Kusupati Siva Prasad vs The State Of Andhra Pradesh,
2023 Latest Caselaw 2554 AP

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     IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

            THE HON'BLE SRI JUSTICE NINALA JAYASURYA

                   WRIT PETITION No.13905 of 2021
Between:-

Kusupati Siva Prasad                                      ....   Petitioner
                                     And

1) The State of Andhra Pradesh,
represented by its Principal Secretary,
Minority Welfare Department

2) The A.P. State Wakf Board,
represented by its Chief Executive Officer                ....   Respondents

Counsel for the Petitioner   :   Mr.S.M.Subhani, assisted by
                                 Mr.Suryam Gannavarapu

Counsel for the Respondents:     Learned Government Pleader for
                                 Social Welfare

                                 Mr.Shaik Kareemullah, Learned
                                 Standing Counsel for Wakf Board
ORDER:

Heard Mr.S.M.Subhani, learned counsel appearing for the petitioner.

Also heard learned Government Pleader for Social Welfare and Mr.Shaik

Kareemullah, learned standing counsel appearing for the respective

respondents.

2. The present Writ Petition is filed seeking to declare the Errata

Notification published in W.No.32, Part II - Misc. dated 13.08.2019 to the

Original A.P. Gazette Notification No.43A, Supply, Part-II dated 24.10.1963

at Sl.No.3124 in Pages 30 & 31 under Column No.9 in so far as inclusion of

the land of an extent of Ac.6.51 cents & Ac.4.54 cents in Sy.No.165/1

corresponding to Sy.No.165 and 166/1 corresponding to Sy.No.166

respectively of the petitioner out of total extent of Ac.19.84 cents & Ac.13.31

cents in Sy.Nos.165 & 164 respectively, situated in Munagalapadu Village,

Kurnool Mandal, Kurnool District, as illegal, arbitrary, unconstitutional,

without jurisdiction, contrary to the provisions of the Wakf Act and for a

consequential direction to the respondents to de-notify the petitioner‟s

property from the impugned Errata Notification and pass such other orders

as this Court deems fit.

3. Learned counsel for the petitioner referring to the averments made in

the Writ Affidavit and various provisions of the Wakf Act, 1995, advanced

elaborate arguments. He submits that one Kusupati Ramaiah, the

petitioner‟s forefather purchased a total extent of Ac.19.84 cents in

Sy.No.165 and Ac.13.31 cents in Sy.No.166, total admeasuring an extent of

Ac.33.15 cents situated in Munagalapadu Village, Kurnool Mandal, Kurnool

District, through a Registered Document No.1190/1954 dated 10.07.1954 for

a valid sale consideration. He submits that during the family partition, an

extent of Ac.11.05 cents i.e., the subject matter property fell to the share of

the petitioner‟s father Mr.Kusupati Madanagopal, since then the petitioner‟s

family was in peaceful possession and enjoyment of the same. He submits

that without verification of the relevant revenue records as also the right,

title and possession of the petitioner in respect of the above mentioned

property, the impugned Errata Notification was issued contrary to the

provisions of the Wakf Act, 1995. In elaboration, with reference to the

provisions of the said Act i.e., Section 4(1) etc., he submits that the State

Government may by Notification in the Official Gazette, appoint a Survey

Commissioner for the survey of the Wakf lands and after making such

enquiries, the Survey Commissioner of Wakf may submit his report in

respect of Auqaf existing at the date of commencement of the Act in the

State or in part thereof to the State Government containing the relevant

particulars of Auqaf and on receipt of the said report, the State Government

will forward the same to the Wakf Board for publication of List of Auqaf, as

contemplated under Section 5(1) of the Act and that the Wakf Board on

examining the report forward it back to the Government, within a period of

six (6) months, for publication in Official Gazette, as contemplated under

Section 5(2) of the Act. He submits that Section 5(4) of the Act provides that

the State Government shall maintain a record of the List published under

Section 5(2) of the Act from time to time and under Section

5(3) of the Act, the revenue authorities shall include the List of Auqaf

referred to in Section 5(2) of the Act, while updating the Land Records and

shall also take into consideration the said list, while deciding the mutation in

the Land Records.

4. The learned counsel for the petitioner further submits that the

Notification published under Section 5(2) of the Act is final and conclusive,

as envisaged under Section 6(4) of the Act, unless it is modified pursuant to

a decision of the Tribunal under Section 6(1) of the Act and that any dispute

or grievance with regard to the publication of Notification under Section

5(2) of the Act shall be raised before the Tribunal within a period of one

year from the date of publication of the Notification. He contends that in the

present case, the Original Gazette Notification pursuant to a report of the

Survey Commissioner appointed by the Government was published on

24.10.1963, wherein the lands in question were not included and the

2nd respondent had not raised any objection to the said Notification nor

raised any dispute/questioned the same, before the Wakf Tribunal.

