HON’BLE SRI JUSTICE GODA RAGHURAM AND HON’BLE SRI JUSTICE P. DURGA PRASAD W.P. No. 989 of 2007 DATED: 20.06.2011 Between: B. Rajasekhara Reddy and 17 others .. Petitioners And 1. The A.P. State Wakf Board 2. The District Collector 3. The Inspector and Auditor of Wakfs 4. J.A.Rahman Khan .. Respondents O R D E R:- (Per Hon’ble Sri Justice Goda Raghuram) Heard Sri Vedula Venkata Ramana, learned senior counsel for the petitioners, Sri D.Prakash Reddy, learned senior counsel instructed by the learned Standing Counsel for A.P. Wakf Board for respondent Nos.1 and 3, the learned Government Pleader for Revenue for respondent No.2 and Sri Md. Fasiuddin, learned counsel for respondent No.4. A Notification published by the Andhra Pradesh State Wakf Board (for short “the Board”), in the A.P. Gazette dated 01.09.2005 insofar as concerns the addendum to the earlier notification of Wakf property published at Sl. No.3035 in the A.P. Gazette dated 24.10.1963, is assailed in this writ petition. By the said addendum, Column No.12(a) in the earlier Notification dated 24.10.1963 (pertaining to Sl. No.3035) is amended to incorporate and enumerate (Sy.No.19; Inam land – Dry; T.D.No.1679; and extent of Ac.59.90 cents). In the earlier Gazette Notification dated 24.10.1963 (which is a notification pertaining to the list of endowed properties to Shia and Sunni wakfs) Sl.No.3035 pertains to a Mosque called the Khasim Sahib Mosque in Dinnedevarapadu village of Kurnool Mandal and District. In Column Nos.10, 11 and 12 of this Notification pertaining to Sl. No.3035, there is no mention of any title deed or any details or extent of properties, which are possessed or owned by the Mosque specified to be Khasim Sahib Mosque. In purported endeavour to rectify this omission the impugned addendum vide the Gazette dated 01.09.2005 was issued. The petitioners claim to be owners of distinct extents of lands in Sy.No.19 of Dinnedevarapadu village, and are thus aggrieved by enumeration of the extent of Ac.59.90 cents in Sy.No.19 as property belonging to the Khasim Sahib Mosque in the village. The reason for initiating this litigation is that the petitioners, who claim to be owners of several extents of land in Sy.No.19 of Dinnedevarapadu village, and some of whom have made constructions in the properties they claim to own, are being periodically subjected to issuance of notices by the Board under Section 54 of the Wakf Act, 1995 (for short “the 1995 Act”) claiming title to the property and seeking their eviction from the properties in question. These periodical notices are being issued by them prior to the impugned addendum and with greater periodicity after the addendum is issued. The petitioners also assert that their right to peaceful enjoyment of their properties would be in jeopardy and they would not be able to alienate their lands should they so desire on account of the impugned Gazette Notification and on account of the fact that in respect of properties notified to be wakf properties alienations cannot be registered on account of provisions of Section 22-A of the Registration Act. While the petitioners set out a general plea of having purchased the properties they claim to own from some of the defendants in an earlier suit O.S. No.43 of 1969 on the file of the Court of the Subordinate Judge, Kurnool; there is neither any material pleaded nor any clear assertion as to from which of the defendants in O.S.No.43 of 1969 the petitioners purchased which properties in Sy.No.19. Earlier, the Board instituted O.S. No.43 of 1969 for declaration of its title to the schedule property against nine defendants arrayed therein. The Board claimed “Dinnedevarapadu Mosque” to be a public wakf where the Muslim public of the area were congregating and offering prayers from times immemorial and continue to do so; that it is a public muslim religious and charitable institution; is a public wakf by user; and that the schedule property was given in grant to the “Dinnedevarapadu Mosque” for maintenance, upkeep and service of the Mosque. It was further alleged that the inamdars of the suit property had wrongfully alienated the same in favour of defendants who were in possession pursuant to such illegal transfer; that they have acquired no title, right or interest in the property; and therefore, relief should be granted. In O.S.No.43 of 1969, the first of the issues framed was whether the suit property is not wakf. By the judgment dated 27.10.1969 of the learned Subordinate Judge, Kurnool, the suit was dismissed. On the issue whether the suit property is not wakf, the civil Court reasoned and concluded as under: “This issue clinches the entire case because according to the defendants, the alleged mosque suit institution is not in existence at all and these defendants have been in possession and enjoyment openly