The petitioners in this writ petition are assailing

the order/endorsement bearing No.MWD/453/WES/

2013 dated 23/11/2015 (Annexure-E), passed by the

Principal Secretary, Minority Welfare, Haj & Waqf

Department-respondent No.1 and sought to allow the

application dated 28/11/2013 (Annexure – A) filed by

the

petitioners

seeking

permission

to

prosecute

respondent No.3 - Dr. Syed Shah Khusro Hussaini, who

was the sitting member and R.Abdul Riyaz Khan –

respondent No.4.

Brief facts leading to filing of this writ

petition are:

Petitioners in this writ petition seek permission to

prosecute respondent Nos.1 and 2, who were the sitting

member and Chairman respectively of the Karnataka

State Board of Waqf for having mortgaged the waqf

property i.e., land measuring 7 acres in Sy.No.34,

Brahmapura Village, Kalaburagi, (hereinafter referred

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to

as

“the

petition

property”

for

the

sake

of

convenience) by corrupt practice.

It is averred in the petition that the petition

property belongs to Dargah Hazarath Khaja Bande

Nawaz, (hereinafter referred to as “Waqf institution”)

registered under the Karnataka State Board of Waqf

Act, 1959 (“the Waqf Act” for short). It is averred that

the Khaja Education Society Gulbarga (“the Society” for

short) was established by Sajjadanasheen of Dargah

Hazrath Khwaja Bande Nawaz under the provision of

the Societies Registration Act, 1960 (“Registration Act”

for short). The management and administration of the

said waqf and its property is vested with the mutawalli

and Sajjadanasheen Ali Jana and the Society has its

registered office in the land belonging to the waqf

where Sajjadanasheen is the president of the Society.

It is averred that the land was leased out by the waqf

to the Society for a period of 33 years and continues to

occupy the property as a lawful tenant. It is further

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stated that the Society is engaged in imparting

education in various fields to the poor and had

proposed to establish a general and teaching hospital in

the name of Khaja Bande Nawaz by constructing a huge

building on the land.

This being so, the Society felt necessary to

take financial assistance from the bank in order to

complete the building/project and proposed to raise a

loan to the tune of Rs.12.00 crores from the

nationalized bank and the bank insisted for security of

property on which the proposed work will take place, as

such, the Sajjadanasheen requested the Waqf Board to

grant permission to mortgage the land and the matter

was placed before the Board in its meeting and “No

Objection Certificate” (“NOC”) was issued granting

permission to mortgage the property. Subsequently, a

letter was addressed by the Deputy General Manager of

State Bank of Hyderabad, Gulbarga not to release the

loan amount since “NOC” was not yet approved by the

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Board. In the meanwhile, it appeared that the legal

opinion was sought from the advocate who had an

opined that the lessee of the waqf property had no right

to mortgage the waqf property or seek permission

under Section 51 read with Rule 44 of the Waqf Act. It

is further averred that ignoring the legal opinion, the

then administrator in clear violation of Section 51 of the

Waqf Act had proceeded to approve the proposal to

grant loan on a condition that the building so

constructed shall be registered as an additional waqf

property and the Society availed the loan mortgaging

the waqf property belonging to the Dargah Hazarath

Khaja Bande Nawaz i.e., the waqf institution.

5.

Per contra, learned High Court Government

Pleader appearing for respondent No.1 would submit

that the petition in the present form is not maintainable

either in law or on facts and sought to dismiss the writ

petition. It is stated that the power of leasing the waqf

property is the discretionary power of the Waqf Board

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and the petition property belongs to the waqf, which is

registered under the Waqf Act and it has been leased

out to the Society called “Khaja Education Society”

Kalaburagi, which ru