said suits. Similarly, as
could be seen from the judgment and decree passed by
the Prl. Senior Civil Judge Court at Mangaluru in the said
O.S.No.377/2000 and O.S.No.312/2004 marked as
Ex.P18, a specific issue was also framed in the form of
whether the additional issue No.1 to the effect that
defendants prove that the Waqf created by late

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Hasanabba as per registered Waqf Deed dated
08.01.1945 is a public Waqf and since the same is not
registered under the provisions of the Waqf Act, 1995,
the suit is barred under the provisions of Waqf Act? and
the said issue was answered in the negative by the Prl.
Senior Civil Judge Court in its judgment. The said issue
having been decided by the said court in the negative
has been confirmed even in the appeal preferred by the
defendants herein in R.A.No. 161/2010 and
R.A.No.162/2010 by its common judgment dated
30.08.2016 by framing almost a similar point for
consideration to the effect that whether
appellants/defendants prove that the suit is hit by
provisions of Waqf Act? As could be seen from Ex.P2
and Ex.P3 certified copy of the judgment and decree
passed in R.A.No.161/2010 and 162/2010 on the file of
III Addl. Dist. Judge, D.K. Mangaluru. Even the said
order has also reached its finality by virtue of the
dismissal of RSA No.1669/2016 preferred by the
defendants herein before the Hon'ble High Court of
Karnataka as could be seen from Ex.P4 certified copy of
order dated 19.10.2016 passed by the Hon'ble High
Court of Karnataka in the said RSA."

16. The learned counsel for the respondents has
contended that the writ petition is not maintainable and
the petitioner has an alternate remedy of approaching the
Waqf Tribunal under Section 83(2) of the Waqf Act, 1995.
It is his further submission that no suit or other legal
proceedings shall lie against the registration of waqf in the
light of the provisions of Sub-section (10) of Section 36 of
the Waqf Act, 1995. It is his further submission that any

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dispute regarding Auqaf and any person aggrieved will
have to institute a suit before the Tribunal and therefore,
the writ petition is not maintainable and the petitioner will
have to be relegated to filing of the suit before the Waqf
Tribunal.
17. The learned counsel for the respondents places
reliance on the judgments of the Hon’ble Supreme Court in
the cases of Board of Wakf, West Bengal and Another
4
Vs. Anis Fatma Begum and Another and Rashid Wali
5
Beg Vs. Farid Pindari and Others and contends that
the Hon’ble Apex Court has laid down the circumstances
under which the parties have to avail the remedy under
Section 83(2) of the Act and it is the Waqf Tribunal could
decide all dispute regarding the waqf and the waqf
property.
18. Having heard the learned counsel for the
petitioner and the respondents, the points that arise for
consideration in the present writ petition are as under:

4

(2010) 14 SCC 588
5

(2022) 4 SCC 414

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(i) Whether the writ petition filed by the petitioner
challenging the registration of waqf under
Section 36 of the Waqf Act, 1995, is
mainainable or the petitioner shall be relegated
to institute a suit under Section 83 of the Waqf
Act, 1995?
(ii) Whether the registration of waqf in terms of
Waqf Registration Certificate dated 28.12.2020
at Anneuxre-J is issued by following the
procedure contemplated under Section 36 of
the Waqf Act, 1995.
(iii) Whether the property in question is a private
waqf in the light of the registered document
dated 08.01.1945 at Annexure-A?
19. With regard to the question No.1 i.e. regarding
the maintainability of the writ petition is concerned, it is
necessary to notice that respondent No.1 has registered
the waqf on the basis of the representation submitted by
one Mr.Ayoob and not on the application for registration
made by Mutawalli. Since, the property in question has
been in the possession of the petitioner being the
Mutawalli of the private waqf, it was incumbent for

