Premature applications for rejection of reports and appointment of new commissioners are not maintainable if proper procedures for objection and examination have not been followed.

JUDGMENT :

Kesang Doma Bhutia, J.

The petitioners have filed an application under Article 227 of the Constitution of India being aggrieved by the order of rejection of their application dated 16.12.2020 and 17.12.2020 by the Waqf Tribunal and where they have prayed for rejection of report of the Advocate Commissioner and well that of BL&LRO and for appointment of fresh Commissioner to hold local investigation of the schedule property in Suit No. 15 of 2012 on 23.02.2021.

2. For proper appreciation of the order under challenge it is necessary to discuss the history of the case in nutshell. The dispute relates to 7.95 Acres of land fully described in the scheduled of the plaint situated at Mouza-Kurchi Binodbati, J.L No. 15, under Udaynarayanpur Police Station in the district of Howrah.

3. It is the case of the plaintiffs/petitioners the property was originally owned by one Babujan Mallick who during his lifetime dedicated the property by executing a Registered Waqf Deed in the year 1919 for the benefit of his family members and also his lineal descendants. The said Waqf was a private Waqf. In the C.S. record of right the disputed property was recorded as Waqf property of Babujan Mallick, but in subsequent settlement record the property has been recorded in the name of Bahadur Molla Waqf Estate and as well in the Register maintained in the Waqf Board of West Bengal under E.C. No. 10339.

4. The predecessor-in-interest of the plaintiffs/petitioners made several representations before the Waqf Board for rectification in the Register and getting the same registered as Waqf Estate of Babujan Mallick, but in vain. Rather the predecessors of the plaintiffs/petitioners were served with notice by the Waqf Board asking them to vacate the Waqf Estate immediately and finding no other alternative the petitioners have to file Suit No. 15 of 2012 before the Waqf Tribunal for declaration that the plaintiffs are the lineal descendants of Babujan Mallick. That the recording of Estate of Babujan Mallick as Bahadur Molla Waqf Estate in the Register of Waqf is wrong. Notice of eviction dated 2nd June, 2009 is null and void. They have also prayed for declaration that one of the plaintiffs as Mutwali of the disputed Waqf Estate and permanent injunction restraining the private defendants from enjoying the usufructs of disputed property.

5. It has come on record that as per the direction of the Hon'ble High Court passed in CO. No. 466 of 2018 on 02.05.2019, tribunal was directed to hold local investigation of the property covered by deed of Waqf dated 11.11.1919 executed by Babujan Mallick and to ascertain the exact extent of property covered by the said deed.

6. That in compliance of the direction of the Hon'ble High Court, the Waqf tribunal appointed an Advocate Commissioner to make survey and cause inspection with the help of concerned BL&LRO. Advocate Commissioner and BL&LRO submitted a report to the effect that they are unable to ascertain exact extent of property covered by Waqf Deed dated 11.11.1919 executed by Babujan Mallick as the same is not identifiable. Being aggrieved by such report the plaintiffs/petitioners have filed two applications praying for rejection of such report and for appointment of a fresh Commissioner alleging that the property covered by Waqf Deed on 1919 is identifiable, but learned Advocate Commissioner and BL&LRO for reason best known to them have reported the property could not be identifiable.

7. After taking into consideration such petitions of the plaintiffs, the learned Tribunal has taken of view that the applications of the petitioners/plaintiffs are premature and without examining both Advocate Commissioner and BL&LRO it is not possible to ascertain the reason why they could not identify the property covered by Waqf Deed dated 1919 and if it is found that Advocate Commissioner and BL&LRO did not do the investigation properly then the question of appointment of fresh Commissioner would rise. If it is found on examination o