' NISAR MUHAMMAD SHAIKH, J.--- These Constitutional Petitions were filed by the. Petitioners Haji Ghulam Rasool and Moulvi Saifullah Memon respectively, challenging the withdrawal of their nomination/appointment and fresh nomination/appointment of respondents Syed Bashir Ahmed Shah and Imtiaz Ahmed Qureshi respectively, as Chairman of District Zakat and Ushr Committees under the provisions of the Zakat and Ushr Ordinance, 1980 (hereinafter referred to as "the Ordinarice, 1980").
2. The case of Haji Ghulam Rasool petitioner in C.P. No,D-2200 of 2008 is that he was nominated under section 16(4)(5) of the Ordinance, 1980 as Chairman, District Zakat and Ushr Commiitte Kashmore for a term of three years vide notification dated 11-1-2008 and he was discharging his such duties dedicatedly, honestly and efficiently and there was no complaint regarding his competency, efficiency or integrity but since after formation of new government, the political workers of the ruling party started pressurizing him to distribute the Zakat funds to their recommendees according to wish and since the petitioner continued to distribute the funds in accordance with the ratio authorized under the law to the deserving persons therefore, all of a sudden, without any reason or offering any opportunity of hearing and in violation of section 16(6) of the Ordinance 1980, the Secretary of Government of Sindh with the approval of Chairman, Provincial Zakat Council cancelled the nomination of the petitioner and instead nominated respondent No,3, Syed Bashir Ahmed Shah vide notification dated 26-8-2008. Petitioner further stated that his nomination was a tenure appointment and the same was protected by section 16(6) of the Ordinance 1980 as such this tenure could not be reduced, or curtailed by any authority except the one designated by the Ordinance itself in accordance with the procedure laid down by the Ordinance. He also submitted that his nomination was made by the competent authority i.e. Provincial Zakat Council through its resolution whereas the procedure to cancel such nomination is provided under section 21(3) of the said Ordinance which requires initiation of the process of cancellation of nomination for which the Chairman, District Committee must be adjudged in the opinion of the Provincial Zakat Council suffering from any of the disqualifications mentioned in subsection (3)(a) to (f) of section 21 and such opinion is to be formed on convincing evidence after providing opportunity of hearing to the concerned Chairman and when such opinion is formulated the same will be placed before the Council which by resolution would pass the order of cancellation of the nomination. He contended that neither any allegation contained in subsection (3)(a) to (f) of section 21 is alleged against the petitioner nor he is ever adjudged in the opinion of the Provincial Zakat Council suffering from any of the disqualifications and as such the impugned orders/notifications are coram non judice, void and without jurisdiction. He also contended that the appointment of the respondent No,3 is consequential and depending upon the order of cancellation of the nomination of petitioner therefore its superstructure will fall on the ground when the original order is held to be void ab initio and even otherwise, the appointment of respondent No,3 is suffering from some legal defects inasmuch as his appointment is not made by the competent authority through its resolution. The petitioner also claims that the impugned orders/notifications have been made by the incompetent authority in violation of the Ordinance as well as in violation of the principles of natural justice which are to be read as part and parcel Of every statute hence these orders/notifications are liable to be struck down.
3. On the other hand, the respondent No,3 Syed Bashir Ahmed Shah Jilani has submitted in his counter-affidavit that the questions raised ' in the petition cannot be adjudicated upon by this Court as the same questions require enquiry which cannot be undertaken under the extraordinary jurisdiction of this Court. He stated further that the petitioner was not qualified to be the Chairman of District Zakat and Ushr Committee, Kashmore, in view of the inherent disqualification attached under the proviso to subsection (5) of section 16 of the Ordinance, 1980 which requires that the Chairman should be a person who is ordinarily residing in the District while the petitioner is not resident of District Kashmore as he is resident of District Jacobabad therefore the very nomination of the petitioner was illegal being based on misrepresentation and fraud. He further stated that the petitioner was nominated during the tenure of previous government which preferred to select their own men without taking into account the prerequisites for such nominations therefore the present government after taking into account of the overall aspects of the matter took a policy decision by which majority of the nominations of the previous setup of the government were withdrawn and such policy decision cannot be called in question by the petitioner. He also contended that the petitioner's position is simplicitor as that of a nomination which does not confer any right to the petitioner to claim prior notice nor can he claim any protection under section 16(6) of the Ordinance as it, is the prerogative of the authority to curtail and reduce nominations and therefore the petitioner can not claim as a matter of right to continue as Chairman of the Committee. He also contended that in a meeting of the Provincial Zakat Council held on 23-10-2004 the Chief Administrator of Zakat was empowered to exercise all powers of the Council under section 21 of the Ordinance subject to prior approval of the. Chairman, Provincial Zakat Council. He also contended that there was no need of providing any personal hearing to the petitioner being a nominee hence no right was conferred upon him to claim and continue as Chairman of the Committee. He further submitted that since he fulfils the requirement of law and he has nothing to do with the politics as alleged against him which even otherwise is a question of enquiry and cannot be adjudicated upon before this Court. It is also stated that the petition of the petitioner is hit by section 21(7) of the Zakat and Ushr Ordinance, 1980 as the adequate and efficacious remedy of review before the Council was provided but the same was not exhausted by the petitioner therefore, his petition is not maintainable and section 28 of the said Ordinance also bars the jurisdiction of the Court therefore the petition is liable to be dismissed, specially when the decision of the Chairman of the Provincial Zakat Council was also approved by the Provincial Zakat Council in its 39th meeting held on 9-8-2008 and thus the petitioner has no right to claim any relief from this Court.
