2004 PLP 834 (CLC)

3. On the other hand, learned counsel appearing on behalf of contesting respondents Nos. 3 and 4 has vehemently opposed the arguments of learned counsel for the petitioner contending that Imam Masjid falls in the category of Mueen of the village as land measuring 4 acres is allotted to him as provided in paragraphs Nos.322 and 323 of the Colony Manual.

4. I have heard the learned counsel for the parties at length and perused the record.

5. The question that boils down for determination in this case is whether "Imam Masjid" is a village servant and falls within the category of Mueen. Paragraph 322 of colony Manual provides as under:‑‑‑

322. Kamins Squares.‑‑‑ Upon the attraction of the adequate number of village servants the success of a colony depends more than is superficially apparent. In the absence of such assistants Zamindars find their agricultural operations suspended for lengthy period whenever implements need repair or replacement. Kamins or menials will often refuse to accompany settlers to a jungle tract unless there is some assurance that their condition will be ameliorated by emigration from the home village. The experience of the first settlers in the Lower Chenab Colony showed that the emigrant menials expected some participation in the benefits derived from the grants of land to their village masters. The necessity of making provision for village servants, whether religious or secular, was early recognized by Government, and, inasmuch as no satisfactory arrangements by the grantees were possible, the Colonization Officer was permitted to grant on a annual lease to the headmen of each village land up to a maximum limit of two squares, with the understanding that the lease would be allowed to run on so long as they sublet the land to village servants, and the relations between those servants and the Zamindars continued to be satisfactory. Paragraph No. 323 further emerges that:‑‑‑ "It was not considered desirable that Government should attempt in any way to regulate these relations; and the management of the square was left in tile hands of the Lambardars. This system is more acceptable to the colonists than one whereby the menials would receive independent grants. In actual practice, the tenancy of the square is held at will by the Kamins under the supervision of the village headmen, who make the required assignments, subject to any executive orders which may have been found advisable in order to ensure fulfillment of the object in view. Allotments are made in Killas to recognized menial servants such as Chaukidar, Chuhra, Lohar, Tarkhan etc. Who pay the assessments due. Acreage rate is, in the Lower Chenab Colony, realized from the Lambardars, who make their own arrangements for its recovery. In the Lower Jhelum Colony the rule is that a Kamin who cultivates without being dispossessed for the first two harvests pays the rate in the area which he is cultivating; if evicted after the first harvest, half the rate; if evicted before cultivating, nothing. Subject to the maximum of two squares which has really been required, the scale of allotment in the Lower Chenab Colony has been at the rate of one square for the first 36 squares allotted to grantees with proportionate increases for additional allotments. In the Lower Jhelum Colony the usual allotment has been Killas apportioned precisely among specified Kamins. In the Lower Bari Dowab Colony ordinarily one rectangle (25 acres) is reserved for Kamins in each village, more being added if the necessity arises. Allotment is made to approved Kamins of two acres each on temporary cultivation. The Kamins is responsible for all charges on the land and remains in possession so long as he stays in the service of the villagers. Allotments are made by the Naib Tehsildar in consultation with the Lambardars. It is advisable to have the Kamin's land as near the village site as possible. " Para-503 of said Manual envisaged that:‑‑‑ "Section 35 of the Colony Act gives the Collector the power to levy a cess for village purposes in any way he may think fit if the majority of the tenants or owners in the estate apply for it. The proceeds of the cess are recoverable under the tenancy Act and are credited to the Village Malba fund. No village need collect a cess unless it wishes to, but if the community desires to recover rent from shopkeepers or tenants who occupy sites in the village and while benefiting by the amenities of the village, pay no share in the cost of providing them, it can only do so by an application under section

35. Such application made and verified as a bona fide request on the part of more than half the landholding community, it remains to decide the classes, who shall be liable and the rates each shall pay. In the Lower Bari Doab Colony the cess is recovered from owners and Government tenants at a rate levied per acre or per square on their agricultural land; from sub‑tenants, shopkeeper and menials at a rate per allotted site. A sample statement of a village cess is given in Appendix VIII. The rates are in all cases settled by the Community, itself. They vary from one rupee per square to an Anna per acre for landholders and from eight Annas to one rupee per site for sub‑tenants and menials. Shopkeepers generally pay from one rupee to four rupees per month according to the size of their shops. The rates for shopkeepers tend to be high in prosperous villages and low in villages which do not offer many attractions. Flour mills are usually rate at ten rupees a month, or at a concession rate of the owners agree to sell flour at a specified discount from the rate obtaining in the nearest Mandi. The indigenous Karas, or bullock‑mill is not assessed. Recognized village menials, such as the Lohar, Tarkhan, Dhobi, Kumhar, etc. are usually exempted entirely. All rates are for each harvest and are payable with the land revenue demand."

6. The purpose of reproducing the above‑referred paragraphs of Colony Manual was to establish that there are Mueens in the village who serves the people/inhabitants of the village, performing their functions in different categories like, Dhobi, Tarkhan, Chowkidar and Chuhra etc. All these persons served the villagers/people and are known village servants.

7. The word "servant" has been defined in "Chambers English Dictionary"; that one who is hired to perform service especially personal or domestic service of a menial kind, or farm labour, for another or others; one who is in the service of the State, the public, a company, or other body, and serve means to be a servant and to be in the service or to render service, to perform duties. The word "menial" would mean pertaining to a train of servants or work of a humiliating or servile nature. Servile means a domestic servant or one performing servile work.

