Disposed

Syed a Khadir Chistty v. the State of Ap

Andhra Pradesh HC17 Mar 2021WP/4122/2019

Case brief

AI extract

What is this about?

A former Government Kazi challenged a new appointment for the same area, alleging lack of local request and misconduct. The court held a new appointment is valid despite existing tenure but due to unaddressed misconduct allegations, the appeal was disposed of by remand. No final order on validity.

What did the court decide?

Writ petition disposed of by directing the 2nd respondent to conduct an inquiry into the alleged misconduct of the 3rd respondent and submit a report within three months.

Syed a Khadir Chistty Vs the State of Ap — Service and Employment | Andhra Pradesh HC (2021)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO Writ Petition No.4122 of 2019

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ORDER :

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The petitioner seeks writ of mandamus declaring the action of the 1^st respondent in appointing the 3^rd respondent as Government Kazi vide G.O.Rt.No.130 dated 10.03.2019 for Vijayawada East Assembly Constituency (Gunadala, Patamata, Autonagar and Bhramarambapuram) which come under the jurisdiction of the petitioner as a Government Kazi and without considering petitioner’s representation/objection and without there being any request from the considerable number of Mohammadan residents of the local area, as contemplated under Section 2 of the Kazis Act, 1880, as illegal, arbitrary and canons of fair play and natural justice and offensive of Article 14, 21 and 19 (1) (g) of the Constitution of India and consequently, set aside the same and to pass such other order as deemed fit under the circumstances of the case.

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2. Petitioner’s case is thus:

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a) The petitioner was appointed as a Government Kazi for Vijayawada city to perform marriages in Muslim community as per the Kazis Act, 1880 by the 1^st respondent in the year 2005 vide G.O.Ms.No.12 dated 16.03.2005. Ever since the petitioner has been performing his duties to the utmost satisfaction of all concerned without there being any complaint. While so, to the utter surprise and dismay of the petitioner, the 1^st respondent has appointed the 3^rd respondent as a Government Kazi for Vijayawada East Assembly

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Constituency i.e., Gunadala, Patamata, Autonagar and Bhramarambapuram vide G.O.Rt.No.130 dated 10.03.2019 initially for a period of three years, though there being no requirement for another Kazi in that area.

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b) As per Section 2 of the Kazis Act, before appointing another Kazi, there must be a request from a considerable number of Mohammadan residents of local area for another Kazi. In the instant case, there was no such request made by local Mohammadans. In spite of the same, the 1^st respondent has unilaterally appointed the 3^rd respondent. Hence, such appointment is liable to be set aside.

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c) The Government, before appointing another Kazi ought to have taken into consideration the area of operation of existing Kazi and took a resolution as to whether there is any justification for appointment of another Kazi in the same area. In the instant case, no such exercise appears to have been undertaken.

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d) Before appointing the 3^rd respondent, notice dated nil-12-2017 was served on the petitioner by the 2^nd respondent and the petitioner submitted his representation/objection on 03.01.2018 wherein he clearly and categorically stated that there was no requirement of appointing another Kazi, because in Vijayawada and in surrounding areas, there are four Kazis including Vijayawada suburban and rural areas. Apart from that, the 3^rd respondent was behaving in such a manner that he was claiming himself as Shariyat-e-Kazi in Vijayawada which is first of its kind in Andhra Pradesh and

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propagating himself as a muslim judge and established a parallel judicial system by issuing notices to the individuals in Urdu language to attend his court. Against his activities, many people gave complaint and the District Collector referred the matter for enquiry to the C.E.O., A.P. State Wakf Board under No.7725958-2017 and the enquiry is pending. Thus, the application of the 3^rd respondent for appointment of Government Kazi is itself not maintainable. In view of such background, the 2^nd respondent ought not to have recommended the 3^rd respondent for appointment as Kazi which is highly illegal.

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e) So far as petitioner’s jurisdiction is concerned, the most populous areas are Islampet and Wynchipet, Vijayawada. In the year 2019, the Government have appointed another Kazi for Islampet and Wynchipet local areas, due to which, the petitioner suffered irreparable loss. In the instant case, the appointment of the 3^rd respondent for Vijayawada East Assembly Constituency is very unfair in as much as those areas come under the jurisdiction of the petitioner and thereby, the petitioner is deprived of his livelihood. That apart, a person, who is facing enquiry, is being appointed as Kazi without considering the representation of the petitioner.

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Hence the writ petition.

