Andhra Pradesh High Court - Amravati
Government Kazi For Kavali Town And ... vs Unknown on 4 November, 2022
Author: M. Ganga Rao
Bench: M. Ganga Rao
THE HON'BLE SRI JUSTICE M. GANGA RAO
Writ Petition Nos.445 & 14913 of 2020
COMMON ORDER:
WP.No.445 of 2020 is filed by one Dr.Mohammad Khaleel Ahmed against the State (1st respondent) and one Shaik Sayeed Ahmed (2nd respondent), seeking to issue a writ of mandamus declaring the action of the 1st respondent in appointing the 2nd respondent as additional Government Kazi for Kavali Town and Kavali, Kaligiri, Bagole, Dagadarti, Jaladanki, Kondapuram and Alluru Mandals of SPSR Nellore District, for a period of three years vide GORt.No.218, dated 19.11.2019 without there being any requirement and without distributing the area of operation in between the petitioner and 2nd respondent as illegal, arbitrary, contrary to the provisions of Kazis Act, 1880 and against Articles 14, 21, 19(i)(g) of the Constitution of India and to consequently set aside the same.
2. W.P.No.14913 of 2020 is filed by Shaik Sayeed Ahemed - 2nd respondent in the above writ petition against the State and Dr.Mohammad Khaleel Ahmed - writ petitioner in the above writ petition, seeking to issue a writ of mandamus declaring the G.O.Ms.No.10, Minorities Welfare (Wakf-I) Department, dated 22.04.2003 issued by the 1st respondent as illegal, arbitrary, unjust and violative of principles of natural justice and to consequently set aside the same.
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3. The 2nd respondent in the first writ petition WP.No.445 of 2020 is the petitioner in WP.No.14913 of 2020 and the writ petitioner in WP.No.445 of 2020 is the 2nd respondent in WP.No.14913 of 2020.
4. Heard Sri B. Rama Krishna, learned counsel for the petitioner in WP.No.445 of 2020 and Sri S.A.Razack, learned counsel for the writ petitioner in WP.No.14913 of 2020. Also heard learned Government Pleader for Social Welfare appearing for the 1st respondent in both the writ petitions.
5. The facts and law involved in these writ petitions are one and the same. Hence, these two writ petitions are taken up for hearing together and are being disposed of by this common order.
6. The case of the petitioner in the first writ petition is this:
He was appointed as Government Kazi for Kavali and 11 other Mandals in Kavali division, excluding 6 mandals of the then Udayagiri Assembly Constituency to perform the marriages in Muslim community as per the provisions of the Kazis Act, 1880 [for short, 'the Act'] by the 1st respondent in the year 2003 vide GO.Ms.No.10 Minorities Welfare (Wakf-I) Department dated 22.04.2003. Since then, he has been performing his duties to the utmost satisfaction of all concerned persons without there being any complaint. While so, even though there is no requirement for the appointment of another Kazi in the petitioner's area, the 1st respondent 3 MGR,J WPs_445&14913-2020 appointed the 2nd respondent as additional Government Kazi for Kavali town and Kavali, Kaligiri, Bagole, Dagadarti, Jaladanki, Kondapuram and Allure Mandals of SPSR Nellore District, for a period of three years vide G.O.Rt.No.218, dated 19.11.2019, which is illegal and arbitrary. The petitioner was already appointed as a Government Kazi to the above Mandals on permanent basis in the year 2003 itself.
7. Per contra, the case of the petitioner in the latter writ petition is that he was appointed as additional Government Kazi for the local areas Kavali town and Kavali, Kaligiri, Bagole, Dagadarti, Jaladanki, Kondapuram and Alluru Mandals, after consulting the principal Muhammadan residents of such local area, after calling for reports from the concerned Tahsildars as to the necessity of appointing additional Kazi, after due inquiry with the Muhammadan residents of all eight local areas and after ascertaining the requirement of one more additional Kazi. The 2nd respondent does not possess any qualification and prevailed over the Government and managed to get appointment as Government Kazi to Kavali and 11 Mandals in Kavali Division vide GOMs.No.10, dated 22.04.2003 without any inquiry or without following procedure contemplated under the provisions of the Act. His appointment is in utter violation of the statutory procedure.
