MUHAMMAD NAEEM ANWAR, J. Tariq Mehmood Aryani, the petitioner, through this writ petition has questioned the legality of Notification No. SO.ZCC/CONST:DZC/2019/3542-56 dated 11.03.2020, whereby, he was removed from the office of Chairman, District Zakat Committee, Mardan and vide Notification No. SO.ZCC/CONST:DZC/2019/408-24 dated 17.04.2020, respondent No.4 was appointed as Chairman District Zakat Committee, Mardan for the remaining period i.e. from 23.12.2019 to 22.12.2022.
02. Learned counsel for the petitioner contended that petitioner was appointed / nominated as Chairman, District Zakat Committee, Mardan, in accordance with law vide order dated 23.12.2019, as such, the petitioner was performing his duties but he was shocked when through impugned notification, he was removed from his position / post without providing him an opportunity of being heard and without any show cause notice. He termed the impugned notifications as illegal, unwarranted, without any justification, unlawful and coram-non-judice. He added that through impugned notification, the petitioner was subjected to political victimization and rivalry of elected member of Provincial Assembly and respondents. Contrarily, Mr. Umar Farooq, learned Additional Advocate General contended that the Chairman of District Zakat & Ushr Committee is neither appointed nor removed by the respondents No.1 & 3. He added that Provincial Ushr & Zakat Committee is the apex body to constitute District Zakat Committee, therefore, the Provincial Zakat & Ushr Committee has removed the petitioner from the Chairmanship of District Zakat & Ushr Committee in accordance with law when the petitioner remained unable to perform his function as Chairman and this was the reason that Zakat funds in District Mardan has not been disbursed amongst the deserved persons. Next, that the Chairman has not even constituted the local Zakat Committee which could have worked for distribution of Zakat in Mardan District.
3. Arguments heard and record perused.
4. Before discussing the merit of the case, it is pertinent to mention that presently the matters relating to assessment, collection and disbursement of Zakat and Ushr are dealt with in accordance with Khyber Pakhtunkhwa Zakat & Ushr Act, 2011, and in each district, a Zakat & Ushr Committee, is constituted under section 14 of the Act ibid, which reads as: "14. District Zakat and Ushr Committee: -
(1) In each district, a District Zakat and Ushr Committee, shall be constituted by Zakat and Ushr Council.
(2) The District Committee shall, perform the following functions:
(a) oversee, generally , the functioning of administrative organization of Zakat and, more particularly , the assessment of Ushr and atiyyat and the disbursement and utilization of the moneys in the District Zakat Fund and the Local Zakat Fund;
(b) for the purposes mentioned in clause (a), make plans for the district, in such form and manner as may be prescribed;
(c) prepare and maintain accounts of the District Zakat Fund in such form and manner as may be prescribed;
(d) compile accounts of the Local Zakat Fund, for the district, in such form and manner as may be prescribed;
(e) arrange, in the prescribed manner , audit of the Local Zakat Fund in the district; and
(f) any other function to be assigned by Government or Zakat and Ushr Council.
(3) The District Committee shall consist of-
(a) a Chairman, who shall be non-of ficial,[6][the District Collector or an officer not below the rank of BPS-17, nominated by him], District Social Welfare Officer and two women from the district who shall not be less than forty-five years of age, and one non-official member from each tehsil or sub-division in the district: Provided that where the number of tehsils or sub-divisions in a district is less than five, the number of members other than the Chairman and the women members shall be raised to seven [any co-opted member from well established and recognized donor organization];
(b) the District Zakat Officer, who shall also be the Secretary of the Committee.
(4) The Chairman shall be nominated by Zakat and Ushr Council and members shall be nominated by Zakat and Ushr Council in consultation with Chairman.
Provided that the Chairman and members of the District Committee shall be the persons who possess Secondary School Certificate and are of good moral character and are not commonly known as persons who violate Islamic Injunctions and are of financial integrity and are not indulged in any anti-social activities.
(5) The Chairman and members, not being an ex-of ficio member , shall hold office for a term of three years and shall be eligible for re-appointment for another term of three years only .
Provided that in the event of delay in the constitution of the new District Committee under sub section (3), Zakat and Ushr Council may ask a District Committee to continue to function for a period not exceeding six months after the expiry of the term of its of fice.
(6) The Chairman or a member , not being an ex-of ficio member , may, by writing under his hand addressed to the Chief Administrator , resign his of fice
(7) Subject to sub-section (6), the Chairman or, as the case may be, a member shall continue to hold office until his resignation is accepted by Zakat and Ushr Council.
