Dismissed

Shaik Hafeez v. the Principal Secretary

Andhra Pradesh HC21 Sept 2023WA/621/2023

Case brief

AI extract

What is this about?

This judgment addressed a writ appeal challenging the government appointment of a second Kazi in Kandukur. The court interpreted Section 2 of the Kazis Act, 1880, distinguishing the case from one involving an existing Kazi, and dismissed the appeal holding the appointment valid.

What did the court decide?

The Writ Appeal filed by the petitioner is dismissed with no order as to costs.

Shaik Hafeez Vs the Principal Secretary — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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HON’BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON’BLE SMT.JUSTICE VENKATA JYOTHIRMAI PRATAPA

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Writ Appeal No.621 of 2023

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JUDGMENT : ( Per Hon’ble Smt. Justice Venkata Jyothirmai Pratapa)

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This Writ Appeal is filed under Clause XV of Letters Patent against the impugned order dated 03.05.2023in W.P.No.6030 of 2023, seeks to set aside the order. Appellant is the Petitioner and Respondent Nos.,1 to 6 are the respondents in the W.P.

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2. The Petitioner’s case is, thus: -

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a. The Government earlier appointed one Government Kazi in Kandukur town. Subsequently, the Government vide G.O.Rt.No.55 dated 15.02.2023¹ ,appointed Respondent No.6 as a Kazi, for a Masjid in Kandukur town and Masjid in certain villages in Kandukur Mandal with a tenure of three (03) years for performing marriages in Mohammedan community.

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b. Petitioner sought indulgence of the Court under Writ jurisdiction to set aside the G.O., referred above, since the appointment of Government kazi is in utter violation of the

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1 in short, ‘G.O.’

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UDPR,J& VJP,J

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procedure contemplated under Section 2 of the Kazis Act, 1880 (Act 12/1880).²

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c. District Collector, Prakasam submitted a report dated 18.08.2022, stating that the principal Mohammedans are not interested in appointment of another government Kazi for that area. Ignoring the said report, government appointed another Kazi relying on the report submitted by the District Collector, Nellore.

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3. Contention of the 6^th Respondent : -

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a. Attacking the petitioner’s claim to set aside G.O., respondent No.6 contends that petitioner has no locus standi to file the writ petition, since he is neither a Kazi nor is affected in any manner by the appointment of 6^th respondent as Government Kazi. His contention is that the litigation is a motivated one and the Petitioner was set up to file the W.P. as he happens to be the brother-in-law of the present Kazi.

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b. Government appointed the 6^th respondent as Kazi on the basis of report dated 11.01.2023, sent by the Collector, Nellore District since Kandukur town and Mandal falls within the limits of Nellore District, after bifurcation of the districts. The District Collector,

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2in short,Act 12 of 1880.

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Nellore observed that appointment of another Kazi is required as the present Kazi is collecting exorbitant fees for conducting marriages in the area.

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4. After hearing both the learned counsel and on examination of material placed on record, learned Single Judge dismissed the Writ Petition, vide an order dated 03.05.2023, observing that in the absence ofcontravention to Sec.2 of Act12/1880, interference of the Court is not appropriate.

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5. Feeling aggrieved and dissatisfied with the impugned order, the Writ Petitioner carried the matter in the appeal on the following grounds:

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a. The Tahasildar, Kandukur (5^th respondent) issued a public notice calling the opinion or objections of the Muslims of Kandukur town relating to appointment of another Kaji on 18.02.2020.Appellant expressed his desire not to have another Kazi, which was recorded by 5^th respondent.

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b. Tahasildar in turn sent the report to District collector, Prakasam (3^rd respondent), which was sent to the Principal Secretary, Minority Welfare Department (1^st respondent) dated 18.08.2022, stating that five (05) Muslim organizations expressed their willingness for appointment of another Kazi,against which, eleven (11) applications received expressing their displeasure for appointment of another Government kazi. Hence file is not submitted to the government, since the subject matter is totally against the Kazis Act, 1880.

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c. The District Collector further observed that most of the local Muslims of Kandukur town are not interested in appointment of another Kazi. The report of respondent No.4 is only indicating the jurisdiction.

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d. The learned single Judge ought to have observed that initially Court granted interim suspension on perusal of the report sent by respondent No.3 and prima facie opined that the appointment of 6^th respondent as Government Kazi, is without due consideration.

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Arguments Advanced at the Bar

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6. Heard Sri Basheer Ahmed, learned counsel for the appellant and learned Government Pleader for Minority Welfare Department for respondent No.1, learned Standing Counsel for Wakf board for respondent No.2, learned Government Pleader for Revenue for the respondent Nos.,3 to 5 and Sri Md. Saleem, learned counsel for respondent No.6.

