Kerala High Court
Haji P.Ahamed Musliar Pathada vs U.T. Of Lakshadweep
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939
W.P(C).No.21813 of 2017 (B)
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PETITIONER(S):-
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HAJI P.AHAMED MUSLIAR PATHADA, S/O. MUSAMMIL,
RESIDING AT ALIMECHATTA HOUSE,
KADAMATH ISLAND, U.T. OF LAKSHADWEEP.
BY ADVS.SRI.T.SETHUMADHAVAN (SR.)
SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANKUMAR
SMT.VANDANA MENON
SMT.N.DEEPA
RESPONDENT(S):-
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1. U.T. OF LAKSHADWEEP,
REPRESENTED BY ITS ADMINISTRATOR,
KAWARATHI, LAKSHADWEEP, PIN - 682 555.
2. THE ADMINISTRATOR,
U.T.OF LAKSHADWEEP,
KAWARATHI, PIN - 682 555.
3. THE DIRECTOR,
GENERAL ADMINISTRATION AND PROTOCOL,
U.T.OF LAKSHADWEEP,
KAWARATHI, PIN - 682 555.
4. THE SUB DIVISIONAL OFFICER,
KADAMAT ISLAND, U.T.OF LAKSHADWEEP,
KAWARATHI,PIN - 682 586.
ADDITIONAL 5TH RESPONDENT IMPLEADED:
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Addl. R5. P.P.MOHAMMED BASHEER, AGED 52 YEARS,
S/O LATE PALLAM MOHAMMED HAJI,
PUTHIYAPURA HOUSE, KADAMATH ISLAND,
UNION TERRITORY OF LAKSHADWEEP, PIN-396 230.
ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED
13.07.2017 IN I.A.NO.10574 OF 2017.
R1-R4 BY GOVERNMENT COUNSEL FOR LAKSHADWEEP ADMINISTRATION SRI.MANU.S.
ADDL.R5 BY ADV. SRI.A.A.ZIYAD RAHMAN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12-10-2017, ALONG WITH W.P.(C) NO.20926 OF 2017-M, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.21813 of 2017 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1 TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECRETARY,
SAMASTHA KERALA JAMIYYATHUL ULAMA TO THE SECRETARY TO
ADMINISTRATOR, U.T.OF LAKSHADWEEP DATED 27.06.2005.
EXHIBIT P2 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 20.07.2005.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE ASDO, KADAMATH,
DATED 04.05.1993.
EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY SUB DIVISIONAL
OFFICER, KADAMATH DT. 28.06.2016.
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS OF THE OFFICE OF THE KHAZI
DATED 28.03.1996.
EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE SUB DIVISIONAL OFFICER,
KADAMATH DATED 16.6.2017.
RESPONDENT(S)' EXHIBITS:-
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EXHIBIT R5(a) TRUE COPY OF THE MINUTES OF THE MEETING THE COPY OF
WHICH WAS OBTAINED UNDER THE PROVISIONS OF THE RIGHT
TO INFORMATION ACT.
EXHIBIT R5(b) TRUE COPY OF THE OFFICE MEMORANDUM BEARING
F.NO.5/3/2012-sdo/kdt. Dated 23.08.2012.
vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).Nos.21813 of 2017-B & 20926 of 2017-M
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Dated this the 12th day of October, 2017
JUDGMENT
Identical issue is raised in both the writ petitions. The dispute arise under the Kazis Act, 1880; the manner in which Kazis for any local area are to be appointed by the State Government as per Section 2. The precise question to be decided is as to whether the consultation with the principal Muhammadan residents of such local area in which the appointment is to be made, has to be at the first instance or only at the time of appointment from among the fit persons. Section 2 of the Act, to the extent it is relevant, is extracted hereunder:
"2. Power to appoint Kazis for any local area.- 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". WP(C) Nos.21813/17 & - 2 - 20926/17
2. The learned Senior Counsel appearing in W.P.(C) No.21813 of 2017 and the learned Counsel appearing in W.P.(C) No.20926 of 2017 contend that a consultation has to be made at the first instance and not merely before the appointment. The petitioner in the former writ petition is one of the applicants and the other writ petition is filed by a resident of one of the islands. The documents are referred to from W.P.(C) No.21813 of 2017.
3. There was a notification brought out by the Administration, as is seen from Exhibit P6 dated 16.06.2017. Religious scholars of Kadamath Island who are desirous of being appointed as Kazis, were directed to apply in pursuance to ext.P6 notice; which selection was to be by an interview. An interview board, consisting of three independent persons from the main land, was appointed, according to the Administration. The 3 members appointed were (i) Muhammed Kunju P.A., who is a Ph.D holder in Arabic from the Kerala University, (ii) Ashraf.A., an Assistant Professor, Department of Islamic Studies, University of Kerala and
(iii) Dr.Thajudeen.A.S., Head and Assistant Professor, Department of Arabic, University of Kerala. An interview was conducted and at that WP(C) Nos.21813/17 & - 3 - 20926/17 juncture W.P.(C) No.20926 of 2017 was filed, in which there was an interim direction issued not to carry out any appointment. The proceedings of interview is said to be kept in a sealed cover. According to the Administration, the sealed cover would be opened and the names of those qualified will be informed to the residents of the locality for an effective consultation and a decision will be taken in the matter of appointment of Kazis from among those persons found to be fit to be appointed as Kazi.