4. We have heard Mr. M.M. Aqil Awan learned counsel for petitioner and Mr. Miran Muhammad Shah learned Addl. A.-G. For respondents Nos.1 and 2 and also gone through the written arguments submitted by Mr. Muhammad Nawaz Shaikh learned counsel for contesting respondent No,3. Their contentions are almost same which are covered by the grounds already reproduced above in detail. In the light of their submissions we have also perused the relevant record which reveals that it is an admitted position that the petitioner Haji Ghulam Rasool, in 38th meeting of the Provincial Zakat Council held on 24.11-2007, was nominated as Chairman, District Zakat and Ushr Committee, Kashmore, for a period of 3 years vide notification dated 11-1-2008 issued by Secretary to Government of Sindh, Auqaf, Religious/ Minorities Affairs and Zakat/Ushr Department, but the impugned notification dated 26-8-2008 shows that it was issued by the said Secretary with the approval of the Chairman, Provincial Zakat Council whereby the nomination of the petitioner Haji Ghulam Rasool as Chairman, District Zakat and Ushr Committee, Kashmore at Kandhkot was recalled/withdrawn under subsection (3)(e) of section 21 of the Ordinance. By another notification of the same date i.e. 26-8-2008 the respondent No,3 Syed Bashir Ahmed Shah was nominated by the Chairman. Provincial Zakat Council, under section 16(4)(5) of the Zakat and Ushr, Ordinance, 1980 as Chairman, District Zakat and Ushr Committee, Kashmore at Kandhkot for unexpired term of his predecessor as provided under section 16(10) of the said Ordinance. The .Relevant provisions of section 16 of Zakat and Ushr Ordinance, 1980 provide that in each District, a District Zakat and Ushr Committee shall be constituted by the Provincial Council. Subsection (4) provides that the Chairman of such District Committee shall be nominated by the Provincial Council provided that he shall be a adult. Muslim who ordinarily resides in the same District and he shall be the person who has good moral character and is not commonly known as a person who violates the Islamic Injunctions and is of financial integrity and does not engage in political activities. As per subsection
(5) the District Committee so constituted shall be duly notified by the Provincial Council while subsection (6) provides that the Chairman of District Committee, shall hold office for a period of 3 years and shall be eligible for reappointment.
5. Since the nomination of the petitioner Haji Ghulam Rasool was duly made by the Provincial Zakat Council in exercise of its powers conferred under section 16(4)(5) of the said Ordinance, as Chairman, District Zakat and Ushr Committee, for a term of 3 years therefore such notification dated 11-1-2008 is not in dispute. However, the notification dated 26-8-2008 whereby the respondent No,3. Syed Bashir Ahmed Shah was, nominated by the Chairman, Provincial Zakat Council as Chairman, District Zakat-and Ushr Committee, Kashmore at Kandhkot in place of the petitioner Haji Ghulam Rasool for unexpired term of the said period, is in question as this nomination vide notification dated 26-8-2008 of the respondent No,3 was not made by the Provincial Zakat Council therefore, it is in clear violation of the provisions of section 16(4)(5) of the Zakat and Ushr Ordinance, 1980 as the Chairman, Provincial Zakat Council is nowhere empowered under the said Ordinance to nominate any person as Chairman, District Zakat and Ushr Committee. Whereas the nomination of petitioner Haji Ghulam Rasool as Chairman, District Zakat and Ushr Committee, Kashmore was recalled/withdrawn vide another notification dated 26-8- 2008 issued by the Secretary to Government of Sindh, with the approval of the Chairman, Provincial Zakat Council under section 21(3)(e) of the Ordinance but a bare reading of seCtion 21(3)(e) provides that if the Provincial Council is of the opinion that the Chairman of Committee constituted under the said Ordinance has been guilty of abuse of powers or of misconduct in the discharge of his duties as Chairman, or being responsible for any loss, misapplication, misappropriation or misuse of any money or property of the Committee, the Provincial Council may by resolution, remove such Chairman of District Committee from the office. Accordingly, it was only the Provincial Council which could arrive at the opinion that the petitioner has been guilty of the alleged misconduct etc, and it was after the resolution of the Provincial Council the petitioner could be removed from the office as Chairman of the District Committee. But, the said A notification dated 26-8-2008 was issued by the Secretary with approval of the Chairman, Provincial Zakat Council, unauthorisedly exercising the powers of the Provincial Zakat Council; which on the very face of it is illegal, without jurisdiction and coram non judice, hence the same is of no legal effect. In this connection learned counsel for the petitioner has also rightly relied upon the case of Azad Jammu and Kashmir Government versus Javed Iqbal Khawaja and another 1996 PLC (C.S.) 155 the relevant para of which reads as under:-- "Section 7 (AJK Public Service .Commission Act, 1986) requires consultation with the Public Service Commission and not the Chairman. Chairman of the Commission and the Public Service Commission have separate entities and are not interchangeable terms. Consultation which is required by law is that of the Members including the Chairman, and not with one of them.