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7. Learned counsel for appellant would submit that vide Sec.2 of the Act12/1880., before appointing another Kazi, there must be a request from a considerable number of Mohammedans residents of local area. In the instant case, there was no such request made by local Mohammedans, and that from the report sent by the District Collector, Prakasam it is clear that majority of the Mohammedans are not interested to have another Kazi. Therefore, the appointment of 6^th respondent as another Kazi is in

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UDPR,J& VJP,J

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utter violation of the procedure laid down under Section 2 of the Act and is liable to be set aside.

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8. Refuting the above submissions, learned counsel for 6^th Respondent would submit that after bifurcation of the Districts, Kandukurfell under Nellore District, as such based on the report sent by the District Collector, Nellore, the Government rightly appointed the 6^th respondent as another Kazi and further the said report would also indicate the misuse of the office by the existing Kazi. He would further submit that the Tahasildar after consulting local Mohammedans, only suggested the separation of the jurisdiction to both the Kazis.

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9. Whereas, learned counsel for respondent Nos., 1 to 5 would submit that the government after careful examination of the proposal for appointment and after consulting the Mohammedan residents of local area only appointed the 6^th respondent as Government Kazi for a period of three (03) years vide G.O. He would urge that in view of these facts,W.A. may be dismissed, since the learned Single Judge rightly dismissed the W.P.

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Point for Determination

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10. In the light of the rival submissions made across the bar, the

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question that raises for determination in this appeal is:

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Whether the appointment of 6^th respondent as Kazi is in accordance with Section 2 of the Kazis Act, 1880, if not whether his appointment vide G.O.Rt.No.55 dated 15.02.2023, is liable to be set aside?

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11. For better appreciation of the rival contentions raised, it is beneficial to understand the scope and ambit of provisions of

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Sec.2, which reads thus;

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“ Section 2.Power to appoint Kazis for any local area :.—

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Wherever it appears to the State Government that any considerable number of the Muhammadans resident in any local area desire that one or more Kazis should be appointed for such local area, the State Government may, if it thinks fit, after consulting the principal Muhammadan residents of such local area, select one or more fit persons and appoint him or them to be Kazis for such local area.

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If any question arises whether any person has been rightly appointed Kazi under this section, the decision thereof by the State Government shall be conclusive.

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The State Government may, if it thinks fit, suspend or remove any Kazi appointed under this section who is guilty of any misconduct in the execution of his office, or who is for a continuous period of six months absent from the local area for which he is appointed, or leaves such local area for the purpose of residing elsewhere, or is declared an insolvent, or desires to be discharged from the office, or who refuses or becomes in the opinion of the State Government unfit, or personally incapable, to discharge the duties of the office.”

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12. The Act 12 of 1880 provides for the appointment of Kazis in

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areas where by custom they are required to perform marriage

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ceremonies and other rites between Muslims. Section 2 would indicate that it if it appears to the State Governmentthat any considerable number of Muhammadans in any local area desire the appointment of one or more Kazis, then on consulting with the principal Mohammedan residents of such local area, it is empowered to appoint one or more persons to be Kazis for such area . Further, the provision also provided that on question as to whether a person is rightly appointed, the decision thereof by the State Government shall be final.It clearly indicates the Government is the proper authority and it is the prerogative of the Government to appoint one or more Kazis to that local area as desired by the Mohammedan residents of such area.

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13. Further Section 2 of the Act is very clear about the authority of the Government to appoint any number of Kazis depending on the necessity. It does not impose any restriction to have only one Kazi for the local area which would in certain circumstances lead to a monopoly. As such, the State Government having regard to the desire of the Mohammedan residents of local area, can appoint one or more Kazis for such local area. Meaning thereby, there can be more than one Kazi

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being appointed and undoubtedly, such power is being vested with the state Government.

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14. Learned counsel for the appellant in support of his contention placed reliance on the order dated 10.01.2020in W.P.22315 of 2019 of the High Court for the State of Telangana. The order cited by the learned counsel is distinguishable from the facts of the present case. The petitioner in W.P.22315 of 2019 approached the Court challenging the appointment of another Kazi on the grounds of contravention to Section 2i.e.,when he is appointed as Kazifor the entire district, the respondent cannot be appointed as a Kazi. In that view of the matter, the learned Single Judge observed that the appointment of the respondent as Kazi suffers from procedural irregularity, accordingly set aside the G.O. therein. Writ Petitioner in that case was an existing Kazi, appointed for the entire district. In the present case, the appellant is neither an aspirant nor an existing Kazi. He is a third party.Learned counsel for Respondent No.6 submits that this is a motivated litigation, since the appellant is the brother-in-law of the present Kazi, whose interest is affected by the appointment of another Kazi for the local area.