(8) Any vacancy in the office of Chairman or member , other than an ex-of ficio member , shall be filled in accordance with sub-section (4) of a person qualified to hold the of fice.
(9) The Chairman or member appointed under sub section (8) shall hold office for the unexpired term of his predecessor .
(10) The District Committee shall hold meetings at least once in every three months"
05. A look at sub-section 4 of section 14 makes it abundantly clear that Chairman of District Committee and members thereof are nominated by Zakat & Ushr Council. Likewise, local Zakat & Ushr Committee is constituted in accordance with section 15 of the Act ibid, which reads as under: "15. Local Zakat and Ushr Committee: -
(1) A Local Zakat and Ushr Committee shall be constituted for each-
(a) revenue estate in settled rural area;
(b) deh or village in non-settled rural area; and
(c) ward in urban area: Provided that, if in the opinion of the Zakat and Ushr Council, the population of a revenue estate, deh or village is too large, or too small, to have one local Zakat and Ushr Committee such revenue estate, deh or village may, if too large, be divided into two or more localities, or if too small, grouped with any other revenue estate, deh or village to form one locality, and where a revenue estate, deh or village is so divided or grouped after the constitution of a Local Committee that it covers a population of ten thousand persons the Zakat and Ushr Council may make such consequential orders as may be necessary for the purposes of this Act.
Explanation. - In this sub-section, -
(a) "urban area" means a notified as an urban area under any law or as the case may be, notified by Government;
(b) "rural area" means area other than urban area;
(c) "settled rural area" means rural area for which, revenue settlement record exists;
(d) "non-settled rural area" means rural area other than settled rural area; and
(e) "ward" means a distinct and compact locality the population of which does not exceed ten thousand persons approximately .
(2) The Local Committee shall, subject to such guidelines as may be given by Zakat and Ushr Council and the District Committee, perform the following functions:
(a) determine istehqaq separately for-
(i) subsistence allowance;
(ii) rehabilitation, either directly or indire ctly through deeni madaris, educational, vocational and social welfare institutions;
(iii) treatment through public hospitals, charitable institutions and other institutions providing health care; and
(iv) any other purpose as may be permitted by Shariah;
(b) collect voluntarily Zakat, Ushr and attiyyat and deposit the moneys in the District Zakat Fund;
(c) prepare and maintain accounts of the Local Zakat Fund in such form and manner as may be prescribed; and
(d) tender to the District Committee advice on any matter connected with collection, disbursement and utilization of Zakat, Ushr and attiyyat.
(3) The Local Committee shall consist of nine members, of whom two shall be Muslim women who are not less than forty-five years of age selected by the residents of the locality in the manner specified in sub section (4).
(4) The District Committee shall constitute a team of three or more persons including at least one gazetted officer, one aalim-e-deen and one member of the District Committee to organize a public gathering of the adult Muslims, teachers and ulema residents of a locality and call upon them to select, in the prescribed manner , seven adult Muslims residing in that locality who possess Secondary School Certificate and are known to be pious, and have sound moral and financial integrity and are not indulged in any anti-social activities: Provided that a person who is a member of a team constituted for the selection of members of a Local Committee shall not be eligible to be member of such Local Committee or a person who is a salaried employee of Government or of a local authority otherwise than as Pesh Imam of a local mosque or a teacher of a local school, or of a corporation set up, owned or controlled by Government, shall not be eligible to be member of Local Committee: Provided further that, where in a district the number of local Committees is so large that the members of the District Committee cannot be put on all the teams constituted for the selection of members of Local Committees in the district, the District Committee. may, at its discretion, nominate any other non-official person of the district to represent it on the said teams: Provided also that the team constituted by the District Committee shall organize a separate gathering of the adult Muslim female residents of the locality and call upon them to select, in the prescribed manner, two Muslim women residing in that locality who are known to be pious and who enjoy their trust to be members of the Local Committee.
(5) The members shall elect one of their members, being a person who possesses Secondary School Certificate, to be the Chairman of the Local Committee, and if two or more persons secure an equal number of votes, the result of the election shall be determined by drawing lots.
(6) The Local Committee so constituted shall be duly notified by the District Zakat Officer concerned: Provided that where election or selection for the constitution of Local Committees cannot be held for certain reasons, the District Committee at its discretion may appoint any non-official persons as "Administrators" to perform functions of the Local Committees.