and uninterruptedly for the prescribed period and have perfected their title by adverse possession. The plaintiff has examined the Inspector Auditor of plaintiff - Wakf Board of Kurnool. His evidence is that there is a mosque in Kottala which is the hamlet of Dinnedevarapadu in Kurnool Taluk. This mosque has got properties and S.No.19 is endowed to the suit institution. The Commissioner, Wakf Board of Andhra Pradesh has submitted his report. True copy of the same is Ex.A1. On the basis of this report, there was notification in the Gazette dated 24.10.1963, Page 1 of the Gazette is marked as Ex.A2. The relevant entries are at pages 18 and 19 under Serial Nos.30 and 36 marked as Exs.A2(a). The suit land is in wrongful possession of the defendants and the Wakf Board is entitled to recover it. It was sold by the then mutavalli, Khasim Sahib prior to Ex.A1. In cross-examination, he admits that he has not seen Kottala village. He is not aware if there is any village by the name “Kottala” in existence, for the last 60 years. He has not seen Dinnedevarapadu village or has he seen the mosque. According to the report of the Commissioner, the mosque is in a dilapidated condition and denies that there is no mosque in existence. He admits that he has not verified whether the suit institution exists even after going through the written statement of the defendants. He is not aware of any other records that indicate that the suit properties belong to the suit institution and are dedicated to the suit institution. He is not aware of the enquiry held and of any records to show that the properties were alienated ten years prior to Ex.A1. He is not aware if anyone of the mutavallies who alienated the properties, are alive. He is not aware that D3 has concern with the suit lands. With this evidence on record, when the defendants have all denied that no enquiry was made from them before notifying the suit properties has wakf properties, it cannot be inferred that the notification was effected after due enquiry. The admission that he has not seen Dinnedevarapadu village nor has he seen the suit institution (mosque) existing, the evidence of this witness has failed to plaintiff’s case, and shows no such institution exists in Dinnedevarapadu. Defendant Nos.2 and 4 examined themselves as DWs.1 and 3. DW3, who is (defendant – 4) in the suit, would say that he has purchased the suit land from Venkamma under Ex.B1. Venkamma had purchased it previously under Ex.B2. He would say that there is no Masjid in the village as alleged in the plaint. There is no hamlet by the name of Kottala to his knowledge. There are no Muslims at all in his village and there was no publication by beat of drum in the village that there was enquiry about this land. It is elicited from him in cross- examination that in Exs.B1 and B2 under which he purchased this land and his predecessor in title purchased it, the land described as Masjid chenu and Inam pungi and that one Kottala is there near Nagalapuram six miles away from this village. Merely because the land described in Exs.B1 and B2 has masjid chenu and inampunji, it cannot be construed that the land is endowed and is wakf for the suit institution. In his evidence, it has also come to know that there is no masjid in his village. There was no hamlet known as Kottala and more particularly he would say that there are no muslims at all in his village and no mosque exists, the question of property being wakf for the mosque cannot accepted. Another elderly villager of Dinnedevarapadu village is examined who supports the defendants’ contention that there is no mosque in the village. He is aged 67 years and would say that since childhood no mosque is existing. He has not heard the name of any village as Kottala in the vicinity of the village. Nothing elicited from him in cross-examination makes his evidence suspicious or doubtful. D2 examined as DW3. He would say that he purchased ten acres from the suit schedule land under a sale deed No.473. Ex.B9 is the certified copy of the sale deed. He also denies that there is any mosque by name Dinnedevarapadu. No such mosque ever existed. There was none at the time he purchased the land that is existing at present. He is a man aged 60 years and a native of Dinnedevarapadu. He also says that there are no Muslims in his village and that his vendors had no connection with any mosque. As per Ex.B9, it admits that the land is shown as inam land. With this evidence on record, the existence of the mosque which is the suit institution, is eliminated. The natives of Dinnedevarapadu who are elderly persons themselves denied the existence of the suit institution, and they also deny any enquiry as made from them before the alleged notification. In these circumstances, with the consistent evidence of the defendants and DW2, the