8. Sri B. Rama Krishna, learned counsel for the petitioner in the first writ petition, while reiterating the averments made in the writ petition, 4 MGR,J WPs_445&14913-2020 submits that the authorities ought to have seen that before appointing more than one Kazi, the Muslim population of that area/mandal/village and the area of operation of the existing Kazi has to be taken into consideration. If there is any justification for appointment of another Kazi, the area proposed to be distributed among the two Kazis should be categorically prescribed. But no such exercise appears to have been undertaken in the instant case. The petitioner's jurisdiction as Kazi was covered by 12 Mandals viz., Kavali, Jaladanki, Kaligir, Kondapuram, Bogolu, Alluru, VIdavaluru, Kodavaluru, Dagadarthi, Kovvuru, Buchireddypalem, Sangam. As a Kazi his duty is to perform all marriages in the above areas. While so, the 2nd respondent, on the recommendation of the Ex.MLA of Kavali Assembly Constituency, was appointed illegally for Kavali town, Kavali, Kaligiri, Bagole, Dagadarthi, Jaladanki, Kondapuram and Alluru, to which already the petitioner was appointed as Government Kazi on permanent basis way back in the year 2003. Government has to appoint a Kazi where there is no Kazi and decide the jurisdiction of the Kazi where he has to perform the duties as per the provisions of the Act. Government can resolve the jurisdiction of the Kazi at the time of first appointment of the Kazi only. Once Kazi is appointed the Government has no jurisdiction to change the jurisdiction or to appoint additional Kazi in the place of existing Kazi. As seen from the areas of distribution there is a overlapping insofar as the said Mandals are concerned, which is nothing but total non application of mind while 5 MGR,J WPs_445&14913-2020 distributing the areas. Explaining the same, the petitioner approached the authorities concerned but no action was taken till date. The areas of distribution is sine qua non before appointing additional Kazi. The Muslim population in other 11 Mandals of Kavali division is very low. The number of marriages being performed in Muslim community per year is also very low. The petitioner is highly qualified and doing lip service to the community. The authorities concerned utterly failed in application of mind and thereby deprived him of his livelihood. He has drawn the attention of this Court to the provision of Section 2 of the Kazis Act, 1880. He further submits that the petitioner was not put on notice before appointment of the 2nd respondent as Additional Kazi as he is the earlier Kazi of the local area. Only after the petitioner filing this writ petition, the 2nd respondent chosen to file the latter writ petition challenging the GO issued in the year 2003 with a long delay. In support of his contentions, he relied upon the decisions of this Court in WP.No.42582 of 2015 and 26197 of 2016.
9. On the other hand, Sri S.A. Razack, learned counsel for the petitioner in the later writ petition, while reiterating the averments made in the said writ petition and the counter filed in the first writ petition, submits that as per Section 2 of the Kazis At, there must be a request from a considerable number of Muhammadan residents for appointment of Government Kazi and the Government may, if it thinks fit, after consulting the principal Muhammadan residents of such local area, select a fit person and appoint 6 MGR,J WPs_445&14913-2020 him as Kazi. Before issuing the impugned GO appointing the 2nd respondent as Kazi, there is no such request from considerable number of Muhammadans. Therefore, the GO was issued in violation of the provision of Section 2 of the Act. The 2nd respondent made application for appointment as Government Kazi to the District Collector but not to the 1st respondent, who is the competent authority. In his application he has stated that he is qualified and there is no Kazi in that area. Fact remains that he is not having any qualification and there was already existing Kazi to that area namely Mohammed Azizullah by that time. The District Collector, without conducting any inquiry, without consulting principal Muhammadan and without noticing Jamath representations had simply recommended for the appointment of the 2nd respondent as Kazi. The impugned GO was issued without application of mind. The said GO reflects that not even a pretense is made of paying lip service to the requirement of the provisions of the Act and is neither any reflection of an opinion being formed by the Government as to the necessity of appointing him as Kazi nor any inquiry conducted with local Muhammadan nor any document relating to the qualification and the entire exercise was wholly motivated and in utter violation of the procedure prescribed under the Act. The petitioner possess all the qualifications and as such he made application dated 03.12.2015 to the Government for appointment as additional Kazi, pursuant to which the Government asked the District Minorities Welfare Officer and District 7 MGR,J WPs_445&14913-2020 Collector, SPSR Nellore to examine