Writ Petition No.3425 of 2008

23rd March, 2009

Petitioner Counsel: Shri. S. S. KAZI
Respondent Counsel: Shri. K. G. PATIL, Shri. J. R. SHAIKH, Shri. G. D. SHAIKH

Cases Cited:
Quazi Mohd. Najmuddin Hussain Vs. State of Andhra Pradesh, AIR 2005 A.P. 464 [Para 14]
Qazi Fasihuddin s/o. Isamuddin Vs. The State of Maharashtra, W.P. No.7781/2005, Dt.:-18/10/2006 [Para 15]
Sunita Devi Vs. State of Bihar, 2005 ALL MR (Cri) 511 (S.C.) =AIR 2005 S.C. 498 [Para 15]
State through S.P., New Delhi Vs. Ratan Lal Arora, 2004 ALL MR (Cri) 2215 (S.C.) =(2004)4 SCC 590 [Para 16]

JUDGMENT

Smt. NISHITA MHATRE, J.:- Rule. Rule made returnable forthwith by consent.

2. The petition raises the question as to whether the Wakf Board has the power to appoint Kazis.

3. The petitioner claims that he is practising as a Kazi in Parbhani. According to him, his ancestors were Kazis and today the petitioner is the chief Kazi with 11 Naib Kazis working under him in Parbhani. The petitioner claims that his only source of income is the Kazaat. The petitioner is aggrieved by the order of the Wakf Board dated 4/2/2005, appointing respondent no.3 as Qari-usn-Nikah (Naib Kazi) to perform marriages in the District of Parbhani. The Petitioner claims to have become aware of that order only in October, 2006. Thereafter, according to the petitioner he had questioned the Wakf Board i.e. respondent no.2, herein, regarding the appointment of respondent no.3 as Qari-usn-Nikah. The petitioner claims that his pleas to the Wakf Board, that the order in favour of respondent no.3 should be revoked, have fallen on deaf ears and hence this petition.

4. Mr. Kazi, the learned Advocate appearing on behalf of the petitioner submits that the petitioner is recognised as a Kazi by the Wakf Board and has been vested with the powers of the Kazi as it is a hereditary office. He submits that since the ancestors of the petitioner were Kazis, this office has devolved on the petitioner by succession. The learned Advocate further submits that the Wakf Board had no power to appoint any person as a Kazi or Qari-usn-Nikah to perform marriages, and therefore, the appointment of respondent no.3 should be quashed and set aside. The foundation of this argument is based on the submission that all Kazis are to be appointed under The Kazis Act,1880 (hereinafter referred to as the Kazis Act for the sake of brevity). Since the respondent no.3 was appointed by the Wakf Board and not by the State Government under the Kazis Act, the learned Advocate submitted that his appointment was invalid. To substantiate his arguments, the learned counsel submitted that it was only the petitioner who was entitled to perform marriages since forms were distributed to him by the Wakf Board for maintaining a record of all marriages performed in Parbhani District. The petitioner claims that these records have been maintained by him and his ancestors for generations and this by itself would, according to the petitioner, indicate that the office of the Kazi was a hereditary office and that nobody but he was entitled to practice as Kazi.

5. The first issue which arises is whether the petitioner has any locus to challenge the appointment of respondent no.3. It is only if the petitioner is able to demonstrate before this Court that he has an exclusive right to practice as Kazi, that the question of deciding the other issue, namely, whether the Wakf Board had a right to appoint Kazis, needs to be considered. We therefore, called upon the learned advocate for the petitioner to establish before us that the petitioner has locus to file the present petition and challenge the order of the Wakf Board.

6. The learned Advocate Mr.Kazi had submitted initially that only persons who are appointed under the Kazis Act, 1880 have the right to practice as Kazis and perform the functions of Kazis. In fact one of the grounds raised in the petition is that only the State Government is authorised to appoint Kazis under the Kazis Act and therefore, the appointment order issued in favour of respondent no.3 should be quashed. However, Mr. Kazi was unable to point out that the petitioner had been appointed under the Kazis Act. appointed under the Kazis Act. When confronted with this situation, he submitted that the Kazis Act was not applicable to the Marathwada region which fell within the Hyderabad State till 1956 and therefore, there was no question of producing any appointment order in favour of the petitioner under the Kazis Act.