existence of the alleged mosque and the suit property being wakf, becomes very doubtful. Merely because of the Gazette notification without proper enquiry the plaintiff - Wakf Board cannot contend that the properties are wakf properties for the suit institution. This issue is settled against the plaintiff.” Since the petitioners do not clearly assert or establish that they were parties or privies to O.S. No.43 of 1969 and are deriving title from the defendants therein, the judgment in O.S.No.43 of 1969 cannot be held to be a determination conclusive on the respondents including the Board as a judgment inter-partes. The plea of the petitioners that the judgment in O.S.No.43 of 1969 constitutes res judicata or operates as an estoppel against the respondents, disentitling the Board and the respondents to assert a title against the petitioner, is therefore, misconceived. Sri Vedula Venkata Ramana, learned senior counsel would however urge that the impugned Gazette Notification is unsustainable since: a) issuance of addendum is without power or authority under the provisions of the 1995 Act; b) there is no record or a factual basis for assertion of the title in the lands in Sy.No.19 of Dinnedevarapadu village in favour of the mosque or the Wakf Board; c) that the addendum is misconceived since the Survey Commissioner’s Report dated 09.03.1956 (which is asserted in the counter affidavit of the respondent-Board) to be the basis for the addendum, is itself vague and does not clearly establish the title of the mosque; d) on account of the long lapse of time between 24.10.1963 when the first Gazette Notification was issued (not enumerating any property in favour of Khasim Sahib Mosque) and the present addendum Notification specifying the extent of land and particulars, the action of the Wakf Board in issuing the addendum to the detriment of the petitioners without notice or opportunity to them, is illegal and unsustainable. On 05.04.2007, the Chief Executive Officer of the Board filed a counter affidavit styled an “Interim Counter Affidavit”, on behalf of the Board and on behalf of the 3rd respondent - the Inspector and Auditor of Wakfs, Kurnool. To the extent relevant to the material for the purposes of this lis, this counter asserts that the State appointed a Survey Commissioner as required under Section 5 of the Wakf Act, 1954. The said Commissioner conducted a survey of the several wakfs in the State as on the date of enforcement of the Wakf Act, 1954 and his report is based on local inspection, the title deeds and the Inam fair register. While publishing the notification as required under Section 5(2) of the Act, the error occurred in omitting to mention the extent of land pertaining to the institution and therefore the Board, after making enquiry and having reasons to believe that the land in Sy.No.19 of Dinnedevarapadu village admeasuring Ac.59.90 cents is wakf property satisfying the requirements under Section 79 of the Wakf Act, 1954, corresponding to Section 40 of the 1995 Act issued the addendum incorporating particulars of the extent of the land belonging to the mosque. This counter clearly asserts that the Survey Commissioner’s Report dated 09.03.1956 is the basis for the addendum. It is further asserted that the Board has power to issue an addendum and that any person aggrieved by such notification has to file a suit and that no proceedings under Article 226 of the Constitution of India can be initiated. The counter affidavit is singularly silent as regards the contention of the petitioners that the judgment of the civil Court in O.S.No.43 of 1969 is a conclusive determination of the absence of title to the schedule property, in the mosque. The impugned addendum Notification dated 01.09.2005 does not set out any particulars or reasons why it is issued, incorporating “Sy.No.19; T.D.No.1679; Ac.59.90 cents”, as property of the “Khasim Sahib” Mosque, enumerated at Sl. No. 3035 in the earlier Notification dated 24.10.1963. From the counter affidavit filed on behalf of the Board, it must be inferred that the report dated 09.03.1956 of the Commissioner of Wakfs is the genesis and the sole basis for the addendum Notification. A xerox copy of the Commissioner’s Report is placed before us for perusal. In column No.5(a) of the annexure to the Commissioner’s Report (the only document furnished for our perusal) against the column pertaining to the name of the Wakif, it is stated “not known”. As against Column No.6 pertaining to original Wakf-deeds, Title deed, Patta Nos. and dates, only T.D.No.1679 is mentioned; and as against the name of Muthavallis and their address in Column No.10, the name Khasim Sahib is mentioned; while Column No.11 pertaining to the rule of succession to the office of the Muthavalli, it is specified to be hereditary by custom. It is also