1981 PLP 69 (PTD)

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 Mutawallies of a Waqf created by the late Khan Bahadur Sh. Mohammad Naqi on 20th April, 1931. The Waqf comp rises immovable property known as Naqi Market on the Mall, Lahore and the dedication is to the Khan Bahadur, Sh. Muhammad Naqi's childern and descendants 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. Rashiduddin, who was also a beneficiary of the Waqf. Then on the death of Sh. Rashiduddin, the petitioner in the two petitions became the Mutawallies of separate portions of the Waqf property. Now, notices under section 56 (6‑A) of the Income‑tax Act, 1922 (here inafter 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 notices served on them therefore, in the events that happened, notices were served on the petitioners after they became Mutawallies, 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 the writ petitions, held that on a proper construction of the said Act, the petitioners as Mutawallies were liable for the income‑tax arrears which were due and had been left unpaid by the previous Mutawalli. Accordingly, by 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 petition were admittedly not the executors of administrators or legal representatives 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 Mutawali 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 firs 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. Leave granted.