1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal through leave of the Court has arisen out of a controversy regarding constituent members of the Zakat Committee established under Zakat and Ushr Ordinance, 1980. Leave to appeal was granted as follows: " Leave to appeal has been sought; against the dismissal by the High Court, of a Constitutional (Writ) petition; whereby it has been held that the petitioner being a Teacher in a Government Middle School, was disqualified from being elected as Chairman of a Local Zakat Committee.
2. The provision of law which has been interpreted in the impugned judgment and the interpretation thereof has gone against the petitioner reads as follows:-- "18. Local Zakat and Ushr Committee.--(1) A local Zakat and Ushr Committee shall be constituted for--
(a) each revenue estate in settled rural area;
(b) each Deh or village in non-settled rural area; and
(c) each ward in urban area: Provided that, if, in the opinion of the Provincial Council, the population of a revenue estate, Deh or village is too large, or too small, to have one Local Zakat and User Committee, such revenue estate, deh or village may, if too large, be divided into two or more localities, or, if too small, grouped with another 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, the Provincial Council may make such consequential orders as may be necessary for the purpose of this Ordinance].
3. Explanation.--In this subsection:--1
(a) "Urban area" means area within the local limits of a Municipal Corporation, Muncipal Committee, Cantonment Board or Town Committee;
(b) 'Rural area' means area other than urban a a;
(c) 'Settled rural area' means rural area for hich 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 five thousand approximately.
(2) The local Committee shall, subject to such guidelines as may be given by the Central Council, the Provincial Council, the District Committee or the Tehsil, Taluqa or Sub-Divisional Committee--
(a) determine Ushr demand compulsorily realizable under this Ordinance and collect Zakat Ushr and Atiyyat, and disburse and utilise the moneys in the Local Zakat Fund;
(b) for the purpose mentioned in clause (a), make plans for the locality;
(c) prepare and maintain accounts of the Local Zakat Fund in such form and manner as may be prescribed ; and
(d) tender to the Tehsil, Taluqa or Sub-Divisional Committee, as the case may be, advice on any matter connected with the collection, disbursement or utilization of Zakat or Ushr.
(3) The Local Committee shall consist of "nine members of whom two shall be Muslim women who are not less than forty-five years" selected by the residents of the locality in the manner specified in subsection.
(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 Muslim residents of a locality and to call upon them to select, in the prescribed manner, seven adult Muslims resident in that . Locality who [are known to be pious and are not engaged in political activity and who] enjoy their trust to be the members of the Local Committee: 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 a member of such Local Committee and [except in the case of such Local Committees in the Islamabad Capital Territory as may be notified by the Administrator-General] a person who is a salaried employee of Government or a local authority [otherwise than as a 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 a member of a 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 team].
4. [Provided further that the team constituted by the District Committee shall organise 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"; and not engaged in political activity].
5. It is not denied that there is an exemption from disqualification for a "Teacher of a Local School".
6. The precise question involved in this case is: whether, school meant here is with reference to the "locality" or with reference to the "ownership or control" of the school by "a local committee".
7. According to one side "local" means, in the locality as is the case with the Pesh Imam of "local" mosque. The other point of view is that the expression "local school" has been used with reference to the next phrase; namely, "or of corporation set up, owned or controlled by Government.
8. The legal question involved in this case is one of first impression. Leave to appeal is, accordingly, granted".2 3 4 5 6 7 8 The learned counsel for the appellant is absent. However, the learned Advocate-General Balochistan has rendered assistance and while doing so remained highly fair to the cause and claim of the appellant. In addition to the provisions of section 18 he read section 6 also which is as follows:- "[6. Mode of assessm ent and collection of Ushr.--(1) The Provincial Revenue Department shall assess and collect Ushr in respect of a landowner, guarantee, lessee, lease-holder or land-holder in the prescribed manner, and maintain the record containing such information for a crop season as may be required for the purposes of this Ordinance.
(2) In the case of lease in force immediately before the commencement of this Ordinance, or, after the commencement of the Finance Act, 1990, the liability of the lessor and lessee to pay Ushr shall be equitably apportioned between them by the Tehsildar or, as the case may be, Mukhtiarkar.
(3) An assesee aggrieved by the assessment under subsection (1), or as the case may be, a lessor or lessee aggrieved by the apportionment under subsection (2), may, within thirty days of the Provincial Revenue Department announcing the assessment, or, as the case may be, apportionment, apply, in the prescribed form and manner to the Assistant Commissioner or Sub- Divisional Magistrate for a revision of the assessment. Or appointment: Provided that no such application shall be admitted unless the applicant has deposited into the Local Zakat Fund not less than fifty per cent. Of his liability as assessed or apportioned by the Provincial Revenue Department.
(4) The Assistant Commissioner or Sub-Divisional Magistrate may, at any time, either of his own motion or on the application of an adult Muslim residing within his jurisdiction, make an order enhancing the liability assessed under subsection (1) or apportioned under subsection (2): Provided that no such order shall be made unless the person affected has been given an opportunity of showing cause against it and of being heard.