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The 1^st respondent filed counter opposing the writ petition and inter alia contending thus:

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a) The 2^nd respondent being the Collector and District Magistrate has furnished a proposal for appointment of the 3^rd respondent as Government Kazi for Vijayawada East Assembly Constituency (Gunadala, Patamata, Autonagar and Bhramarambapuram). He has reported that the applicant has completed Hafiz Alim and Mufti courses. Further, the local Mohammadans (professionals, merchants and others belonging to Muslim community) have given representations stating that the 3^rd respondent was fit and a proper person to be appointed as Kazi in their area and the requirement for one more Kazi was there, since Muslim community in the locality was growing considerably. The Commissioner of Police, Vijayawada city, has informed that there was nothing adverse against the applicant as per the police records within the Vijayawada city Police Commissionerate limits. The District Collector, while enclosing the copies of certificates, reports and Inspector Auditor Wakf Report and representations of local Mohammadans, requested the Government to take further necessary action in the matter.

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b) The Government, after careful examination of the proposal of the 2^nd respondent and after consulting the principal Mohammadan residents of local area, appointed the 3^rd respondent as Government Kazi for Vijayawada East Assembly Constituency for a period of three years for performing marriages of Muslim community only, as per Section 2 of the Kazis Act vide G.O.Rt.No.130, Minorities

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Welfare (IDM) Department, dated 10.03.2018. In view of these facts, the writ petition may be dismissed.

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The 3^rd respondent filed counter contending as follows:

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a) It is admitted that the 3^rd respondent was appointed as Government Kazi for Vijayawada East Constituency. However, it is false to allege that his appointment was made without there being any request from the considerable number of Mohammadan residents in the local area as contemplated under Section 2 of the Kazis Act, 1880. On the other hand, his appointment was made by strictly following the provisions of the Kazis Act, after considering the various representations made by the Mohammadan residents of the local area. However, the appointment of the petitioner was not made in accordance with the provisions of the Kazis Act, as there was no consultation of the local Mohammadan residents.

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b) The 3^rd respondent is highly qualified in Urdu and Arabic languages possessing degrees in (i) Hafiz-e-Quran (ii) Quarry (iii) Alim (iv) Mufti (v) Quazi (vi) Urdu Diploma (vii) Arabi Diploma (viii) Diniyath, and (ix) B.A. from Moulana Azad University. In addition, the Commissioner of Police, Vijayawada city, gave a report with regard to the character and antecedents of the 3^rd respondent after thorough verification. Therefore, the allegations of the petitioner against his appointment are not true.

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c) So far as the objections filed by the petitioner against his appointment are concerned, they have no consequence with regard to

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his appointment. The petitioner cannot claim any monopoly on Vijayawada city as Kazi.

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d) The petitioner’s allegations that the 3^rd respondent is claiming himself as Shariyat-a-Kazi in Vijayawada city and propagating as Muslim judge and establishing parallel judicial system are false. After securing antecedents of the 3^rd respondent from the Commissioner of Police, Vijayawada city only, he was appointed as Kazi and therefore, the contra allegations are false. It is stated that the subject committee is only an advisory and counselling committee meant for the poor and needy Muslims who voluntarily approach them for clarifying their doubts with regard to the Islamic Law and Shariyats. In fact, the committee having consisted of well educated persons in Islamic Law will try to advise them as per the Shariyat to resolve their problems particularly the matrimonial issues. Therefore, the allegation that they are conducting a parallel court is false and is pressed into service to prejudice the Court without there being any material. So far as the report of the Inspector Auditor Wakf, Krishna District, to the Chief Executive Officer, A.P. State Wakf Board is concerned, it is without any right, authority or jurisdiction. Neither the Wakf Board nor the Inspector Auditor Wakf, Krishna District, who is at the rank of U.D.C. have any right to give such reports with reference to the Kazis Act. The Wakf Act, 1995 is different and it has no say in the matters of appointment of Kazis and related issues. The said report was submitted behind the back of the 3^rd respondent at the

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behest of the writ petitioner to create hurdle in the matter of appointment of the 3^rd respondent.

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e) When a Kazi was appointed to Islampet and Wynchipet of Vijayawada in the year 2010, the writ petitioner did not raise any objection, but unfortunately he raised objection in the present instance. The petitioner being a subordinate to the 1^st respondent do not have locus to challenge the Authority and jurisdiction of the Government in the matter of appointment of the 3^rd respondent or other Kazis. The petitioner intends to exercise monopoly over Vijayawada city. The writ petition is bereft of merits and hence, it may be dismissed.

