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:- CAV ORDER The petitioner is before this Court calling in question an order dated 09-09-2022 passed by the Karnataka Waqf Tribunal (8the Tribunal9 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 8Board9 for short) for development and lease of waqf property measuring 94488 sq. ft. at CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA 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 8the Act9 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 8interested person9 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.4In this Act, unless the context otherwise requires,4 (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 includes4 (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 includes4 (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 8person interested9 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 includes4 (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 8person interested9 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 8person interested9 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 8the Board or the mutawalli of the wakf9. The word 8therein9 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 8any person interested therein9 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 8any person interested in a wakf9 and, therefore, this meaning should not be given to the words 8any person interested therein9. This argument is not tenable because the words 8any person interested therein9 appear soon after 8the mutawalli of the wakf9 and therefore the word therein' has been used to avoid repetition of the words 8in the wakf9 and not to extend the scope of the section to persons who fall outside the scope of the words 8person interested in the wakf9. 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. 8We 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 8person interested9 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 8Islam9 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 8person interested9 and the definition is wide enough to cover any person who professes 8Islam9, 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 plaintiff9s 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 8person interested9. 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 8person interested.9 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 8a person interested in a waqf1 as defined under Section 3(k) of the Act, 1995 which is as follows:4 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 includes4 (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:4 P. Kasilingam v. P.S.G. College of Technology <A particular expression is often defined by the Legislature by using the word 8means' or the word 8includes9. Sometimes the words 8means and includes' are used. The use of the word 8means' 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 8includes' 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 8means and includes9, 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 8any other person aggrieved by and order made under this Act or Rules9.= (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:9 <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 criteria9s 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 respondent9s 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 3 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.4(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.4For 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 be4 (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 direct4 (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.4For the purposes of this clause, the powers of the Board shall be exercised4 (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.4(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.4(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 Board9s 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,4 (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 may4 (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. 8Expiry9 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 8expiry9 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 8person interested9 under Section 3 of the Act. 53 15. For the aforesaid reasons, the following: O R D E R (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