Therefore, even if we assume that the Chairman had been consulted in an open meeting it is of no legal significance."
6. Similar is the case of Moulvi Saifullah (petitioner in C.P. No,D-1615 of 2008) whose advocate Mr. Ali Gohar Soomro adopted the same arguments as advanced by Mr. M.M. Aqil, as this petitioner Moulvi Saifullah was also duly nominated under the same notification dated 11-1-2008 as Chairman, District Zakat and Ushr Committee, Thatta and he was also removed under section 21(3)(e) of the Ordinance, 1980 vide notification dated 23-7-2008 issued by the Secretary to Government of Sindh with approval of the Chairman, Provincial Zakat Council and similarly, the respondent No,4 Imtiaz Ahmed Qureshi was nominated as Chairman, District Zakat and Ushr Committee, Thatta in place of petitioner Moulvi Saifullah in the same manner as that of the case of petitioner Haji Ghulam Rasool.
However, Mr. Akbar .Punhoon learned counsel for the respondent No,4 has referred to the minutes of 39th meeting of Provincial Zakat Council held on 9-8-2008 wherein the Council granted post- facto approval for the replacement/removal of the petitioner Moulvi Saifullah and some others but since the removal of this petitioner was not made by the Provincial Council as required under section 21 and no such resolution was passed by it, therefore, the very removal itself was illegal and coram non judice, and the same could not be made valid and legal by ex-post facto approval. This also gets support from the case of Muhammad Ilyas Khokhar and afters versus Federation of Pakistan and others 2007 PLC (C.S.) 643 wherein it was held by the honourable Supreme Court that ".... In our considered opinion the ex-post facto approval of the Establishmen Division would not make the circular valid and legal for the reasons that the circular itself is in conflict with the provisions of section 3(ii) read with section 9(b) of the Civil Servants Act, 1973.
7. Mr. Miran Muhammad Shah, Addl. A.-G. Has also contended that since the Provincial Council in terms of section 21(6) of the Ordinance has delegated its powers, for the matters falling under section 21(3) to the Chief Administrator who therefore, with the approval of Chairman; Provincial Zakat Council, has rightly taken the action against the petitioners in accordance with law. But, in this connection, the Chief Administrator does not appear from the notifications in question, to have exercised any such powers and on the contrary, it is the Chairman who is shown to have exercised the powers of Provincial Council as already discussed above.
8. Learned counsel for the respondents categorically contended that since the alternate, adequate and efficacious remedy of review was provided under the Ordinance itself therefore, the petitioners could not invoke the inherent jurisdiction under Article 199 of the Constitution of Pakistan and as such their Constitution Petitions are not maintainable. . Regarding this the relevant subsection (7) of section 21 of the Ordinance, 1980 provides that the Chairman of a Committee removed from office under subsection (3), may apply to the Provincial Council for a Review of its decision and the decision of the Provincial Council in such review, shall be final and shall not be called in question before any Court or other authority. But, in the instant case, there was since no decision of the Provincial Council and the decision of its Chairman alone could not be termed to be a decision of the Provincial Council, therefore, no review could be filed before the Provincial Council in absence of its decision. . . Apart from this, the learned counsel for the petitioner has relied upon the case reported as PLD 1979 Quetta 45, which provides that in the light of the rule laid down by the honourable Supreme Court in the cases reported as PLD 1961 SC 119, PLD 1972 SC 279 and PLD 1975 SC 450, it is an admitted position of law that the High Court would not refuse to grant relief to an aggrieved party only on the ground that alternate remedy was available to him, as if an impugned order appeared to be ab initio void, due to complete lack of jurisdiction or substantial defect in jurisdiction, High Court would not refuse to strike it down in exercise of its powers under Article 199 of the Constitution. .
9. Accordingly, the facts and circumstances of the cases reported in the remaining authorities as cited by learned counsel as well as learned Addl. A.-G. In their respective synopsis/written arguments, are however distinguishable to the facts and circumstances of this case.
10. . For the reasons as discussed above, the impugned orders/ notifications of recalling/withdrawing the nomination's of the petitioners Haji Ghulam Rasool and Moulvi Saifullah and nominating the respondents Syed Bashir Ahmed Shah and Imtiaz Ahmed Qureshi, as Chairman, District Zakat and Ushr Committee, Kashmore and Thatta respectively, are declared to be illegal, without lawful authority, coram non judice and of no legal effect. The above Petitions are therefore allowed accordingly. .