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Heard Sri Sitaram Chaparla, learned counsel for the petitioner, learned Additional Advocate General for respondent Nos.1 and 2, and Sri S.M. Subhani, learned counsel for the 3^rd respondent.

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The main plank of argument of learned counsel for petitioner Sri Chaparla Sitaram is that absolutely there was no requirement of appointing 3^rd respondent as Kazi for Vijayawada East assembly constituency (Gunadala, Patamata, Autonagar and Bhramarambapuram) as the petitioner has already been officiating as Kazi for Vijayawada including Vijayawada East Assembly Constituency without any blemish or complaint from any quarter since 2005. Further, the appointment of 3^rd respondent was made in sheer violation of Section 2 of the Kazis Act, 1880 in as much as no Mohammadan residents of local area ever desired to have another

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Kazi in addition to the writ petitioner and they never made any representation to respondents 1 and 2. In spite of the same, the 1^st respondent has hurriedly appointed the 3^rd respondent. Above all, the conduct of 3^rd respondent is not blemishless to entitle him to officiate as Kazi. The petitioner, in his representation/objection dated 03.01.2017, has clearly narrated that the 3^rd respondent has been proclaiming himself as a Shariyat-e-Kazi and acting as a muslim judge by running a parallel judicial system and issuing notices to the individuals to attend before his court i.e., Darul-Qaza and settling the disputes among the muslims and issuing Fatwas. However, without considering the objections of the petitioner and conducting any enquiry, the respondent authorities have appointed the 3^rd respondent. In the counter filed by the 1^st respondent, no answer was given against the allegations made by the petitioner.

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Per contra, learned Government Pleader for minorities representing learned Advocate General argued that in the matter of appointment of a Kazi, even for the same area, the existing Kazi cannot have any say as per the Kazis Act. Therefore, the petitioner cannot harp that the provision under Section 2 has been violated. He would argue that on the request of the local muslim residents, the 3^rd respondent is appointed as Kazi after full-fledged enquiry. The Tahasildar and Commissioner of Police have avouched for the conduct of the 3^rd respondent. Therefore, it is preposterous to contend

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that Section 2 has been violated. The allegation that the 3^rd respondent has been running parallel judicial system is wrong.

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Sri S.M. Subhani, learned counsel for the 3^rd respondent argued that the petitioner made undue and untenable allegations as if the 3^rd respondent has been acting as muslim judge and running parallel judicial system. He argued that the 3^rd respondent and some other educated muslims have commenced a charitable trust called as “Imarat-E-Shariah Educational And Charitable Trust” for upliftment of poor muslims. As a part of its activities they are running Darul-Qaza and only counselling the needy muslims and they never operated a parallel judicial system as alleged by the petitioner. The 3^rd respondent is well versed in religious tenets and considering the same only, he was appointed. Learned counsel requested to dismiss the writ petition.

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9. The points for consideration are:

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Whether the petitioner has locus standi to challenge the appointment of 3^rd respondent as Kazi ?

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If point No.1 is held affirmatively, whether the appointment of 3^rd respondent as Kazi is liable to be set aside?

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10. Point No.1:

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Admittedly, the writ petitioner was appointed as Kazi for Vijayawada city of Krishna District vide G.O.Ms.No.12, Minorities Welfare (Wakf-I) Department, dated 16.03.2005 and he has been

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officiating as such till date. Now that the Government have appointed the 3^rd respondent as Kazi for Vijayawada East Assembly Constituency, (Gunadala, Patamata, Autonagar and Bhramarambapuram) for a period of three years for performing marriages of muslim community, vide G.O.Rt.No.130 dated 10.03.2019, the petitioner challenges the said appointment. The challenge is on two grounds - firstly, that the petitioner was already appointed as Kazi for the entire city of Vijayawada and he has been officiating as such without any blemish and to the satisfaction of one and all and in that view, the appointment of 3^rd respondent for a part of Vijayawada i.e., Vijayawada East Assembly Constituency (Gunadala, Patamata, Autonagar and Bhramarambapuram) which falls within the jurisdiction of the petitioner, is untenable.

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The second ground on which the 3^rd respondent’s appointment is challenged is of course, on the allegation that he is guilty of misconduct for conducting the Darul-Qaza, a Court for deciding the disputes of muslims and proclaiming himself as muslim judge and issuing notices and Fatwas to parties and thus holding a parallel judiciary, and the respondents 1 and 2 failed to consider the aforesaid allegations levelled by the petitioner in his representation/objections.