(7) Any adult Muslim resident of a locality who is aggrieved by the conduct or the result of the proceedings for the selection of the members, or the election of the Chairman, of the Local Committee concerned may prefer an appeal to District Committee: Provided that the District Committee which shall not grant any injunction or make any interim order, including a stay order, during the period an appeal is pending.
(8) The District Committee to which an appeal under sub-section (7) is preferred shall decide the appeal with in such time as may be prescribed and the decision of the District Zakat Officer shall be final and shall not be called in question before any court or other authority.
(9) The Chairman and members shall hold office for a term of three years and shall be eligible for re-election or re- selection as the case may be: Provided that the District Committee may, in consultation with Government remove a Chairman or a member from his office and nominate another person as Chairman or, as the case may be, a member for the unexpired term of his predecessor: Provided further that the Chairman shall not be eligible to hold office for more than two consecutive terms of three years each: Provided also that the District Committee may, in the event of delay in the constitution of the new Local Committee, ask a Local Committee to continue to function for a period not exceeding six months after the expiry of term of its office.
(10) The Chairman or a member may, by writing under his hand addressed to the District Committee, resign his office:
(11) Subject to sub-section (10) the Chairman or, as the case may be, a member of the Local Committee shall continue to hold office until his resignation is accepted by the District Committee.
(12) Any vacancy in the office of Chairman or member shall be filled by election or selection of a person qualified to hold the of fice, in accordance with the provisions of sub-section (4) or , as the case may be, sub-section (7).
(13) The Chairman, or the member elected or selected, under sub-section (12) shall hold office for the unexpired term of his predecessor"
Section 15 (4) (supra) provides a mechanism for selection of members of such committees, by the District Zakat Committee.
06. It is evident from the comments of respondents No.1 & 2 that on 9th of March, 2020, 5th meeting of the Khyber Pakhtunkhwa Zakat & Ushr Council was held wherein the council while considering the fact that since 23.12.2019, no effort was made by the petitioner being Chairman of District Zakat & Ushr Comm ittee for the District Mardan, by which the process of distribution / disbursement of Zakat in the said District was affected and such lethargic attitude of petitioner tantamount of becoming inefficient, incompetent, incapable, unfit and negligent, thus, they by exercising the powers, under section 19 of the Act ibid have assented the removal of the petitioner from the office of Chairmanship.
The powers of the council were given in Section 19 which reads as: "19. Power of supersession and removal: -
(1) If Zakat and Ushr Council in the case of a District Committee, and the District Committee in the case of a Local Committee is of the opinion that a Committee constituted under the Act-
(a) is unable to discharge or persistently fails in discharging its duties; or
(b) is unable to administer its affairs; or
(c) acts in a manner contrary to public interest; or
(d) otherwise exceeds or abuses its powers; or
(e) has a majority of members who are not pious Muslims and are indulged in anti-social activities.
Government on the recommendation of Zakat and Ushr Council or as the case may be, the District Committee may, by a notification, declare the District Committee or as the case may be, Local Committee to be superseded for such period not exceeding one year as may be specified in the notification: Provided that the period of supersession may, if the Zakat and Ushr Council or as the case may be the District Committee considers it necessary to do so, be extended, beyond a period of one year .
(2) When a declaration is made under sub-section (1) in respect of a District Committee or a Local Committee; (a) the persons holding office as Chairman and members of the District Committee or Local Committee, as the case may be, to which the resolution relates shall cease to hold office;
(b) all functions of the District Committee shall, during the period of supersession, be performed by an Administrator appointed by the Zakat and Ushr Council and in the case of Local Committee such functions shall be performed by the Administrator appointed by the District Committee;
(c) before the expiry of the period of supersession, elections shall be held and selection or nomination made in accordance with the provisions of this Act to reconstitute the District Committee or Local Committee, as the case may be.