7. This submission of the learned advocate cannot be accepted. The Kazis Act was made applicable to the Hyderabad State by a Notification dated 20/7/1954 issued in the Hyderabad Government Gazette of August 5th, 1954. Thus, in any event, the Kazis Act was made applicable in the Hyderabad State in 1954 itself. Admittedly, the petitioner became a Kazi in the year 1961 by which time the Act had been made applicable to the Parbhani region. In any event, after the reorganisation of the States in 1956, if the petitioner's submission is correct, that appointment of Kazis were liable to be made only under the Kazis Act, he ought to have a letter of Appointment in his favour. In our opinion, therefore, the petitioner has no locus to challenge the order passed in favour of respondent no.3 since he is unable to establish that he had an exclusive right or privilege to perform the functions of a Kazi in Parbhani.

8. In fact the petitioner herein and the petitioners in Writ Petition Nos.3372/08 and 3604/08 have all contended that each of them was the Chief Kazi in Parbhani with Naib Kazis working under them. If indeed the submission of Mr. Kazi was correct that only one Kazi could function in a particular area then this factual situation would not have been possible.

9. The other submission of Mr. Kazi, in order to establish that the petitioner had locus to maintain the present petition is that the petitioner possessed several documents indicating that he was practising as a Kazi. He submits that the very fact that the petitioner possessed records of marriages performed in the District of Parbhani would indicate that he had exclusive right to preside over such marriages and to practice as Kazi.

10. Mr. Shaikh, the learned advocate appearing for respondent no.2 submits that the office of the Kazi is not a hereditary title. He relies on Mulla's commentary on Mohammedan Law in support of his submission that the Kazis office is not hereditary under Mohammedan Law. He further submits that respondent no.3 had been appointed as Qari-usn-Nikah i.e. marriage officer to perform marriages. He points out that under Mohammedan Law, it is not necessary for a marriage to be solemnised by a Kazi. The learned Advocate has relied on various judgments in support of his submission, which we will presently advert to.

11. It would now be advantageous to consider the legislative history of the Kazis Act, 1880. [The Preamble of the Act of 1880 stipulates that whereas by the usage of the Mohammedan community in some parts of India the presence of Kazis appointed by the Government is required at the celebration of marriages and the performance of certain other rites and ceremonies, and it is therefore expedient that the Government should again be empowered to appoint persons to the office of Kazi]. The Statement of Objects and Reasons of the Act of 1880 indicates that before the advent of British Rule in India, the Kazis performed duties which were partly secular and partly religious in nature. These Kazis performed chiefly 4 functions :

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

(2) celebrating marriages and presiding at divorces;

(3) performing various rites and ceremonies;

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

After the introduction of British Rule, Judges and Magistrates appointed substituted the judicial role played by Kazis. Regulations were passed from time to time for the appointment of Kazi-Ul-Kazaat and Kazis by the State.

12. The British Government soon felt that there was no need for the State to dabble in the temporal affairs of Muslims and appoint Kazis since the first and last of above functions were performed by Officers of the State. The second and third functions which were purely ceremonial continued to be performed by Kazis. Accordingly, in 1864 by an enactment, 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 the Muslim population by the repeal of the regulations empowering the State to appoint Kazis. It is in these circumstances that the Kazis Act, 1880, was brought on to the Statute book. Accordingly, the statement of Objects and Reasons of the Kazis Act, 1880, makes it clear that the Act confers no legal rights or duties on Kazis. It has been enacted only in order to fulfill the needs of the Mohammedan community, continuing with the position and duties of the Kazis which were in vogue at that point of time. The extract from the report of the Select Committee indicates that it was urged by some authorities that the Act should define the duties of Kazis to be appointed under it and should give them exclusive right to perform those duties. However, while enacting the Kazis Act, it was considered that it would be impracticable to confer upon one or more persons a monopoly of the office since the original object was to provide for the Kazis appointment by Government for those of the Muslim community who desired to avail of the services of such a Kazi.

13. Section 1 of the Kazis Act deals with the applicability of the Act. Under Section 2 the State Government is vested with the power to appoint one or more Kazis when a considerable number of Mohammedans resident in any local area desire such appointment. This appointment is to be done in consultation with the Principal Mohammedan residents of the local area. The decision of the State Government in respect of such appointment is conclusive. The State Government is also vested with power to suspend or remove any Kazi appointed, who is guilty of misconduct in the execution of his office etc. Under Section 3 a Kazi who is appointed under the Act, is empowered to appoint one or more persons as his Naib Kazi to act in his place in all matters pertaining to his office in the local area. Suspension or removal of a Kazi under Section 2 results in the suspension or removal of his Naib Kazi as well. For the purposes of the present petition, the Provisions of Section 4 are illuminating. Section 4 of the Kazis Act reads as under :

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

(a) to confer any judicial or administrative powers on any Kazi or Naib Kazi appointed hereunder, or

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

(c) to prevent any person discharging any of the functions of a Kazi."

