SAYED NAJAM-UL-HASSAN KAZMI, J.--- This Constitutional petition calls in s dated 27.6.1998 and 4.2.1998 passed by respondents Nos. 1 and 2 and also notice dated 29.8.1997 issued by respondent No. 2. The case set up in the petition is that the petitioner is a Waqt created through registered deed of Waqt dated 22.5.1993. Initially, the Waqt' created was Waqf-alal-Aulad but subsequently it was converted into Waqf-alal-Allah, vide correction deed dated 29.8.1994. It is alleged that the property vests in Allah Almighty and is being used for educational purposes while Mst. Surayya is Administrator of the Trust.
2. Respondent No. 2 issued a provisional demand notice for payment of petitioner's tax. This notice was challenged by the petitioner through objection petition dated 3.1.1998, which was rejected by respondent No. 2 on 4.2.1998. The order was challenged in appeal under Section 84 of the Cantonments Act, 1924, which was rejected by respondent No. l vide order dated 27.6.1998. These two orders and also the notice requiring the payment of tax have been challenged in this petition.
3. Learned counsel for the petitioner submitted that the property, which is trust, is exempt from the payment of property tax. It was added that the petition filed by the petitioner was dismissed in a mechanical manner without giving any reason while in appeal, the view point of the petitioner was not attended to by the District Magistrate. It was contended that the assessment was made without any basis and without permitting the petitioner to adduce evidence.
4. Learned counsel for the respondents argued that the exemption could be claimed only- if the trust property was not used for profitable purposes but in this case, the petitioner was deriving considerable fee and was thus, liable to pay tax. Learned counsel for the petitioner further submitted that the petitioner could apply for exemption before the competent authority and could not assail the levy of tax before the appellate authority.
5. From the perusal of Section 99 of Cantonments Act, 1924, it is discernible that the buildings used for educational purposes and public libraries, playgrounds and Dharam Shala, which are open to public and from which no income is derived, are exempt from payment of property tax. The petitioner did raise this question before respondents Nos. 1 and 2 but both of them refused to decide the same by taking into consideration the relevant factors. From the record, it appears that respondent No. 2 failed to pass any speaking order while respondent No. 1 advised the petitioner to approach Federal Government for this purpose. As a matter of fact, as an Assessing Authority or the Appellate Authority dealing with the appeal arising from the assessment proceedings, the authorities concerned were competent to look into the- grievance of the petitioner and to find out if the provisions allowing exemption from payment of property tax were attracted or not, to the facts of the present case. It was for the Appellate Authority, to consider the available material and thereafter record findings, regarding the applicability or otherwise of Section 99(2)(b) of Cantonments Act. The authority could not advise the petitioner to approach the Federal Government for this purpose. Exemption was provided by the law itself and the only question to be resolved was as to whether the conditions attracting exemptions were in existence or not. Since no findings have been recorded by respondent No. 1 and the appeal has been dismissed, by being obvious of the provisions of law regulating the jurisdiction of Appellate Authority, therefore, the impugned order is illegal and without lawful authority. The jurisdiction vesting in respondent No. 1 having not been exercised in accordance with law, the order under challenge cannot sustain.
6. For the reasons above, this petition is allowed and the case is sent to respondent No. 1, for the disposal of the appeal of petitioner afresh, in the light of the observations hereinabove. Respondent No. 1 shall consider the available record, hear the petitioner and decide as to whether the property of the petitioner is exempt or not from the payment of property tax. The decision shall be made on its on merits and in accordance with law and till the decision of the appeal, no adverse action will be taken against the petitioner.