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respondent No.1 to notify the petitioner before initiating
proceedings under Section 36 of the Waqf Act, 1995.
20. Since, the registration of the waqf is grossly in
violation of the principles of natural justice, the petitioner
cannot be relegated to file a suit under Section 83 of the
Waqf Act, 1995. The judgment relied upon by the learned
counsel for the petitioner as regards the entertaining of
the writ petition during the existence of alternative
remedy aptly applicable to the facts of the present case.
21. In identical circumstances, the Co-ordinate
Bench of this Court in W.P.No.60010/2019 has rejected
the similar contention urged on behalf of the respondent-
Auqaf Board and set at naught the certificate of
registration under Section 36 of the Waqf Act, 1995.
Therefore, this Court is of the opinion that in the facts and
circumstances of the present case, the petitioner need not
be relegated to filing of the suit under Section 83(2) of the
Waqf Act, 1995.
22. On a cursory reading of the document, which is
styled as waqfnama, it is clear that the intention of Late

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Hasanabba was that untill his lineal decedents are alive to
look after the property in question it shall continue as a
family waqf and only when none of the lineal decedents
are not alive the property in question would become a
waqf property. It was not the intention of late
Mr.Hasanabba that the property would go to the hands of
Auqaf Board or under the management of a waqf.
Therefore, it cannot be said that under the aforesaid
document, a public waqf is created. Since it is
demonstrated by the petitioner that the property in
question is not a waqf or a property belongs to a waqf
question of relegating the petitioner to file a suit before
the Waqf Tribunal does not arise. Moreover, there are
judicial orders concerning the very same property holding
that the same is family waqf property. Therefore, it is not
a case where the petitioner is to be relegated to file a suit
before the Waqf Tribunal. In the facts and circumstances
of the present case, the judgments relied upon by the
learned counsel for the respondent cannot be made
applicable.

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23. It is noticed from the records that respondent
No.1 has proceeded to register the waqf in respect of the
property in question on the basis of the representation
submitted by Mr.Ayoob who is the defendant in the suit
filed by the petitioner/plaintiff for recovery of possession.
In all probability, in order to avoid the decree of eviction,
Mr.Ayoob has ingeniously approached respondent No.1 to
declare the property in question as waqf property. The
application filed by Mr.Ayoob is dated 21.10.2020 the
nd st
same was forwarded by the 2 respondent to 1
respondent on 29.10.2020, the public notice stated to
have been issued on 25.11.2020 and the alleged mahazar
was conducted on 01.12.2020 and registration certificate
has been issued on 28.12.2020. The sequence of events
as noticed supra would clearly disclose that it is only at the
instance of Mr.Ayoob, respondent No.1 has took up the
process of registration of waqf in a rocket speed without
notifying the petitioner who is working as Mutawalli of the
family waqf.

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24. It is also to be noticed that in O.S.No.580/2017
and in RA.No.63/2025, there is already a finding that the
property in question is a private waqf property and
Mr.Ayoob was defendant No.1 in OS.No.580/2017.
Mr.Ayoob being a party to OS.No.580/2017 and
RA.No.63/2025 has approached respondent No.1 for
registration of waqf and on the basis of such a
representation, respondent No.1 without following the
procedure contemplated under Section 36 of the Waqf Act,
1995 has proceeded to issue certificate notifying that the
property in question is a waqf property. Therefore, the
impugned registration certificate dated 28.12.2020 cannot
be sustained.
25. In the judgment in OS.No.377/2000, so also in
RA.No.161/2010 which are referred to in the judgment in
RA No.63/2025, the trial Court and the First Appellate
Court have rejected that the contention of the respondent-
Auqaf Board that the property in question is a waqf. The
aforesaid judgments have been challenged by Mr.Ayoob
and others in RSA.No.1669/2016 before this Court, which

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came to be dismissed on 19.10.2016. Therefore, it was
not open for Mr.Ayoob to approach respondent No.1 with a
request to declare the property in question as waqf and
the respondents could not have acceded to the said
request without examining various orders and decrees
passed by the Civil Courts in the aforesaid cases.
26. In the result:
(i) The writ petition is allowed .
(ii) The certificate of registration of waqf dated
28.12.2020 bearing No. / /109/ . /2020-21
ಕ ಾವಮ ೋ
ಾ ದ ಕನ ಡ

at Annexure-J is quashed.
(iii) It is clarified that quashing of impugned certificate of
registration would not come in the way of
adjudication of rights of the parties in the pending
civil suits or in other proceedings in accordance with
law.
Sd/-
(T.P.VIVEKANANDA)
JUDGE
PB