Thus Section 4 clearly states that nothing in the Act shall prevent any person from discharging any of the functions of a Kazi. That is to state, a Kazi does not have the exclusive right of discharging functions as Kazi, whether or not appointed under the Act of 1880. The Maharashtra Amendment to the Act makes it incumbent on every person who officiates as a Kazi at a marriage to give inspection and true copies of documents in his possession, which relate, to the marriage. On failure to perform such a duty, the Kazi would be liable to be disqualified for officiating as such. Thus, the provisions of the 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. In the present case, admittedly, the petitioner is not appointed as Kazi under the Kazis Act. He claimed to continue to hold office by inheritance. This concept is unheard of under Mohammedan Law as observed by the noted author, Mulla, in his treatise, The Principles of Mohammedan Law. In our opinion, therefore, the submission of the learned counsel for the petitioner is without merit and must be rejected.

14. In the case of Quazi Mohd. Najmuddin Hussain Vs. State of Andhra Pradesh and others reported in AIR 2005 Andhra Pradesh 464, a Division of the Andhra Pradesh High Court was considering the Provisions of the Kazis Act. It has held that the Act neither gives any power to any Kazi appointed under it, nor grants any privileges to such Kazis. It has also been held that the Act does not close the doors for Muslims to appoint anybody else, other than a Kazi appointed by the Government, for performing the functions or ceremonies which are performed by a Kazi appointed under the Act. The Division Bench has also noted that a marriage under Muslim Law is a contract where the only requirement is that persons entering into the marriage should consent to such marriage, in the presence of witnesses. We are in respectful agreement with this decision rendered by the Andhra Pradesh High Court.

15. Mr. Kazi has placed reliance on the judgment of the Division Bench of this Court in the case of Qazi Fasihuddin s/o. Isamuddin Vs. The State of Maharashtra and others in Writ Petition No.7781/2005, wherein the Division Bench by its order dated 18/10/2006 has set aside the appointment of a Kazi by the Wakf Board on the ground that there was no power with the Wakf Board to appoint such Kazis. He has also placed reliance on the judgment in the case of Anjuman-E-Quzzat (Hyderabad) Vs. Karnataka Board of Wakfs of the Karnataka High Court in Writ Petition No.21107/1996. The learned Single Judge of the Karnataka High Court (as he then was) has held after examining the provisions of the Wakfs Act, 1950 that it does not contain any provisions for controlling or administering the service conditions of the Kazis. The learned Judge has then held that the order of the Wakf Board reducing the marriage fee payable to Kazis was invalid. Mr. Shaikh, the learned advocate for respondent no.2 on the other hand has submitted that the judgment of the Division Bench of this Court in the case of Qazi Fasihuddin Isamuddin Vs. The State of Maharashtra and others, is per incuriam. He submits that this decision does not take into consideration Section 4(c) of the Kazis Act, 1880 and therefore, the reliance placed by Mr. Kazi on the judgment, would be of no avail to the petitioner in the present petition. Mr. Shaikh has brought to our notice the judgment in the case of Sunita Devi Vs. State of Bihar and another reported in AIR 2005 S.C. 498 : [2005 ALL MR (Cri) 511 (S.C.)], which elucidates the circumstances in which a judgment can be considered to be per incuriam.

16. We have considered these submissions of the learned counsel and we find as rightly urged by Mr. Shaikh, the Division Bench in the case of Qazi Fasihuddin has not considered the provisions of Section 4(c) of the Kazis Act, 1880. The provisions as we have already noted stipulates that notwithstanding anything contained in the Act and any appointment made under the Act, no person can be prevented from discharging any of the functions of a Kazi. In the case of Sunitadevi, the Apex Court has while reiterating its decision in the case of State through S.P., New Delhi Vs. Ratan Lal Arora, (2004)4 SCC 590 : [2004 ALL MR (Cri) 2215 (S.C.)], observed that when a decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incuriam. Had the provisions of Section 4(c) been brought to the notice of the Division Bench in all probabilities, the decision rendered by it, would have been different. The Division Bench has not considered it necessary to question the locus of the petitioner in the case of Qazi Fasihuddin. However, in our view, in the light of the provisions of the Kazis Act, 1880, unless the petitioner before us demonstrates that he has an exclusive right or privilege to perform the duties of the Kazi, the Writ Petition is not maintainable.

17. We have examined the other judgments cited at the bar and the provisions of the Kazis Act and we find that the petitioner does not have any exclusive right to officiate at marriage ceremonies or other ritual ceremonies. Therefore, the petitioner has no right to call in question the appointment of Respondent No.3 as a Kazi.

18. Petition dismissed. Rule discharged. No costs.

Petition dismissed.