5. Emphasizing further, the learned counsel submits that the

2nd respondent has not challenged the said Original Gazette Notification

dated 24.10.1963 within the time stipulated by the Act or taken steps

seeking rectification/modification to the Official Gazette Notification and as

such the same has become final. He submits that in the light of the

unambiguous statutory provisions, the issuance of Errata Notification dated

13.08.2019 impugned in the Writ Petition is not only without jurisdiction,

but also contrary to the material on record i.e., Communication dated

12.08.2018 of the Inspector Auditor, Wakf, Kurnool District addressed to the

revenue authorities, wherein he requested to send proposals to the

2nd respondent for taking necessary action to de-notify Sy.Nos.165/1, 166/1

& 166/3 to an extent of Ac.33.15 cents of Munagalapadu Village, Kurnool

District, while stating that the said survey numbers were not published

either in the A.P. Gazette or in the Survey Commissioner‟s report and further

that the property had not carried out in any of the Wakf Records. Placing

reliance on the decisions of the Hon‟ble Supreme Court in Madanuri Sri

Rama Chandra Murthy vs. Syed Jalal1 and State of Andhra Pradesh

(Now State of Telangana) vs. A.P. State Wakf Board and Others 2,

the learned counsel would contend that the matter is squarely covered by

the said decisions and seeks to allow the Writ Petition.

6. Per contra, the learned standing counsel while refuting the said

submissions supported the issuance of Errata Notification, which is under

challenge. On the basis of the averments in the Counter Affidavit filed on

behalf of the respondents 1 & 2, he submits that pursuant to the Survey

Commissioner‟s report dated 30.04.1956 in respect of Zulekani Mosque of

Munagalapadu Village, the Original Gazette was published in A.P. Gazette

Notification No.43-A dated 24.10.1963. He submits that as per the Survey

Commissioner‟s report dated 30.04.1956, a Wakf was made in favour of the

said institution in respect of the lands in T.D.Nos.3073, 3716 & 3718

admeasuring Ac.263.60 cents with different survey numbers. The learned

counsel sought to justify the issuance of Errata Notification stating that in

(2017) 13 Supreme Court Cases 174

2022 SCC OnLine SC 159

the Original Gazette Notification some survey numbers were not mentioned

inadvertently, that once a Wakf is always a Wakf and the petitioner would

not get any valid title in respect of Wakf properties and the alienation of the

same is void ab initio. He further contends that the Writ Petition itself is not

maintainable and according to Section 83(2) of the Act, the Wakf Tribunal

alone is competent to decide as to whether the property is Wakf or not.

Making the said submissions, the learned standing counsel seeks dismissal

of the Writ Petition. He also places reliance on the decision of a Division

Bench of erstwhile Common High Court of Andhra Pradesh in Lanco Hills

Technology Park Private Limited and others vs. Mahaboob Alam

Khan and others3 and the decision of the Hon‟ble Supreme Court in State

of Andhra Pradesh & Others vs. Twin City Jewellers Association &

Others4.

7. This Court has considered the submissions made and perused the

material on record. Though extensive arguments were addressed with

reference to the provisions of the Act, for the sake of brevity, the same are

not reproduced. Suffice to state that Section 4(1) of the Act envisages that

the State Government may, by Notification in the Official Gazette, appoint

for the State, a Survey Commissioner of Auqaf as may be necessary for the

purpose of making a survey of Auqaf in the State and Section 4(3) of the Act

contemplates that the Survey Commissioner shall, after making such inquiry

2012 (4) ALT 136

(2005) 13 Supreme Court Cases 552

as he may consider necessary, submit his report, in respect of Auqaf existing

at the date of commencement of the Act, to the State Government in terms

of the said Section. Section 5 of the Act provides for publication of List of

Auqaf as per the procedure contemplated therein and Section 6 of the Act

deals with disputes regarding Auqaf and Section 7 of the Act empowers the

Tribunal to determine the disputes regarding Auqaf. Section 6(4) of the Act

specifically provides that the List of Auqaf shall, unless it is modified in

pursuance of a decision of the Tribunal under sub-section (1) shall be final

and conclusive.