the matter in terms of Section 2 of the Kazi Act, and submit a detailed report along with other required information. Accordingly, the District Collector has called for an inquiry report from the Tahsildars of concerned Mandals. The Tahasildars have conducted detailed inquiry after consulting the principal Muhammadan and residents of such local areas and submitted their respective reports in favour of the petitioner for appointment as Government Kazi of the respective Mandal areas. Basing on such inquiry reports, the District Collector through his letter dated 25.07.2017 recommended for the appointment of the petitioner as Kazi. In the said letter dated 25.07.2017 the need for appointment of Kazi for the local areas of Kavali town and and Kavali, Kaligiri, Bagole, Dagadarti, Jaladanki, Kondapuram and Allure Mandals has been elaborately explained. Therefore, the petitioner was appointed as additional Kazi. When the petitioner's appointment was questioned by the 2nd respondent by filing WP.No.445 of 2020, the petitioner herein enquired and found the above mentioned illegality of the appointment of the 2nd respondent. Since the cause of action for this petitioner arose only on filing of the first writ petition, the 2nd respondent cannot contend that there is delay in filing the present writ petition. When the legality of the appointment of the petitioner is to be tested, the legality of appointment of the 2nd respondent also to be tested on same lines. In 8 MGR,J WPs_445&14913-2020 support of his contentions, he relied upon the decisions of this court in W.P.No.33583 of 2012 and WP.No.12044 of 2011.
10. Learned Government Pleader for Social Welfare appearing for the 1st respondent in both the writ petitions filed counters in both the writ petitions denying the allegations made against the 1st respondent. While reiterating the averments in the counters, he would contend that the 1st respondent appointed the petitioners in both the writ petitions as Kazi and additional Kazi respectively for the respective local areas duly following the procedure contemplated as per the provision of Section 2 of the Act. Insofar as the further allegations in the latter writ petition, that though there are several complaints against the writ petitioner in the first writ petition, no action was taken against him by the 1st respondent, there are no such complaints in their office. As the averments of the counter goes un- rebutted the contention of the counsel for the writ petitioners could not be countenanced.
11. In view of the above rival contentions, the point that arise for consideration of this Court is : Whether GO.Ms.No.10 dated 22.04.2003 and GORt.No.218 dated 19.11.2019 appointing the petitioners in both the writ petitions as Kazi and Additional Kazi respectively are valid or suffers from any legal infirmity.
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12. At the outset, since it is the contention of both the learned counsel for the petitioners that the appointment of each other is contrary to the provision of Section 2 of the Act, it is profitable to extract the said provision of law, which reads as under:
"2. Power to appoint Kazis for any local area: - Wherever it appears to the State Government that any considerable number of the Muhammadan 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...' The above provision of law contemplates that wherever it appears to the State Government that any considerable number of the Muhammadan resident in any local area desires that one or more kazi should be appointed for such local area, the State Government may 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. As could be seen from the material on record and the provision of Section 2 of the Act, in the considered view of this Court, the 1st respondent has appointed the writ petitioners in both the writ petitions as Kazi and Additional Kazi to the local areas, after following the procedure contemplated in Section 2 of the Act. Hence, the contentions of the learned counsel for the writ petitioners in the writ petitions could not be countenanced. Further contention of Sri S.A.Razack, learned counsel for the petitioner in the latter writ petition, that there are several complaints against the petitioner in the first writ 10 MGR,J WPs_445&14913-2020 petition about his misconduct as Kazi but the 1st respondent has not taken any action could not also be countenanced as the 1st respondent, in his counter, denied the same. Insofar as the contention of the petitioner in the first writ petition that he was not put on notice while appointing the 2nd respondent therein as Additional Kazi, in view of the language employed in the provision of Section 2 of the Act, there is no requirement to put the existing Kazi on notice and existing Kazi has no vested right to continue as a lone Kazi for that area. No notice is required to be issued to the existing kazi of the local area and no specified area could be mentioned in the notification within the local area for appointment of the Kazi. Hence, contra contentions holds no water and rejected.
