1985 PLP 1262 (SCMR)

Malik M. Qayyum, Advocate and Sh. A. Karim, Advocate‑on- Record for Petitioners. S.Abdul Haq, Senior Advocate, S. Riazul Haq, Advocate and Iftikharuddin Ahmad, Advocate‑on‑Record for Respondent. Date of hearing: 16th March, 1980. DORAB PATEL, J.‑‑Both these petitions for leave turn on identical facts and raise the same questions of law. The petitioners in the two petitions are the Mutawallis of a Waqf created by .the late Khan Bahadur Sh. Muhammad Naqi on 20th April, 1931. The Waqf comprises immovable property known as Naqi Market in The Mall, Lahore and the dedication is to the Khan Bahadur Sh. Muhammad Naqi's children and descendents, but the ultimate benefit is reserved for charitable purposes. According to the terms of Waqf Deed, after the death of Khan Bahadur, Sh. Fayyazuddin was the first Mutawalli and then his son Sh. Rashid uddin, who was also a beneficiary of the Waqf. Then on the death of Sh. Rashiduddin, the petitioners in the two petitions became the Mutawallis of separate portions of the Waqf property. Now, notices under section 56(5‑A) of the Income‑Tax Act, 1922 (hereinafter called the said Act) were served both on the late Mutawalli Sh. Rashiduddin and on the tenants of the property for the recovery of income‑tax on the income of the Waqf. Apparently, Sh. Rashiduddin failed to comply. with these notices and no action was taken for a time with the result that the arrears have become quite heavy. Similarly, according to learned counsel, the tenants did not comply with the notice served on them, therefore, in the events that happened, notices were served on the petitioners after they became Mutawallis, calling upon them to pay the arrears due from their predecessor Mutawalli, therefore, they challenged these notices directly in writ petitions filed in the Lahore High Court. But the learned Single Judge, who heard these writ petitions, held that on a proper construction of the said Act, the petitioners as Mutawallis were liable for the income‑tax arrears which were due and had been left unpaid by the previous Mutawalli. Accordingly, but his judgment dated 9‑6‑1976, he dismissed the writ petitions of the petitioners in both these petitions for leave. Hence these petitions for leave. Learned counsel submitted that the petitioners in the two petitions were admittedly not the executors or administrators or legal representa tives of the deceased Mutawalli, within the meaning of section 24‑B of the said Act, therefore, the learned Single Judge had erred in holding that they were liable to discharge the liabilities of their predecessor Mutawalli. Mr. Abdul Haq, on the other hand, supported the judgment under appeal on the ground that although the petitioners were not the legal heirs of the deceased Mutawalli, they had been maintained by the Mutawalli, because they belonged to the family of the late Khan Bahadur Sh. Muhammad Naqi. At this stage we would only observe that the judgment is one of first impressions and as it raises questions of law of public importance, we would grant leave to examine the validity of the view taken in it. Security in the sum of Rs. 2,000 in each petition and the appeals will be made ready on the present record with liberty to the parties to file additional documents and will be heard together. M.I. Leave granted