8. The Imam Masjid of a mosque is not covered within definition of personal servants to the villagers, he is a person who is servitor of the mosque and leads the people in prayer to Almighty Allah. Reference in this respect can be made to the case of Muhammad Shafi v. Muhammad Abdul Rahim AIR 1930 Lah.

476. The Government of the Punjab Colonies Department vide its letter No.12331‑71‑TV/3348‑CL, dated 8‑11‑1971 had excluded the Imam Masjid from the list of Mueens but he was given the right for allotment of four acres of land for his subsistence.

9. The Imam is a person who is equipped with sufficient religious knowledge and can recite the Holy Qur'an in a better way. Hazrat Imam Abu Hanifa stated that the Holy Prophet (p.b.u.h.) had appointed in his absence Hazrat Abu Bakkar Siddique to lead prayer in Masjid Nabvi on the ground that he was having more knowledge. Reference in this context can be made to page 37 of book.

10. There is also an `Al‑Hadith of Holy Prophet (p.b.u.h.) in book (Zad‑e‑Rah)

11. It has also been mentioned with regard, to the eligibility of an Imam in a book of " " at page 684 by " " which is as under:‑‑

12. From the above, it is manifestly clear that firstly the Imam is a respectable person of the locality having sufficient religious knowledge and a pious man. He is neither subordinate to Lamberdar of the village, nor any of the Colony/Revenue Officers. Imam of a village mosque cannot be said a Kammi or Moeen and he cannot be appointed by any of them as it is the right of the people of the area as observed in G Muhammad Shafi's case reported as AIR 1930 Lah. 476 that the right and powers of Ahl‑i‑Mohallah are well‑recognized by Mohammadan Law and their right to have a voice in the management of the affairs of the mosque is superior even to that of such benefactors of the Waqf, as do not reside in the locality and are not among the regular worshippers at that mosque.

13. There is no law and rules made by the Legislature to appoint an Imam of a Colony village mosque. The Land Revenue Act and the Colonization of Land Act, 1912, provided no provisions conferring powers upon the Revenue Officers to appoint Imam of a colony village. The District Khatib/Khatib or Imam of a mosque controlled by Auqaf Department can be appointed by the competent Authority of Auqaf Department under West Pakistan Auqaf Department Khatib and Imam Services Rules, 1968.

14. Section 3 of the Colonization of Government Land Punjab Act (V of 1912) provides that "Collector" means the Collector of the District as described in the West Pakistan Land Revenue Act, 1967 and includes (1) any Officer appointed by the Board of Revenue to perform all or any of the functions and exercise all or any of the powers of the Collector under this Act and (2) any Colonization Officer or Assistant Colonization Officer appointed as such before the commencement of this Act, whether or not such officer was by notification appointed to perform all or any of the functions of a Deputy Commissioner under the Act. The powers of the Collector conferred on him under section 3 of the said Act are as under: (1) Under section 10(3) all powers regarding allotment of land. (2) Under section 20(e) to appoint a successor where heirs fail and the deceased tenant has not nominated one. (3) Under section 24(a), to impose a penalty not exceeding Rs.100 (now ten thousand). (4) Under section 24(b) all powers regarding resumption of the tenancy. (5) Under section 25 to re‑enter and assess compensation, if required. (6) Under section 26 to re‑enter and assess compensation for building sites allotted for residential purposes. (7) Under section 32 to re‑enter in case of squatters and trespassers and to resume possession of their lands. (8) Under section 33 to authorize complaints. (9) Under section 34 miscellaneous powers under subsection (i), (ii) and (iii).

14. Section 7 of West Pakistan Land Revenue Act, 1967 has defined classes of Revenue Officers which are as follows:‑‑ (a) the Board of Revenue; (b) the Commissioner; (c) the Collector; (d) the Assistant Collector of first grade; (e) the Assistant Collector of 2nd grade. Their functions and powers have also been provided in the Act. The Collector is competent and empowered to appoint a village watchman or Chowkidar but he is not empowered to appoint any other servant of the H village as discussed in the preceding paragraphs. The appointment of Imam is the right/prerogative of the people of area/village where the mosque is situated for which an Imam is to be appointed.

15. Learned counsel for the respondents when confronted to advance any case‑law, conferring powers on the Revenue/Colony Officers for appointment of Imam of mosque of Colony area, could not respond. Resultantly, the observations made by respondents Nos. 1 and 2 in their orders to the effect that Imam falls within the category of menial is in, conflict with the Injunctions of Islam, hence, not sustainable in law. The D.D.O.(R)/Collector while appointing the petitioner as Imam of said Chak had also exceeded his jurisdiction as under section 3 of Act, the Collector is only competent to allot land to the Imam Masjid but he has I no authority/power to appoint an Imam.

16. For the foregoing masons and following the principles enunciated by the Islamic Jurisprudents, the vacancy of Imam of Chak No.8/ML, Tehsil Bhalwal, District Sargodha is declared vacant which will be filled in by a Committee comprising Chairman Zakat and Ushr Committee, Councillor of the said Chak and Lambardar of the village. They will determine the eligibility of Imam in an open assembly with the consultation of respectable persons of the locality/village where the mosque is situated keeping in view the criteria/conditions referred to above, without being prejudiced by political influence or by any of the person in authority.

17. The writ petition is disposed of in the above terms. M.H./A‑38/L Order accordingly.