8. Testing the arguments of the learned counsel for the petitioner with

reference to the above statutory provisions, it may be pertinent to note that

there is no dispute as to the issuance of Original Gazette Notification dated

24.10.1963, with reference to the properties of Wakf situated in

Munagalapadu Village. Referring to the said Notification, the learned counsel

contended that admittedly the subject matter properties were not mentioned

in the Original Gazette Notification and if at all, the 2nd respondent has any

objection, it should have raised a dispute as contemplated under

Section 6 of the Act, within the statutory period of one year, but the same

was not done and thereby the Original Gazette Notification containing the

List of Auqaf has become final. The said contentions in the light of the

statutory provisions referred to supra merits acceptance.

9. Coming to the contentions advanced on behalf of the respondents in

issuing the impugned Errata Notification, a plea was taken in the Counter

Affidavit that due to inadvertence or mistake, the survey numbers were not

printed. So, in order to rectify the same, an Errata Notification dated

13.08.2019 was issued in respect of the lands situated in Munagalapadu

belonging to the Wakf institution. As noted above, the Original Gazette

Notification was issued on 24.10.1963 and after a lapse of about 56 years,

the Wakf Board sought to rectify the so-called mistake in not mentioning the

survey numbers, that too after the List has become final and conclusive.

10. In Madanuri Sri Rama Chandra Murthy referred to supra, the

Hon‟ble Supreme Court was dealing with an appeal filed against the orders

of the Hon‟ble High Court reversing the orders passed by the Wakf Tribunal.

The respondents before the Supreme Court, filed a suit before the Andhra

Pradesh State Wakf Tribunal and the appellant/defendant filed an

application under Order VII, Rule 11 of CPC for rejection of the plaint.

The said application was allowed by the Wakf Tribunal and its order was set

aside by the High Court in the Revision. It is the case of the

appellant/defendant that the property is not a Wakf property, in as much as,

it was never notified as Wakf property though the Original Gazette was

published as long back as on 28.06.1962, that the property does not find

place in the Gazette notifying the same as Wakf property and that it is a

private property, further that he had purchased the same through a valid

Sale Deed. Whereas, it is the stand of the respondent that though the

Gazette Notification did not contain the property in question as a

Wakf property, the survey report disclose that the property in question as a

Wakf property and therefore the High Court is justified in interfering with the

order of the Wakf Tribunal.

11. The Hon‟ble Supreme Court while referring to the provisions of the

Wakf Act, 1995 vis a vis the Wakf Act, 1954 and the procedure with regard

to the publication of a Gazette Notification containing the List of Auqaf

properties, at Paras 17 & 18, which are relevant to the present context,

opined as hereunder:-

"17. As held by the Tribunal as well as the High Court, the property in question does not find place in the Gazette notification published under Section 5 of the Wakf Act. In other words, the property in question is not notified in the official Gazette as Wakf property. If anybody including the Wakf Board or the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the aggrieved person should have raised the dispute under Section 6 within a period of one year from the date of publication of the Gazette notification in the matter. The plaintiff has practically questioned the non-inclusion of the property in the list and the validity of the list notified in the official gazette dated 28.06.1962 after the lapse of about 50 years, i.e. in the year 2013 by filing the present suit.

18. As per Section 27 of 1954 Act (Section 40 of 1995 Act), the Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not the Board after making such enquiry as it deems fit, decide the question. The decision of the Board on any question under sub-section (1) of Section 27of 1954 Act (or under Section 40(1) of 1995 Act) shall, unless revoked or modified by the Civil Court, be final. The effect of Section 27 of 1954 Act or Section 40 of 1995 Act is that, if any property had been omitted to be included in the list of auqaf by inadvertence or otherwise, then it was/is for the Wakf Board to take action, as per said provision. In this context, it is relevant to note the observations by this Court in the case of T.N.Wakf Board vs. Hathija Ammal [1] which read thus:

"In the event, any property has been omitted by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under Section 27 of the Act. If the Wakf Board has reason to believe that a particular property is a wakf property then it can itself collect information and if any question arises whether a particular property is a wakf property or not, it may, after making such enquiry as it may deem fit decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a civil court. Such action has not been taken by the Wakf Board in this case."

12. The Hon‟ble Supreme Court while allowing the appeal and setting

aside the order of the High Court, at Para 20 held as follows:-

"20. In the matter on hand, as mentioned supra, the Tribunal and the High Court, on facts have held that the property in question is not included in the list published in the Official Gazette as a wakf property. Such non- inclusion was never questioned by any person including the Wakf Board. The Board has not exercised jurisdiction under Section 27 of 1954 Act and Section 40 of 1995 Act, though 50 years have elapsed from the date of the gazette notification. Hence, in our considered opinion, the averments in the plaint do not disclose the cause of action for filing the suit. The suit is manifestly meritless and vexatious. So also the suit is barred by law for the reasons mentioned supra."