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Now, I will consider these two grounds in the context of deciding the locus of the petitioner to file the writ petition.

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To consider the first ground, it is apt to discuss the scope and ambit of Kazi Act, 1880. In Ahmed Mohiuddin Farooqui Vs. The

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State of Maharashtra¹ , those aspects have been discussed. In the said case, the High Court of Bombay was dealing with the question as to whether the Wakf Board has power to appoint Kazis. The petitioner therein claiming that he was practicing as Kazi in Parbhani, challenged the appointment of respondent No.3 by the Wakf Board. In that context, the High Court of Bombay considered the legislative history of Kazis Act, 1880. It is observed that the preamble of the Act stipulated that as per the usage of Mohammadans community in some parts of India, the presence of Kazis appointed by the Government was required at the celebration of marriages and the performance of other rites and ceremonies, and it was therefore expedient that the Government should be empowered to appoint persons to the office of Kazi. The Statement of Objects and Reasons of the Act, 1880 indicated that before the advent of British Rule in India the Kazis performed chiefly 4 functions.

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(1) preparing and attesting deeds of transfer and other law-papers;

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(2) celebrating marriages and presidng at divorces;

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(3) performing various rites and ceremonies;

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(4) superintending the sale of distrained property and paying charitable and other pensions and allowances.

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However, after the introduction of British Rule, Judges and Magistrates since started playing judicial role then played by Kazis,

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1 MANU/MH/2026/2009

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the British Government confined the role of Kazis to functions 2 and

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Accordingly, in 1864 by an enactment, the Government repealed all the regulations relating to appointment of Kazis by Government. Thereafter, several representations were received by the Government from the Muslim community depicting the inconvenience caused to muslim population by the repeal of the regulations empowering the State to appoint Kazis. In that backdrop, Kazis Act, 1880 was brought on to the statute book.

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It was further observed by High Court of Bombay that the Statement of Objects and Reasons made it clear that the Act conferred no legal rights or duties on Kazis. It has been enacted only to fulfil the needs of Mohammadan community which were in vogue at that point of time. The extract from the report of the select committee indicated that it was urged by some authorities that the Act should define the duties of Kazis to be appointed under the Act and should give them exclusive right to perform those duties. However, while enacting the Kazis Act, it was considered impracticable to confer upon one or more persons monopoly of the office.

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In the light of the above observations of the High Court of Bombay, when the provisions of Kazis Act, 1880 are perused, Section-2 lays down that the State Government is vested with the power to appoint one or more Kazis when a considerable number of Mohammadans residents in any local area desire such appointment. Such appointment is to be done in consultation with the principal

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mohammadan residents of the local area. The decision of the State Government in respect of such appointment is conclusive. Thus, Section-2 makes it clear that for same local area, one or more Kazis can be appointed. It indicates that no Kazi appointed by the Government can claim any exclusive right of monopoly for that area. This is made further clear in Section-4 which reads thus:

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4.Nothing in Act to confer judicial or administrative powers; or to render the presence of Ka’zi’s necessary; or to prevent any one acting as Ka’zi’s – Nothing herein contained, and no appointment made hereunder, shall be deemed-

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(a)to confer any judicial or administrative powers on any Ka’zi or Naib Ka’zi’ appointed hereunder; or

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(b)to render the presence of a Ka’zi’ or Naib Ka’zi’ necessary at the celebration of any marriage or the performance of any rite or ceremony; or

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(c) to prevent any person discharging any of the functions of a Ka’zi’.

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Section-4 pellucidly states that nothing in the Act shall prevent

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any person from discharging any of the functions of a Kazi, meaning thereby, a Kazi does not have the exclusive right of discharging functions as Kazi, whether or not appointed under the Act of 1880. Thus, the provisions of Kazis Act do not in any manner confer an exclusive right on a person who is appointed as a Kazi under the Act, to act as a Kazi.

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Similar view has been expressed by the High Court of Andhra Pradesh in Quazi Mohd. Najmuddin Hussain Vs. State of A.P and others² . It observed thus:

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“ 17 XXX. But as we have pointed out hereinabove and we would like to reiterate that this Act neither gives any power to any Kazi appointed under it, nor grants any privilege to the Kazis appointed under the Act. This Act also does not close doors for Muslims to appoint anybody else, than a Kazi appointed by the Government for performing the functions or ceremonies, which are performed by Kazis appointed under the Act.”