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UDPR,J& VJP,J

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15. It is essential to extract certain relevant portions from the impugned G.O. which read thus;

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“ 2. The reference third read above, the District Collector, SPSR Nellore District has obtained reports from the Sub Collector, Kandukur and the Tahsildar, Kadukur stating that a notice to the existing Kazi Sn Syed Sayeed, New Kazi Sri P. Mohammad Yasin& Muslim Elders and conducted the enquiry on 17.12.2022 at 03:00 PM, Tahsildar Office, Kandukur. Sri Patan Mohammed Yasin New Kazi has requested to indicate the Jurisdiction based upon the population. Some of the Mohammadan Muslims opined that to indicate the jurisdiction on basis of Wards, Populations and Numbers of Masjids available in Kandukur Mandal. He has further reported that in Kandukur town, on South side of OV Road and Masjid in Villages on south side i.e., KondamususuplemMopadu, Machavaram, Paluru, Dondapadu and other villages allotted to existing Kazi viz., Sri Syed Sayeed. The Masjids in Kandukur Town on North side of OV Road and Masjids in villages i.e., Kovuru, Kondikandukuru, ikkiralapeta, Pandalapadu, Jillealamudi, Palukuru and other villages attached to New Cazi Sri Patan Mohammad Yasin.

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3. After careful examination of the report of the District Collector, SPSR Nellore, Government hereby appoint Sri Pathan Mohammad Yasin, S/o Sri P. Khasim Khan, Islampeta, Kandukur Town & Mandal, SPSR Nellore District as Government Kazi for the District, initially for a period of three (3) years for Masjids in Kandukur Town on North side of OV Road and Masjids in villages i.e., Kovuru, Kondikandukuru, Vikkiralapeta, Pandalapadu, Jillealamudi, Palukuru and other villages of performing Marriages of Muslim Community only, subject to the following conditions:

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1.TheKazi is answerable to the Government for his actions.

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2.The appointment of the Kazi can be revoked by the Government on receipt of complaints/verification of records or in extreme cases without notice, if malafide is established as per record.

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3.TheKazi shall not indulge any illegal activity in the conduct of marriages nor infringe any law established by the Government.

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4. The Kazi shall not carry out marriage of any minor.

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5. The Kazi shall not act in any way which is prohibited in Islam or is not permissible in Islam.

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6. The Kazi shall not conduct contract marriages.

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7. The Kazi or his NaibKazi shall not perform any marriage, in any area, beyond his specified jurisdiction.

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8. The Kazi shall charge the specified fee and nothing more than that.

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9. The Kazi shall appoint not more than three (3) NaibKazis and the names of such NaibKazis shall be informed to the Government.

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10. Government shall have the right to take disciplinary action against the Kazi, in case of any contravention of Law or of any conditions specified above.

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11. The Kazi shall hand-over the Marriage Record to the Wakf Board, at the end of the tenure.”

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16. Record shows the 6^th respondent herein filed

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W.P.No.7042 of 2022, seeking direction to the authorities to consider his representation for his appointment as Kazi. Slew of directions were issued in the said W.P. to attend the

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representations made by 6^th respondent within time frame. Accordingly, the District Collector, Nellore ordered the Tahasildar, Kandukur to make enquiry and submit a report. The Tahasildar in the course of his enquiry noted that the incumbent Kazi appointed eight individuals as Nayab Kazis to perform marriages on his behalf, which would indicate the necessity for more number of Kazis. Further, the report of the District Collector also indicates the desire of people to have another Kazi.

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17. At this juncture, it is essential to reminisce a decision already rendered. In Syed A Khadir Chistty v. State of A.P³ , a challenge was raised by an existing Kazithat there was absolutely no requirement for the government to appoint Respondent No.3 as Kazi. His contention was that the subsequent appointment falls contrary to Section 2. This Court on historical and jurisprudential appreciation held that the Act did not confer any legal rights or duties on the Kazis, and as such Section 4 does not close doors for Muslims to discharge the functions of Kazi by anybody else, other than a Kazi appointed vide the Act. This Court while deciding the locus standi held that any exclusive

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3 W.P.No.4122 of 2019 of Andhra Pradesh High Court, dated 17-03-2021.

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right or monopoly as a Kazi cannot be claimed and a challenge does not lie solely on the ground that the Petitioner was already officiating as Kazi for the same area. Further on the count of on certain misconduct alleged, this Court ordered conducting of an enquiry.

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18. In the back drop of legal position discussed supra, it is very clear that no judicial or administrative powers are attached to the office of the Kazi. Section 4 is very clear to the effect that the Act 12 of 1880 does not prevent any person from discharging any of the functions of a Kazi, whether appointed thereunder or not. Further, Section 2 makes it clear that, in case of any question regarding the appointment of Kazi as per the Act, the decision of the Government is conclusive. When it appears to the Government, that appointment of Kazi is necessary in a particular area after consulting with the Mohammadens of that area, as desired by the considerable number of Muslims, any number of Kazis may be appointed by the Government. As rightly argued on behalf of respondents, Kandukur area falls within the jurisdiction of Nellore, therefore the report of the District Collector, Nellore would prevail as referred above. In the light of the aforementioned

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discussion, we are of the view that Writ Appeal deserves dismissal. Accordingly, Point answered.

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19. In result, Writ Appeal is dismissed. No order as to

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costs.

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As a sequel thereto, miscellaneous petitions, if any, shall stand closed.