- 1 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH WRIT PETITION NO. 52913 OF 2017 (GM-WAKF) BETWEEN: AL-MUBARAK EDUCATIONAL TRUST (REGD)., MUBARAK MOHALLA KEMPAIAH BLOCK, J.C. NAGAR BANGALORE - 560 006, REPRESENTED BY ITS SECRETARY. …PETITIONER (BY SRI. NAVEED AHMED, ADVOCATE) AND: 1. KARNATAKA STATE BOARD OF AUQAF, NO.6, CUNNINGHAM ROAD, BANGALORE - 560 052 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 2. ENQUIRY OFFICER & WAQF OFFICER DISTRICT WAQF ADVISORY COMMITTEE BANGALORE URBAN DISTRICT , NO.4-C, 2ND FLOOR, HHS & HMS COMPLEX, CUBBONPET, BANGALORE - 560 002. 3. MR. MOHAMMED JRAYATHULLA S/O ABDUL HAKEEM SAB, AGED ABOUT 58 YEARS R/AT NO. 26/C, ANKAPPA BLOCK, Digitally signed by ARUNKUMAR M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 J.C. NAGAR, BANGALORE - 560 006. 4. MR. ABDUL SUBHAN S/O ABDUL KHALIQ, AGED ABOUT 52 YEARS R/AT NO.14, 3RD CROSS, KEMPAIAH BLOCK, J.C. NAGAR, BANGALORE - 560 006. …RESPONDENTS (BY SMT. SABAHATH SULTANA, ADVOCATE FOR R1 AND R2; SRI. SYED IMRAN, ADVOCATE FOR R3 AND R4) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE IMPUGNED CERTIFICATE OF REGISTRATION DATED 9.11.2017 ISSUED BY R-1 IN SO FOR AS INCLUSION OF ENGLISH SCHOOL SITUATED AT MUBARAK MOHALL, KEMPAIAH BLOCK, J.C. NAGAR, BANGALORE-6 IN IMPUGNED CERTIFICATE OF REGISTRATION AT ANNEX-A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 ORAL ORDER In this petition, the petitioner is assailing the Certificate of Registration dated 09.11.2017 issued by respondent No.1- Board insofar as including the English school situated at Mubarak Mohalla, Kempaiah Block, J.C.Nagar, Bangalore, in the impugned Certificate of Registration (Annexure-A), inter alia, sought for direction against respondent No.1-Board to delete the immovable properties as mentioned in the Certificate of Registration and to replace the name of the Managing Committee with the name of the "Board of Trustees of Al- Mubarak Educational Trust" in column No.4 of Annexure-A. 2. I have heard the learned counsel appearing for the parties. 3. Sri Naveed Ahmed, learned counsel for the petitioner, invited the attention of the court to the Trust Deed dated 25.10.1979 (Annexure-B) and contended that the registered trust of the petitioner has been constituted for running educational institutions under the name of 'Al-Mubarak Educational Trust.' He further contended that the property belonged to the petitioner-institution. It is also submitted by - 4 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 the learned counsel for the petitioner that the Notification dated 07.06.2016 was challenged before this court in W.P.No.62060/2016 and this court, vide order dated 13.04.2017, quashed the Certificate of Registration dated 07.06.2016 and thereby relegated the parties to approach the District Waqf Officer for fresh consideration. Thereafter, respondent No.2, without considering the factual aspects on record, particularly with regard to the scope and ambit of Sections 36 and 40 of the Waqf Act, 1995 (for short, 'Act'), passed the impugned order at Annexure-A dated 09.11.2017, which requires to be interfered with in this petition. 4. It is the contention of the learned counsel for the petitioner that the impugned order is passed by exercising power under Section 36 of the Act, wherein Section 36 of the Act has to be invoked only at the instance of the application made by the Mutawalli and therefore, since the said application has not been made by the Mutawalli, respondent No.1 has no jurisdiction to pass the impugned order. He further invited the attention of the court to Section 40 of the Act and contended that respondent no.1-Board, has to consider the material on - 5 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 record and has to pass an order with regard to identifying the property as a Waqf property, and in the present case, the impugned order is passed by the Chief Executive Officer of the Karnataka State Board of Auqaf and therefore the said impugned order at Annexure-A cannot be considered as a decision of the Board, and accordingly, sought for interference by this Court. 5. It is also contended by the learned counsel appearing for the petitioner that the Enquiry Officer and respondent No.1-Board have not properly appreciated the Circular dated 23.05.2016 (Annexure-H), wherein the said Circular provides that the Trust or the societies have to be governed by their own by-laws even after the registration as a Waqf Institutions, and therefore, the said Notification has been ignored by the respondent-authorities. Accordingly, sought for interference by this court. 6. Per contra, Sri Syed Imran, learned counsel for respondent Nos. 3 and 4, strenuously contended that the petitioner has to exhaust the remedy by approaching the competent Tribunal by challenging the impugned order and - 6 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 therefore the writ petition is not maintainable. It is also argued by the learned counsel appearing for the respondent Nos.3 and 4 by referring to the proviso to Section 36 of the Act and submitted that not only the Mutawalli of the particular Institution has to make an application seeking registration, but also said application be made by any Muslim of which the waqf belongs, and therefore, respondent No.1-Board has properly appreciated the entire factual aspects on record and passed an order which requires to be confirmed in this petition. It is also argued by the learned counsel for respondents Nos.3 and 4 by referring to Section 40(2) and (4) of the Act and submitted that since the Board has already taken a decision in the matter, the petitioner has to be relegated to approach the Board and in this regard, learned counsel appearing for respondents Nos.3 and 4, refers to the judgment of the Hon'ble Supreme Court in the case of Rashid Wali Beg v. Farid Pindari and others reported in (2022) 4 SCC 414 and contended that since the property in question is waqf property and therefore, the petitioner has to exhaust a remedy by approaching the Tribunal and accordingly sought for dismissal of writ petition. - 7 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 7. In the light of the submissions made by the counsel appearing for the parties, I have carefully examined the writ papers. It is not in dispute with regard to the Trust Deed as per Annexure-B dated 25.10.1979, wherein the petitioner-Trust has been constituted for the purpose of the advancement of running Educational Institutions under the name AL-Mubarak Educational Trust. The contention putforth in this petition is that the Certificate of Registration as per Annexure-A declares the name of the Mutawalli as the Managing Committee represented by its president/secretary and also the power exercised under Section 36 of the Act. In this regard, Section 36 of the Act reads as follows: "36. Registration.