enumerated in the annexure to the Commissioner’s Report dated 09.03.1056 that “Sy.No.19 was sold away by the Inamdar about 10 year back to 1) P.Swami Reddy; 2) P. Venkamma, W/o.Perugu Govinda Reddy; 3) Narayana Reddy; 4) Krishta Rao’ 5) Boya Venkanna; 6) P. Hussain Sahib and 7) Hanumantha Reddy of Dinnedevarapadu village and that the property has not been resumed to the Government”. Against Column No.12(a) pertaining to encumbrances if any on the properties, it is specified that the property was alienated about 10 years back. Against Column No.19 pertaining to how the wakf is administered at present, the annexure states that the mosque has fallen down and is not maintained at present. There is also an endorsement in the annexure that action under the Wakf Act for recovering the lost property may be taken in the case and that a suit should be filed to recover the alienated land. Neither from the annexure to the report dated 09.03.1956 of the Commissioner of Wakfs nor from any document produced on behalf of the Board, by the respondents is it apparent as to who endowed or settled this property in favour of the mosque specified as “Kottala mosque”; by what instrument; on which date and in respect of what extent of land and in which specified territory. The basis on which the Commissioner of Wakfs recorded this property as belonging to the “Kottala Mosque” is not apparent from the Commissioner’s Report. Since it is the unequivocal stand of the respondents that the impugned addendum notification is based exclusively on the Commissioner’s Report of 1956 and since as analysed hereinabove, the Commissioner’s Report does not clearly disclose any material nor refers to evidence of endowment of this property in favour of the mosque, in the considered view of this Court, the Commissioner’s Report cannot per se constitute the exclusive basis for an assumption by the Board that the property belongs to the mosque. The consequent action of the respondent-Board in issuing the impugned addendum Notification, cannot therefore be sustained. It is the synoptic submission of Sri Vedula Venkata Ramana and the learned counsel for the respondents including Sri D.Prakash Reddy, learned senior counsel that the provisions relating to survey of wakfs and publication of lists of wakfs in the 1995 Act are substantially similar and comparable to complimentary provisions of the Wakf Act, 1954. Section 4 of the 1995 Act enjoins that the State Government may, by notification in the official Gazette, appoint for the State a Survey Commissioner of Wakfs and sub-section 3 of Section 4 indicates that the survey commissioner shall, after making such enquiry as he may consider necessary, submit his report, in respect of wakfs existing at the date of commencement of this Act in the State or any part thereof, to the State Government containing the several particulars enumerated in Clause (a) to (f) under Section 4(3). The particulars that are required to be incorporated in the survey commissioner’s report include such other particulars relating to each wakf as may be prescribed. Section 5 of the 1995 Act enjoins that on receipt of a report under sub-section 3 of Section 4, the State Government shall forward a copy of the same to the Wakf Board and sub-section 2 of Section 5 enjoins the Board to examine the report forwarded to it under sub-section (1) and publish in the Official Gazette, a list of Sunni wakfs or Shia wakfs in the State, whether in existence at the commencement of this Act or coming into existence thereafter to which the report relates, and containing such other particulars as may be prescribed. On a true and fair construction of the relevant statutory provisions, it is clear that the report of the Commissioner of Wakfs submitted to the State Government under Section 4 and forwarded to the Wakf Board under Section 5(1) is the basis for issuing a notification. The counter affidavit of the Board also asserts (as already noticed) that the impugned addendum notification was issued on the basis of the wakf commissioner’s report of 1956 vintage. In the case on hand, from a careful perusal of the records, it is the indisputable situation that earlier the Board had litigated claiming title to the extent of Ac.59.90 cents in Sy.No.19 of Dinnadevarapadu village by instituting O.S.No.43 of 1969 wherein a declaration of title was claimed in respect of this very same property. The civil Court clearly declared that the plaintiff therein failed to establish title to the property. The judgment also records that merely because of the Gazette Notification (Gazette Notification dated 24.10.1963) issued without property enquiry, the plaintiff – Wakf Board cannot contend that the properties are wakf properties of the suit institution. It is also a curious instance and this incoherence is not explained