THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION Nos.3206 and 4336 of 2006 AND WRIT PETITION Nos.4367 and 8593 of 2007 COMMON ORDER : In these writ petitions common questions of law arise for consideration and hence they are heard together and being disposed of by this common order. 2. In these writ petitions, errata Notification No.721/Prot/KHM/M3/2004, published in A.P. Gazette No.41, dated 13.10.2005 issued by the Chief Executive Officer, A.P. State Wakf Board, is challenged. In W.P.Nos.3206 and 4336 of 2006 and 8593 of 2007, notice dated 15/28.12.2005 issued by the Chief Executive Officer, A.P. State Wakf Board is challenged in addition to the aforesaid notification. In W.P.No.4367 of 2007, notices dated 7.7.2005 and 15/28.12.2005 under Section 54(1) of the Wakf Act, 1995 issued by the Chief Executive Officer, A.P. State Wakf Board are under challenge in addition to the aforesaid notification. 3. The petitioners are in occupation of small extents of lands situated in Sy.No.708 of Paloncha Village and Mandal, Khammam District. They have constructed houses after obtaining necessary permission from the Gram Panchayat vide proceedings No.201/64, dated 28.12.1963. The said houses are assessed to property tax and are assigned house numbers. 4. Notice dated 7.7.2005 (in W.P.No.4367 of 2007 additional notice dated 15/28.12.2005) was issued by the Chief Executive Officer, A.P. State Wakf Board, the 1st respondent herein purportedly under Section 54(1) of the Wakf Act, 1995. According to the said notice, the land measuring Acs.7.35 gts in Sy.No.708 is notified as Wakf property, published in A.P. Gazette No.4-A, dated 25.1.1990 and the petitioners encroached into the said land. The petitioners were, therefore, called upon to explain why the encroachment should not be removed. The petitioners submitted their explanations and defended their occupation. According to the petitioners, the land in Sy.No.708 is Government poramboke and they did not encroach upon the Wakf land. They also asserted that the Wakf property published in A.P. Gazette No.4-A, dated 25.1.1990 related to the land in Sy.No.697. The petitioners, therefore, submitted that the said show cause notice was not tenable. It is at that stage the Chief Executive Officer, A.P. State Wakf Board, has issued an errata Notification No.721/Prot/KHM/M3/2004, and got published in A.P. Gazette No.41, dated 13.10.2005 amending the survey number. Sy.No.708 is inserted in the place of Sy.No.697 and the land area is shown as Acs.7.35 gts in the place of Acs.4.31 gts. Basing on the said errata, he issued final orders on 15/28.12.2005 directing the removal of the petitioners. It is against these orders and the notification, these writ petitions are filed. 5. As noticed above, insofar as W.P.No.4367 of 2007, the petitioners approached this Court before final orders were passed. 6. Counter affidavit is filed by the Chief Executive Officer, A.P. State Wakf Board in W.P.Nos.3206 and 4336 of 2006. The 5th respondent-Paloncha Municipality, filed counter affidavit in W.P.No.3206 of 2006. In the other two writ petitions i.e., W.P.Nos.4367 and 8593 of 2007, counters are not filed though the writ petitions are pending eversince 2007. 7. Sri R. Kameswara Rao, learned counsel appearing for the petitioners submits that the land in Sy.No.708 is a Government poramboke and not a Wakf property. The notified Wakf land is situated in Sy.No.697, as was published in the Gazette dated 25.1.1990. The learned counsel further submits that the errata was issued without any basis and without conducting a survey by the Survey Commissioner. He further submits that the errata has been issued in a hurried manner with a malafide intention only after the petitioners submitted their explanations to the show cause notice dated 7.7.2005. Even after issuance of the said errata, the petitioners were not put on notice. He has placaed reliance of a certificate dated 19.10.2005 issued by the Mandal Revenue Officer, Paloncha to prove the land as Government poramboke. Therefore, according to the learned counsel, the said errata is without jurisdiction and unsustainable. 