(5) The Assistant Commissioner or Sub-Divisional Magistrate to whom an application is made under subsection (3) or subsection (4), or who takes up a matter under subsection (4) of his own motion, shall give his decision within a period not exceeding one month counted from the date on which he receives the application or, as the case may be, so takes up the matter; and such decision shall be final and shall not be questioned before any Court or other authority.
(6) The demand as determined under subsection (1), or, as the case may be, under subsection (4) or subsection (5), shall be paid by the assessee and collected by the Provincial Revenue Department in such manner as may be prescribed and deposited into the Local Zakat Fund.
(7) Where the recovery of Ushr compulsorily realizable under this Ordinance falls into arrears, the Tehsildar or, as the case may be, Mukhtiarkar shall proceed to recover the amount so specified as if it were an arrear of land revenue].
9. He also brought to our notice the definition of Local Committee and Locality as contained in section 2(xiii) and (xiv). They read as follows:--
2. Definitions.---In this Ordinance, unless there is anything repugnant in the subject or context,- (i)...........................................
10. (ii)..........................
11. (iii).........................
12. (iv).........................
13. (v)..........................
14. (vi).........................
15. (vii)........................
16. (viii).......................
17. (ix).........................
18. (x)..........................9 (xi).........................
19. (xii)........................
20. (xiii)'Local Committee' means a committee constituted under section 18;
(xiv) 'Locality' means the area within the jurisdiction of a Local Committee."
21. After considerable discussion and minute analysis of the governing provision of law which determines the qualifications and exceptions; namely, subsection (4) of section 18, the learned Advocate-General spelt out the following positive/essential conditions for being a member of the Local Zakat Committee:
(i) Should be an adult,
(ii) Should be a Muslim,
(iii) Should be a resident in the locality,
(iv) Should be pious and enjoy the trust of the selection team visualised in subsection (4) and that he should be a non-politician. In other words should not be engaged in political activity.
22. These conditions are contained in the purview of subsection (4) of section 18. There are other conditions also contained in the relevant proviso thereto. For example, a member of the selection team cannot be a member of the Local Zakat Committee; a salaried employee of the Government or a local authority, set up under or controlled by the Government or a Corporation is also debarred except for the specified persons. Thus there is no serious difficulty that may be encountered in spelling out the conditions stated above.
23. Learned counsel for the respondent also made it easy by conceding that there is no disqualification for the teacher of a local school or a Pesh Imam of a local mosque to be selected as a member of the Local Zakat Committee but he insisted that such Imam or teacher must be permanent resident of the locality as defined in section 2 (xiv) so as to justify and enjoy the position and trust of the local population.
24. It is correct that the qualification of residence is a very important condition; but had it been the intention of the legislature to make it permanent residence the same could have been provided more specifically. Moreover, when the law was enacted it was well known that the teachers and Pesh Imams occupy such positions in which transfers from one locality to another in the same District are not unusual. Therefore, although residence of some type is necessary but it need not be permanent.
25. Learned counsel then, to be lair to the appellant, conceded that there is a possible interpretation of the expression "salaried employee of the Government or local authority otherwise than as a teacher of a local school". It could be read so as to mean that even if a person is salaried employee of the Government, but is the teacher of a local school, he would fall within the exemption to the bar regarding salaried employees.. Though this interpretation if accepted will lead to the acceptance of the appeal and the learned Advocate-General left it to the Court to adopt this construction of the relevant part of the proviso to subsection (4). Or the other one; namely, that the salaried employees of the Government, local authority and a Corporation, set up under or controlled by the Government, are debarred except the Pesh Imam or the teacher of a local mosque or a local school respectively, provided they are the employees of a "local authority," and not of Government, both to be read disjunctively on this question.
26. After a fair amount of analysis and examination of the purposes of the law, we are inclined to adopt the second interpretation. It also affirms the intention as well as the language of the law.
27. Salaried employees whether of Government, local authority or corporation which is under or controlled by the Government, have been kept out of such representative organizations as is a Local Zakat Council. But an exception has been made regarding the Imains and teachers of local mosques and schools on account of their special qualification and position, vis-a-vis, the subject of Zakat - particularly its calculation, collection and distribution. Accordingly the appellant being the teacher of a local school would undoubtedly be qualified to become a member; but for another element in his employment. We have gone through the record in that connection and have also perused the certificate issued by the District Education Officer which shows that although he is the teacher of a local school but he is not the employee of a local authority. He is a salaried employee of the Government. As discussed above such a teacher of local school who is salaried employee of Government cannot be a member of the Local Zakat Committee.
28. In the light of the foregoing discussion this appeal fails and is dismissed. There shall be no order as to costs. Added by Ordinance LII of 1980. Inserted by Act VII of 1990. Added by Ordinance VII of 1983. Inserted by Ordinance VII of 1983. Added by Ordinance LII of 1980. Inserted by Ordinance VII of 1983. Added by Ordinance VII of 1983. Added by Act No,VII of 1990 dated 30-6-1990. Substituted by Act VII of 1990.