13. In State of Andhra Pradesh (Now State of Telangana) vs.

A.P. State Wakf Board and Others referred to supra, the Hon‟ble

Supreme Court was dealing with more or less similar fact situation, as in the

present case. Before the High Court Writ Petitions challenging the Errata

Notification dated 13.03.2006 (published in the Original Gazette of State of

Andhra Pradesh on 06.04.2006) to the Notification published in A.P. Gazette

No.6-A, dated 9-2-1989 were filed. The relevant portion of Errata

Notification reads thus:-

"ERRATA NOTIFICATION OF DARGAH NZT HUSSAIN SHAH VALI, MANIKONDA (V), RAJENDRANAGAR (M), R.R DISTRICT

F.No.M1/69/PROT/RR/04 - In the Notification published in A.P. Gazette No.6-A dated 9-2-1989 at page No.262 under Sl.No.3057, 3058 and 3059 the service Inam lands attached to the subject institution were not notified. Hence the following addendum is notified."

14. The High Court after detailed examination of the matter formulated

the points for consideration, inter alia, as to whether the Errata Notification

dated 06.04.2006 is ultra vires the provisions of the Wakf Act, 1995 and

whether the Writ Petitions challenging the Errata Notifications, are

maintainable and whether they are barred, in view of the effective and

efficacious alternative remedy available under the Wakf Act, 1995.

15. The High Court while opining that once the property is treated as

„Wakf‟, it always remains a „Wakf‟, held that Section 40 of the Act is wide

enough to confer powers on the Wakf Board to issue the Errata Notification

and it is neither necessary for the Government to appoint a Second Survey

Commissioner nor for him to submit a report. In so far as the maintainability

of the Writ Petitions are concerned, the High Court held that the same are

barred on the premise that the Act requires all disputes, questions or other

matters whatsoever and in whatever manner which arise relating to a „Wakf‟

or „Wakf property‟, are to be adjudicated only by the Wakf Tribunal.

16. In the appeals against the said Judgment of the High Court, the

Hon‟ble Supreme Court formulated as many as 8 points for consideration

and the relevant with reference to the case on hand are reproduced

hereunder:-

"(1) Whether the High Court was justified in relegating the parties to the remedy before the Wakf Tribunal?

(2) Whether the Government was entitled to dispute the validity of errata notification before the Writ Court under Article 226 of the Constitution?

(3) .........

(4) Whether the notification published at the instance of Wakf Board is in exercise of power conferred under Section 32 read with Section 40 of the 1995 Act?

(5) Whether the second survey report and/or the order of the Atiyat Court could be said to be sufficient material with the Wakf Board to publish the impugned Errata notification in exercise of powers vested in Section 5 of the 1995 Act?

(6) .........

(7) .........

(8) ........."

17. After referring to a catena of Judgments, the Hon‟ble Supreme Court

held that the High Court erred in Law and in the facts and circumstances of

the case, to relegate the parties to the statutory remedy. In so far as the

second point is concerned, the Hon‟ble Supreme Court held in favour of the

Government. The Hon‟ble Supreme Court further examined the matter with

reference to the issuance of Errata Notification to the Gazette Notification

dated 09.02.1989 and the meaning of the word „Errata‟. It is profitable to

extract the relevant paragraphs, which reads as follows:-

"149. The question now to be examined is whether the Board could issue the Errata notification after a lapse of 17 years from the date of first notification, i.e., 9.2.1989. The exercise leading to the notification started with a letter from

Syed Safiullah Hussaini, the Mutawalli on 30.1.2005. He is the mutawalli mentioned in the first notification published in the year 1989. Since the notification was issued with him as Mutawalli, then his inaction for 17 long years speaks volumes of his bona-fide in initiating the process to include the large area of land as wakf.

150. We would need to examine as to what is scope and meaning of the word "errata". "Errata" is a term of French origin which means a thing that should be corrected. It means a mistake in printing or writing. Reference may be made to a judgment reported as Parvati Devi v. State of U.P.76. It was held as under:-

"20. The word "Erratum (French) means a mistake in printing or writing; a note drawing attention to such a mistake. A list of mistakes added at the end of a book.