8. As per the counter affidavit filed by the Chief Executive Officer, A.P. State Wakf Board, the Wakf land exists in Sy.No.708 and it was wrongly recorded by the Survey Commissioner and the same survey number was notified in the Gazette dated 25.1.1990. An extent of Acs.2.26 gts was initially handed over to the Wakf Board in the year 1979 under a panchanama dated 26.3.1979. The Mandal Revenue Officer once again visited Sy.No.708/1 and 708/2 on 23.8.1985 and found that an extent of Acs.7.38 gts stands in the name of Muslim grave yard and handed over Acs.6.00 deleting an extent of Ac.1.35 gts as the same was under encroachment. Later a report was received from the Inspector-Auditor, Khammam with reference to the extent of the land and hence a Surveyor was deputed for verification of revenue records to ascertain the extent of land and it was found that a total area of Acs.6.00 in Sy.No.708 was recorded as Sarkari, Muslim grave yard. Hence an errata was published in A.P. Gazette No.41, dated 13.10.2005. Thus, according to the 1st respondent, the petitioners are in occupation of the Wakf land and they are liable to be evicted. 9. In the light of the aforesaid contentions, the core question that falls for consideration is whether the errata published in Gazette dated 13.10.2005 is valid and binding on the petitioners; and if so, the orders for removal of the petitioners from their respective lands are maintainable. 10. There is no dispute that the land in Sy.No.697 was notified in the A.P. Gazette dated 25.1.1990 as Wakf land on the basis of the report of the Commissioner of Wakfs, Government of A.P., Hyderabad. 11. At the relevant time Wakf Act, 1954 was in force. Section 4 of the said Act provided that the State Government might appoint a Survey Commissioner for the purpose of making survey of Wakf properties existing in the State at the commencement of the Act. The Survey Commissioner so appointed should conduct an enquiry and after identifying the Wakf properties, should submit a report to the State Government. 12. Under Section 5 of the said Act, on receiving the said report, the State Government should forward a copy of the same to the Board and the Board should examine the report and publish a list of Wakfs existing in the State. 13. Under Section 6 of the said Act, if there is any dispute as to whether a particular property, which has been specified as Wakf property in the list, is Wakf property or not, or if there is any other dispute as to the nature of the Wakfs, it was open to any interested person to institute a suit for an appropriate decision. Under Section 6(4) of the Act, subject to the decision of the civil Court, the list of Wakfs published shall be final and conclusive. 14. The aforesaid provision makes it abundantly clear that a procedure was contemplated before declaring any property as Wakf property. Following these provisions, a report was submitted by the Wakf Commissioner and on the basis of the report, the Gazette notification dated 25.1.1990 was published. Needless to say that in terms of Section 6(4) of the said Act, the said notification became final. 15. Now, the question that arises for consideration is whether the Chief Executive Officer, A.P. State Wakf Board is competent to amend the said notification. 16. It is not in dispute that no further survey was conducted by the Wakf Commissioner nor had he submitted any fresh report in the matter. As is evident from the provisions of Section 4 of the said Act, the report prepared by the Wakf Commissioner should invariably depend on an enquiry, which should precede the submission of report. None of the provisions of the Act empower the Board to act unilaterally contrary to the report of the Survey Commissioner. In any event, no such power is given to the Chief Executive Officer, A.P. State Wakf Board in the matters relating to consideration of the Commissioner’s report and publication of the list of Wakfs. Further more, the survey, which is said to have been conducted in the year 2004, is not conducted by the Wakf Commissioner and it was done by the staff of the A.P. State Wakf Board. Even the said survey was conducted without notice to the petitioners herein. 17. Hence, it must be held that the errata notification dated 13.10.2005 is without jurisdiction. The said notification is accordingly quashed. As a consequence thereof, the impugned proceedings dated 15/28.12.2005 and the related notices, which are based on the said errata notification, directing removal of the petitioners from the subject property shall also stand quashed. 18. Accordingly, these writ petitions are allowed. As a sequel, W.P.M.P.No.3977 of 2006 in W.P.No.3206 of 2006; W.P.M.P.No.5457 of 2006 in W.P.No.4336 of 2006; W.P.M.P.No.5572 of 2007 in W.P.No.4367 of 2007 and W.P.M.P.No.11024 of 2007 in W.P.No.8593 of 200 are dismissed as unnecessary. No order as to costs. ________________________ JUSTICE NOUSHAD ALI 17.10.2012. Msr THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION Nos.3206 and 4336 of 2006 AND WRIT PETITION Nos.4367 and 8593 of 2007 17.10.2012 (Msr)