—(1) Every 2[waqf], whether created before or after the commencement of this Act, shall be registered at the office of the Board. (2) Application for registration shall be made by the mutawalli: Provided that such applications may be 3[made by the waqf] or his descendants or a beneficiary of the 2[waqf] or any Muslim belonging to the sect to which the 2[waqf] belongs. (3) An application for registration shall be made in such form and manner and at such place as the Board may by regulation provide and shall contain the following particulars:— (a) a description of the 2[waqf] properties sufficient for the identification thereof; - 8 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 (b) the gross annual income from such properties; (c) the amount of land revenue, cesses, rates and taxes annually payable in respect of the 2[waqf] properties; (d) an estimate of the expenses annually incurred in the realisation of the income of the 2[waqf] properties; (e) the amount set apart under the 2[waqf] for— (i) the salary of the mutawalli and allowances to the individuals; (ii) purely religious purposes; (iii) charitable purposes; and (iv) any other purposes; (f) any other particulars provided by the Board by regulations. (4) Every such application shall be accompanied by a copy of the 2[waqf] deed or if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars, as far as they are known to the applicant, of the origin, nature and objects of the 2[waqf]. (5) Every application made under sub-section (2) shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of pleadings. (6) The Board may require the applicant to supply any further particulars or information that it may consider necessary. (7) On receipt of an application for registration, the Board may, before the registration of the 1[waqf] make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the 1[waqf] property, the Board shall, before registering the 1[waqf], give notice of the application to the person administering the 1[waqf] property and shall hear him if he desires to be heard. (8) In the case of 2[auqaf] created before the commencement of this Act, every application for registration shall be made, within three months from such - 9 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 commencement and in the case of 2[auqaf] created after such commencement, within three months from the date of the creation of the 1[waqf]: Provided that where there is no Board at the time of creation of a 1[waqf], such application will be made within three months from the date of establishment of the Board." 8. On perusal of the above said provision would indicate that every waqf shall be registered in the office of the Board, and the said registration has to be made at the instance of the application that may be made by the Mutawalli, so also, any descendants or the beneficiary of the waqf or any Muslim belonging to the particular Sect. It is also to be noted that Section 40 of the Act provides for a decision of the Board if the property is to be declared as the Waqf property. Undisputably, the impugned order at Annexure-A is passed under Section 36 of the Act pursuant to the order passed by this Court in WP.No.62060/2016 dated 13.04.2017 (Annexure-E). The contention of the petitioner herein that since the Trust is managing the affairs of the Education Institution and therefore even if such a Certificate of Registration is made under Annexure-A, however the managing committee has to be fromed by inducting the trustees as per Annexure-B to the writ - 10 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 petition and in this regard, on careful examination of Section 30 read with Section 40 of the ACt makes it clear that respondent No.1-Board has not properly appreciated the entire material on record by considering the contentions raised by the petitioner herein and also it is made clear that the Circular dated 23.05.2016(Annexure-H) issued by the Karnataka State Board of Waqf wherein it is stated that even if the Waqf is registered in terms of Section 36 or Section 40 of the Act, the trust or societies are governed by their own by-laws and continues to be governed even after the registration as Waqf Institution. In that view of the matter, the process of consideration by respondent No.1-Board at Annexure-A requires interference as respondent No.1-Board in the impugned order at Annexure-A has not properly appreciated the contentions raised by the parties herein, in the light of the observation made by this court in WP.No. 62060/2016 as well as the Circular dated 23.05.2016 (Annexure-H). Though the learned counsel appearing for respondents Nos.3 and 4 submitted that the petitioner is having an efficacious remedy by approaching the Tribunal, however, this Court, while exercising the jurisdiction under Article 226 of the Constitution of India, is to look into the - 11 - HC-KAR NC: 2025:KHC:41322 WP No. 52913 of 2017 decision making by the authority and if it is perverse in nature and the same has to be set aside under Article 226 of the Constitution of India. 9. In that view of the matter, I find some force in the submission made by the learned counsel appearing for the petitioner. Accordingly, I pass the following: ORDER i. The writ petition is allowed; ii. The order dated 09.11.2017 (Annexure-A) passed by the respondent No.1-Board is hereby set aside and the matter is remitted to respondent No.1- Board to take decision in the matter in accordance with law in the light of the observation made above after affording opportunity to all the persons concerned. SD/- (E.S.INDIRESH) JUDGE HDK List No.: 1 Sl No.: 28 CT: BHK