by the Board that in O.S.No.43 of 1969, the Mosque is described as “Dinnadevarapadu Mosque” whereas the Survey Commissioner’s report specifies the name of the wakf to be “Kottala Mosque”. While nothing is mentioned in the counter affidavit filed by the Board as to whether any notice was issued to the petitioners, who are admittedly in possession of the schedule property, before issuing the impugned addendum notification; it is conceded by Sri D.Prakash Reddy, learned senior counsel appearing for the Board that the addendum notification was not issued after a notice or affording any opportunity to the petitioners. The petitioners are admittedly in possession of respective parcels of land in Sy.No.19 of Dinnedevarapadu village, since long. Demonstrably as well, the Board suffered an adverse decree in O.S.No.43 of 1969 wherein its claim for declaration of title for the very same property, in Sy.No.19 was negatived. In the circumstances, before issuing the addendum notification and that too, on the sole basis of the incoherent survey commissioner’s report dated 09.03.1956, and after nearly forty years after the earlier Notification, principles of fair play enjoin that the petitioners ought to have been put on notice before the impugned notification adversely affecting their interests or claims to title in the property, is issued. This failure to issue notice to the petitioners and soliciting their objections to issuance of an addendum notification is a fatal infirmity which also vitiates the impugned addendum notification. Sri Vedula Venkata Ramana, learned senior counsel has also contended that in the absence of any specific power conferred under the provisions of the 1995 Act enabling the Wakf Board to issue a corrigendum, erratum or addendum to the 1963 Gazette Notification, no such addendum could have been notified. This contention does not commend acceptance of this Court. A Gazette Notification issued under the provisions of Section 5 of the 1995 Act or under the complimentary provisions of the Wakf Act 1954 is a public notification of the factum of certain properties belonging to specified wakf institutions on the basis of the material in the possession of the Board enumerated in the report of a Commissioner of Wakfs, generated under the provisions of the Act. Since it is the case of the respondent- Board that the description and enumeration of the properties of the wakf institution at Sl. No.3035 of the 1963 Gazette Notification was not done by error, the impugned addendum notification has been issued. The issuance of a Gazette Notification is an administrative Act, and therefore, on justifiable grounds including an earlier error and for rectification of such error, an exercise once conducted may be conducted again and an erratum or modification of the earlier Gazette Notification could in principle be issued. However, since the issuance of a Gazette Notification under Section 5 of the 1995 Act incorporating description of particulars of particular properties as belonging to a specified wakf institution has adverse civil consequences on persons lawfully claiming title and / or possession to any such property to be notified, principles of fair play warrant that persons in possession of and claiming title to the properties to be notified should be put on notice before the issuance of any such erratum or addendum notification. It is also axiomatic that the issuance of an addendum or erratum notification is not a mere ritual. Before issuance of an erratum or an addendum notification specifying description of properties as belonging to wakf institution, there should be credible and probative material before the Board to justify the assumption that the property to be notified belongs to a wakf. In the absence of any material justifying such assumption, the issuance of an erratum or addendum notification is an arbitrary conduct and cannot be sustained. From the record it is apparent that despite availability of the Wakfs Commissioner’s Report as early as on 09.03.1956, there was specification of the description or particulars of the extent of Ac.59.90 cents in Sy.No.19 of Dinnedevarapadu village, in the earlier Gazette Notification dated 24.10.1963. Fourty two years later is the addendum issued on 01.09.2005. While it is contended on behalf of the petitioners by Sri Vedula Venkata Ramana, that there is no explanation for the negligence of the Wakf Board in taking steps to rectify the alleged error in the earlier Gazette Notification after such long lapse of time and despite the Board having been clearly sensitized to its lack of title qua the judgment of the civil Court dated 27.10.1969 in O.S.No.43 of 1969, neither in the counter affidavit nor in oral argument does the Board proffer any justification why the Board woke up at this distance of time and