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In view of the above jurisprudence delineating that a Kazi who is officiating as Kazi whether on appointment by the Government or otherwise, cannot claim any exclusive right or monopoly as a Kazi, the petitioner in the instance case cannot question the appointment of 3^rd respondent as Kazi for the Vijayawada East Assembly Constituency on the ground that he was already officiating as Kazi for the same local area.

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The second ground canvassed by the petitioner is with regard to the alleged misconduct of the 3^rd respondent and his becoming unfit for appointment as Kazi. The question is whether on this ground the petitioner has locus standi to challenge the appointment of 3^rd respondent. Section-2 lays down that the State Government can suspend or remove any Kazi who is guilty of certain acts including misconduct in the execution of his Office and his becoming unfit for performing his duties. Since the writ petitioner makes certain allegations against the 3^rd respondent which, if established, will expose his misconduct or render him unfit for the post of Kazi, I hold

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2 MANU/AP/0588/2005

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that the petitioner has locus-standi to question the appointment of the 3^rd respondent on this second ground though not on the first ground.

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20. POINT No.2

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As already stated supra, the petitioner challenges the appointment of 3^rd respondent mainly on the ground of his misconduct. In his representation/objection dated 03.01.2017 the petitioner alleged that the 3^rd respondent boasted himself as a Shariyat-E-Kazi in Vijayawada and started propagating as a muslim judge and established a parallel judicial system by issuing notices to the individuals to attend his court i.e., Darul-Qaza without any authority of Law. He also gives case number, affixes seal of his court, and terming the parties as plaintiff and defendant. It is further alleged that some complaints were made against him to the Hon’ble Apex Court, High Court and Principal Secretary of Minorities Welfare Department and hence he may not be appointed as Kazi. The petitioner also referred the report of Inspector-Auditor Wakf Board said to have been submitted to CEO, A.P. State Wakf Board dated 05.02.2018 stating that on his enquiry he found that the 3^rd respondent herein has been maintaining Darul-Qaza along with some others without any power or authority.

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The 3^rd respondent in his counter, while denying the above allegations contended that Darul-Qaza, Darul-Ifta are only advisory and counselling committees meant for the poor and needy muslims who voluntarily approach them for clarifying their doubts with regard

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to the Islamic law and shariyats. The committee consists of well educated persons in the Islamic law who will advise the seekers as per the Shariyat law to resolve their problems particularly matrimonial issues. He staunchly denied having conducted parallel court.

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Be that it may, surprisingly in the counter of the 1^st respondent nothing has been stated regarding the allegations made by the petitioner and any enquiry has been conducted in that regard and result thereof. As rightly argued by the learned counsel for the petitioner, having given notice to the petitioner calling for his objections regarding the appointment of the petitioner, the respondents 1 and 2 are obligated to conduct enquiry regarding the truth or otherwise of the allegations made by the petitioner. No doubt, the 3^rd respondent in his counter denied the allegations levelled by the petitioner. However, in my considered view, the authority who appointed him owes a responsibility to conduct an enquiry before appointing the 3^rd respondent. Even in G.O.Rt.No.130 which relates to the appointment of 3^rd respondent as Kazi, except mentioning that the commissioner of police, Vijayawada reported that there was nothing adverse against the 3^rd respondent, no mention is made about the representation of the petitioner and the truth or otherwise of the allegations therein. Section-2 of the Kazi Act, 1880 lays down that on the ground of misconduct and unfitness among other disqualifications, a Kazi can be removed from his office. Since the counter of the 1^st respondent and G.O.Rt.No.130 are silent regarding the allegations and

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no personal hearing was given to the petitioner before appointment of 3^rd respondent, I am of the considered view that the matter requires to be remanded to the 2^nd respondent to conduct such enquiry.

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Accordingly, this writ petition is disposed of with a direction to the 2^nd respondent to conduct an enquiry regarding the allegations made by the petitioner against the 3^rd respondent by affording an opportunity of personal hearing to the petitioner and 3^rd respondent and submit his report to the 1^st respondent for passing an appropriate order regarding the appointment of the 3^rd respondent. The entire exercise shall be completed within three months from the date of the receipt of this order.

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As a sequel, interlocutory applications pending, if any, shall stand closed.

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_________________________ U.DURGA PRASAD RAO, J

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17^th March, 2021 krk/cbs

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

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Writ Petition No.4122 of 2019

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