(3) If Zakat and Ushr Council, in the case of a District Committee, and the District Committee, in the case of a Local Committee, is of the opinion that the Chairman or a member of District Committee, as the case may be, the Local Committee constituted under this Act-
(a) was at the time of his selection, election or appointment, -
(i) not a pious Muslim;
(ii) not an adult;
(iii) not a resident of the area within the jurisdiction of the Committee;
(iv) an undischarged insolvent; or
(v) not of sound mind; or
(vi) indulged in any anti-social activities; or
(b) has been, during the period of three years preceding the date of his selection, election or appointment:
(i) ordered to execute a bond under sectio n 108, 109 or 110 of the Code of Criminal Procedure, 1898 (Act No. V of 1898); or
(ii) convicted for an of fence involving moral turpitude; or
(iii) declared goonda under the law relating to the control of goondas;
(c) has after his selection, election or appointment, incurred any of the disqualifications referred to in sub-clause (i) or (ii) or (iii) of clause (b);
(d) has, without reasonable excuse, absented himself from three consecutive meetings of the Committee;
(e) has been guilty of abuse of power or of misconduct in the discharge of his duties as Chairman or member , or been responsible for any loss or misapplication, misappropriation or misuse of any money or property of the Committee; or
(f) has become physically disabled or unable on any count from performing functions as Chairman or member; Zakat and Ushr Council in the case of District Committee, and the District Committee, in the case of Local Committee may by a resolution, remove such Chairman or member from of fice.
(4) If, after such inquiry as may be considered necessary , Zakat and Ushr Council, in the case of a District Committee, or the District Committee in the case of a Local Committee, is of the opinion that the Chairman or a member of District or as the case may be, Local Committee or an employee assigned to work with a District Committee or as the case may be, the Local Committee or an institution receiving Zakat Funds under this Act, was guilty of misconduct in the discharge of his duties, or is responsible for the loss, misapplication or misuse of Zakat Funds, Zakat and Ushr Council or as the case may be, the District Committee shall initiate criminal proceeding against such Chairman, member , person or institution.
Explanation .- For the purpose of clause (e) of sub section (3) and subsection 4, the expression "misconduct" means bribery , corruption, jobbery , favoritism, nepotism, willful mal-administration or willful diversion of funds and shall include and attempt or abetment of such misconduct.
(5) When the Chairman or a member of District or Local Committee, as the case may be, Committee is removed from, or otherwise ceases to hold office, the vacancy in the office of such Chairman or member shall be filled by Zakat and Ushr Council or District Committee by the election, selection or appointment, as the case may be, in accordance with the provisions of this Act, of a person qualified to hold the of fice.
(6) The Chairman or member elected, selected or appointed under sub-section (5) shall hold office for the unexpired term of his predecessor .
(7) Zakat and Ushr Council may delegate to the Chief Administrator all or any of its powers and functions under the preceding provisions of this section in respect of a District Committee.
(8) The Chairman or a member of a District Committee or as the case may be, the Local Committee superseded under subsection (1) or a Chairman or member removed from office under sub-section (3) may, within such time and in such form and manner as may be prescribed apply to Zakat and Ushr Council for a review of its decision and the decision of Zakat and Ushr Council in such review given after, after giving to the applicant an opportunity of being heard, shall be final and shall not be called in question before any court or other authority"
7. Thus, the Khyber Pakhtunkhwa Zakat & Ushr Council while exercising the powers under section 19 (3) (e) & (f) has passed the resolution for removal of the petitioner from his position as that of Chairman.
8. Again, the petitioner has neither arrayed the council which was constituted under section 12 of the Act nor any act of council was challenged through this petition. Apart from the above, sub section 18 of section 19 has provided a remedy for review of the decision of council that when any person feels aggrieved from the decision of the council he may file application for review of the order , but in the instant case, no such review was filed by the petitioner .
When a remedy by way of review was available to the petitioner , he could better seek the remedy on the grounds mentioned in this petition but he has not opted it, though this Court has got power in exceptional circumstances to undo an act of the public functionaries when it is against the law, void ab initio or coram-non-judice but the petitioner has not been able to prove any illegality or exercise of function not so vested in the council, especially when council itself is not party before the Court. The apex Court in case titled "Indus Trading and Constructing Company vs. Collector Customs (Preventive) Karachi & others" (2016 SCMR 842) has held that: "Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi judicial or judicial officers who with their specific knowledge, expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been over- burdened with a very large number of such cases. This in turn results in delays in the resolution of the dispute as a large number of cases get decided after several years. These cases ought to be taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provisions of Article 199(1) of the Constitution which confers jurisdiction on the High Court only and only when there is no adequate remedy is available under any law"
Reliance can also be placed on case titled "Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813),"Muhammad Abbasi v. SHO Barakahu and 7 others" (PLD 2010 SC 969) and "Secretary to the Government of Punjab v. Ghulam Nabi" (PLD 2001 SC 415).
09. In view of the aforesaid discussion, this petition being without substance is hereby dismissed in limine .