4. The learned Senior Counsel argues that the consultation would not be effective if done at that stage since the options available would be limited and confined to those selected in the interview. Yet again all the 14 who applied, if found to be not acceptable in consultation then the entire exercise would be futile. It is the specific argument that if all the 14 are found to be ineligible on consultation, then there would be no purpose seved and to avoid that contingency; the fit persons should be found out in the consultation and then an interview conducted to select the best from amongst them who are acceptable to the local residents. WP(C) Nos.21813/17 & - 4 - 20926/17
5. The learned Standing Counsel for the Administrator submits that the issue is covered by the decision in Sayed Ahamedkoya Thangal v. Administrator [1997 (2) KLJ 362]. The learned Counsel appearing for the additional 5th respondent; while supporting the administration, all the same refers to Exhibit R5(a); evidencing a consultation having been carried out at the first instance.
6. Section 2, to that extent extracted hereinabove, has already been interpreted by Sayed Ahamedkoya Thangal. The reigning issue raised in the aforesaid case was with respect to the position of Kazis being hereditary, which was negatived by the learned Single Judge; which issue does not arise herein. There was also an objection raised as to the manner in which the selection was carried out therein, which has similarity to the selection now carried on, which is the subject matter of the instant writ petitions. The contention raised therein was also that a Kazi can be appointed for a local area only when a considerable number of the Muhammadan residents in any local area desires such appointment and there is a consultation carried out with the principal Muhammadan residents of WP(C) Nos.21813/17 & - 5 - 20926/17 such local area. The notification for interview was challenged on the ground of both these conditions having not been satisfied.
7. The Court found that there was a request from the local Muhammadan residents for appointment of Kazis, which satisfied the earlier limb of the provision regarding the expression of desire. The notification therein also included the scholars of the main land to be members of the committee, which, according to the objectors, were not envisaged under Section 2. The Court found that if there are rival contestants, the Administration would be free to appoint a committee to interview the candidates and ascertain their suitability for which there is no prohibition under the Act. The consultation with the principal Muhammadan residents was found to be not one; to be carried out by the Interview Committee. The consultation was to be carried out by the Administration. It was categorically held that occasion for consultation arise only after the Interview Committee selects suitable candidates.
8. Despite the persuasion of the petitioners' Counsel to differ from the said opinion, this Court is not convinced of any different interpretation possible of Section 2. The second limb of WP(C) Nos.21813/17 & - 6 - 20926/17 Section 2 speaks of appointment of Kazis for local areas by the State Government after consulting the principal Muhammadan residents of the local area; by selecting one or more fit persons and appointing him or them as Kazis for such local area. Hence, the consultation has to be for appointing the fit person. In finding out a fit person, the Administration has called for applications from Islamic scholars and has constituted a committee of independent persons from the main land to carry out a selection by interview.
9. The credentials of the independent persons constituting the committee has also been placed before Court. The petitioner, who was one of the candidates, has an objection about the Chairman, who is said to be a strong supporter of a splinter group. The said objection cannot be countenanced by this Court especially without the person against whom the allegation is raised not being impleaded in the party array. Further, there are two other committee members who are also interviewing the candidates who have applied, which would efface any factional influence, if at all.
10. The petitioners also contend that in fact an Interview Board was constituted of the Kazis belonging to different islands of WP(C) Nos.21813/17 & - 7 - 20926/17 the Union Territory, totally unconnected with the local area and there could be a direction to conduct the interview and select fit persons from amongst those applied, by the committee so constituted. The learned Standing Counsel for the Administration, however, points out that in the faction-ridden island it is difficult to have an unbiased committee of Kazis from within the island itself. Reference also is made to the statements in W.P.(C) No.20926 of 2017, of an earlier practice and custom of constituting an Interview Board with a Chairman and members from Samastha Kerala Jam-iyyathul Ulama, Kozhikode. The factional fights within that organisation has also rendered it a nonviable option. It is, hence, the academics and those proficient in Arabic language, history and Islamic religious practises were appointed as Chairman and Members of the Committee.
11. Exhibit R5(a) is also of sufficient relevance; which is a copy of the minutes of the meeting called by the Administration of the principal Muhammadan residents of the locality. The petitioner in W.P. (C) No. 21813 of 2017 was also one of the persons who were called for the meeting. There were many suggestions made for appointment of Kazis and there was no consensus arrived. It is WP(C) Nos.21813/17 & - 8 - 20926/17 specifically pointed out by the 5th respondent that the petitioner had put himself forward for appointment, which was not responded to by any of the prominent residents who attended the said meeting. Only in the context of no consensus having been arrived, the Administration issued the notification calling for persons to be appointed as Kazis. This Court does not find any defect in the procedure adopted by the Administration.
12. Before leaving the matter, the specific argument of the learned Senior Counsel with respect to the principal residents not accepting any of the selected candidates has to be dealt with. Though such a situation has not, as of now, arisen, the consultation as referred to in the Section is not binding on the State Government, who has to ultimately decide on the appointment. If this Court were to accept the said argument then the Consultation should be the deciding factor for appointment of Kazis. The provision however vests the absolute authority to appoint, on the Administration and only requires a consultation before the appointment is carried out. Consultation has to be effective; but, the opinion of the body which is consulted can always be differed from by the appointing authority. WP(C) Nos.21813/17 & - 9 - 20926/17 The only reservation would be, when arriving at a decision differing from the objections or competing preferences; if any made by the body which is consulted, should be dealt with properly. The decision should be one infused with reasonableness; without the vice of arbitrariness.
The contentions raised by the petitioners against the procedure adopted are devoid of any merit and are negatived. The Administration would be free to proceed with the appointment after consultation as mandated in the Section, which this Court, in the cited decision has found to be necessary only at the time when appointment is made from the fit persons selected in the interview. The writ petitions are dismissed, with the parties left to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
Vku/-
[ true copy ]