21. The word "Errata" is a word of French origin and means 'a thing that should be corrected.' After a book has been printed, it often happens that certain mistakes are found to have been overlooked. In later editions, it is usual to insert, a list of such mistakes and to point out the necessary corrections. These are called 'corrigenda'.

xxx xxx xxx

23. In Judicial Dictionary by Justice L.P. Singh and Majumdar, 2nd Edition, page 552, while quoting the following passage in Assam Rajyik Udyog Karmi Sangha v. State of Assam, (1996) Gau. L.R. 236, (at page 241), the word "corrigendum" has been defined as follows:--

"The dictionary meaning of the word "corrigendum" means things to be correct. It means there must be an error and there is a necessity to amend and rectify it. In the garb of corrigendum, a rule cannot be altered and or changed, but that is what appears to have been done in the instant case. In order to alter or modify a rule the same procedure adopted in making of the rule have to be gone through."

24. The meaning and application of the word "corrigendum" has been considered by the Courts time and again. In Commissioner of Sales Tax, U.P. v. Dunlop India Ltd., (1994) 92 STC 571, this Court held that corrigendum is issued to correct a mistake in the notification, therefore, would relate back to the date of issuance of the original notification.

25. In Piara Singh v. State of Punjab, (2000) 5 SCC 765: AIR 2000 SC 2352, the Hon'ble Supreme Court held that there is no bar on issuing the corrigendum or „more corrigenda‟ for correcting the arithmetical error.

xxx xxx xxx

27. In view of the above, the legal position can be summarised that a corrigendum can be issued only to correct a typographical error or omission therein. However, it is meant only to correct typographical/arithmetical mistake. It cannot have the effect of law nor it can take away the vested right of a person nor it can have the effect of nullifying the rights of persons conferred by the law".

151. We find that in the facts of the present case, the Errata notification is nothing but a fresh notification altogether. Errata is a correction of a mistake. Hence, only arithmetical and clerical mistakes could be corrected and the scope of the notification could not be enlarged by virtue of an errata notification. As against 5506 sq. yards of land notified as wakf property in the year 1989, large area of 1654 acres and 32 guntas of land could not be included under the guise of an errata notification as it is not a case of clerical or arithmetical mistake but inclusion of large area which could not be done without conducting a proper Inquiry either under Section 32(2)(n) read with Section 40 or on the basis of survey report which was called by the State Government by appointing a Survey Commissioner."

18. The Hon‟ble Supreme Court after detailed examination of the matter,

allowed the appeals by setting aside the order of the High Court and

quashed the Errata Notification dated 13.03.2006.

19. In the present case, the Errata Notification to the Original Notification

dated 24.10.1963 was issued in 2019 i.e., after a long lapse of about 56

years. In the Counter, the respondents sought to justify the issuance of

Errata Notification stating that the survey numbers were inadvertently/by

mistake not mentioned in the Original Gazette Notification, though

T.D. Nos. were mentioned. Thus, it is a case of non-inclusion of specific

property and in such circumstances, the Wakf Board have remedies under

the Wakf Act, but the same were not availed, in terms of the statutory

prescription under Section 6 of the Act. Thus the Original Notification has

attained finality, as non-inclusion of the land was not questioned nor any

other statutory remedies were invoked by the Board. The ratio laid down by

the Hon‟ble Supreme Court in Madanuri Sri Rama Chandra Murthy

supra squarely applies to the case on hand.

20. In the light of the expressions of the Hon‟ble Supreme Court in the

above referred Judgments, the contentions advanced by the learned counsel

for the petitioner are upheld. The decisions relied on by the learned counsel

for the respondents in Lanco Hills Technology Park Private Limited &

others vs. Mahaboob Alam Khan & others and State of Andhra

Pradesh & Others vs. Twin City Jewellers Association & Others are

not of much aid, more particularly, in view of the Judgment of the Hon‟ble

Supreme Court in State of Andhra Pradesh (Now State of Telangana)

vs. A.P. State Wakf Board and Others referred to supra. Therefore the

contentions advanced on behalf of the respondents including about the

maintainability of the Writ Petition are rejected.

21. For the afore going reasons, the impugned Errata Notification is

declared as not sustainable in Law and the same is set aside to the extent of

inclusion of the subject property is concerned. Accordingly, the Writ Petition

is allowed as prayed for. The respondents shall de-notify the subject matter

property within a period of eight (8) weeks from the date of receipt of copy

of this order. There shall be no order as to costs. As a sequel, pending

applications, if any, shall stand closed.

_______________________ JUSTICE NINALA JAYASURYA Date: 28.04.2023

IS

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

WRIT PETITION No.13905 of 2021 Date: 28.04.2023

IS