13. Section 2 of the Act confers power upon the State Government to appoint one or more Kazi for any area when a considerable number of Muhammadan residents in any local area desire such appointment and any such appointment is to be done in consultation with the principal mohammadan residents of the local area. In the orders relied on by the writ petitioner in the first writ petition, this Court has suspended the appointment of additional kazi, in view of the fact that in the said cases there was prima facie violation of the provision of Section 2 of the Act. In the instant cases, a perusal of the material record reveals that the petitioners were appointed as Kazi and Additional Kazi, after duly following the procedure contemplated under the provision of Section 2 of the Act. No 11 MGR,J WPs_445&14913-2020 educational qualifications are prescribed for appointment as Kazi/Additional Kazi, in the Rules.
14. In the order relied upon by learned counsel for the petitioner in the latter writ petition, dated 27.08.2012 in WP.No.12044 of 2011, while dealing with vacate petition filed by the respondents therein, in similar circumstances, it was observed that the Act does not place any fetters on the Government in appointing more than one Kazi and the provisions do not vest any right in the existing kazi to claim exclusivity with respect to the area for which he was appointed.
15. Even if the 2nd respondent in the first writ petition was appointed as an Additional Kazi, the writ petitioner therein is not prevented from discharging functions of Kazi for those Mandals. It is open to the Muslims to approach either of them and even otherwise they can approach anyone of their choice other than the Kazi appointed by the Government to perform marriages. The appointment of Kazi is to authenticate performance of marriage by issue of a marriage certificate to the effect that he performed the marriage as per the personal law. A kazi validly appointed by the State Government in exercise of power under Section 2 of the Act alone is entitled to maintain records of performance of marriages in regular course of duties and functions. Hence, it cannot be said that appointment of the 2 nd 12 MGR,J WPs_445&14913-2020 respondent in the first writ petition as additional kazi is illegal and contrary to the provision of Section 2 of the Act.
16. A overall reading of the earlier decisions of the Apex Court in Citizens Welfare Organisation, Hyderabad represented by its General Secretary and others v. The Government of AP1; Quazi Mohd.Najmuddin Hussain v. State of AP and others2; VVA.Salahuddeen Aalim, District Kazi v. The Government of Tamil Nadu3; and Syed A Khadir Chistty v State of AP4 and the order of this Court dated 30.04.2011 in WA.No.70 of 2011 A.P State Wakf Board represented by its Chief Executive Officer, Hyderabad v. Hafeez Syed Saleem Basha and another, it could be easily deduced that existing Kazi has no exclusive right to operate as a Kazi in the area as per the provision of Section 2 of the Act. Hence, no notice is required to be issued to the existing Kazi before appointing another Kazi. No educational qualification is prescribed to be appointed as Kazi in consultation with the principal Muhammadans of the local area. There is no bar on the State Government to appoint more than one Kazi for the same local area. The Act does not recognize strict division of territorial area between two or more Kazis. None of the Kazi is prevented from discharging the function of Kazi in the local area for which he is appointed. 1
1989 SCC Online AP 295 2 2005 SCC Online AP 607 3 2016 3 L.W 647 4 2021 SCC Online AP 608 13 MGR,J WPs_445&14913-2020 Muhammadans of the local area could have choice of getting married by any of the Kazi on whom they have faith and confidence. Hence, contra contentions raised in the writ petitions are untenable.
17. For the aforesaid reasons, there is no merit in both the writ petitions.
18. Accordingly, both the Writ Petitions are dismissed. No costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________ M.GANGA RAO, J 04.11.2022 Vjl 14 MGR,J WPs_445&14913-2020 THE HON'BLE SRI JUSTICE M. GANGA RAO W.P.Nos.445 & 14913 of 2020 ...11.2022 Vjl