THE HON'BLE THE CHIEF JUSTICE SHRI NISAR AHMAD KAKRU AND THE HON HON'BLE SRI WRIT APPEAL No.70 of 2011

30-04-2011

The A.P. State Wakf Board rep. by its Chief Executive Officer Razzak Manzil Haj House Nampally, Hyderabad

Hafiz Syed Saleem Basha and another

COUNSEL FOR APPELLANT: Mr. M.A.K. Mukheed

COUNSEL FOR RESPONDENT No.1: Mr. P. Veera Reddy

COUNSEL FOR RESPONDENT No.2: -

:JUDGMENT: (per the Hon'ble the Chief Justice Shri Nisar Ahmad Kakru)

1. A Circular issued by the Andhra Pradesh State Wakf Board (for short, "the Board") vide its No.9/Qazat/2000 dated 30-11-2002 determining the fee payable to the Kazis/Naib Kazis for performance of a marriage and requiring Kazis to obtain marriage booklets, shianamas and registers from the Inspector Auditors, A.P. State Wakf Board of the respective Districts for a sum of 510/- for ten marriages, came to be questioned by medium of a Writ Petition No.634 of 2005 and the Writ Petition succeeded on the strength of a Division Bench judgment of this Court in Qazi Syed Abdullah Mohammadi and others v. State of Andhra Pradesh1, the relevant paragraph whereof may be noticed.

"For the reasons mentioned above, and in view of the above conclusions as arrived at, we hold that under the provisions of the Act, no power is conferred either on the State Government or even on the A.P. Wakf Board to deal with, fix or meddle with or otherwise the fee structure in respect of duties or functions of Kazis or Naib Kazis."

2. Fixation of fee being in utter disregard to the above said judgment of the Division Bench, we record our concurrence with the impugned judgment of learned single Judge. While doing so, we would like to add to the reasoning that supports the view taken by the Division Bench of this Court.

3. The authoritative commentaries of Ameer Ali's Mohommedan Law, Fifth Edition, traces the genesis of the Kazis Act, as follows: "In the Hedaya, Book XX the principal powers and duties of Kazi have been stated at some length. Kazi was chiefly a Judicial Officer. He was appointed by the State and may be said to have corresponded to a Judge or Magistrate. In addition to his functions under the Muhammadan Law, the Kazi in this country, before the advent of British rule, appeared to have performed certain other duties, partly of a secular and partly of a religious nature. On the introduction of the British rule, Judges and Magistrate took the place of Kazis, and the Kazi in his judicial capacity disappeared, but the British Government, though no longer recognizing the judicial functions of the Kazi, did not abolish the office. By certain Regulations the appointment of Kazi-ul-Kuzzat and Kazis by the State was provided for, and the performance of their non-judicial duties was recognized by law. In 1864 by Act 11 of that year all the Regulations relating to the appointments of Kazis by Government and the duties to be discharged by them were repealed. Act 11 of 1864, however, raised a difficulty of a sort which was not anticipated at the time it was passed. To remove the difficulties being faced by Muslim Community by Kazis Bill was introduced in the Legislature."

4. While enacting the Kazis Act, 1880 (for short, 'the Act') the statement of objects and reasons therein clearly reflect that the said Act "confers no legal rights or duties on Kazis and simply in order to satisfy the wants of the Muhammadan community, provides for appointment of Kazis by Government, leaving the position and duties of Kazis, whatever they may be as they now are, and to prevent any misapprehension on this point, a saving clause has been added to the effect that nothing in the Bill confers any judicial or other powers on a kazi, or makes his presence necessary at any marriage or other ceremony at which his presence is not now necessary."

5. The Select Committee which had examined the Bill, preceeding the Kazis Act, also recorded that the "result of the Bill as it now stands will be that there will be a Kazi appointed by the Government for those who choose to avail themselves of the services, but that those who prefer to employ any other so called Kazi will be at liberty to do so."

6. It would be appropriate to reproduce the Kazis Act, 1880 (for short, 'the Act').

An Act for the appointment of persons to the office of Kazi. Whereas by the preamble to Act No.11 of 1864. An Act to repeal the law relating to the offices of Hindu and Muhammadan Law officers and to the offices of Kazi-ul-Kuzaat and of Kazi, and to abolish the former offices it was among other things declared that it was inexpedient that the appointment of the Kazi- ul-Kuzaat, or of City, Town or Pargana Kazis should be made by the Government, and by the same Act the enactments relating to the appointment by Government of the said officers were repealed; and whereas by the usage of the Muhammadan 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; It is hereby enacted as follows:

1. Short title.- This Act may be called The Kazis Act,1880;

Local extent.- It extends, in the first instance, only to the territories administered by the Governor of Fort St. George in Council. But the Government of any other State may, from time to time, by notification in the Official Gazette, extend it to the whole or any part of the territories under its administration.

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.

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.

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.

3. Naib Kazis.- Any Kazi appointed under this Act may appoint one or more persons as his naib or naibs to act in his place in all or any of the matters appertaining to his office throughout the whole or in any portion of the local area for which he is appointed, and may suspend or remove any naib so appointed.

When any Kazi is suspended or removed under section 2, his naib or naibs (if any) shall be deemed to be suspended or removed, as the case may be.

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."

7. The preamble, report of the Select Committee and the Objects of the Bill as well as the provisions of the Act quoted above make it manifest that it is entirely for the persons relevant to the ceremony to avail the services of the Kazi appointed by the Government or even the one who has no appointment to his credit to act as Kazi.

8. No doubt, the provisions aforementioned invest the Government with the power to appoint a Kazi and the Kazi in turn to appoint a Naib Kazi, but the Act neither confers any legal right on Kazi nor does it cast any duty on him. A glance at the provisions of the Act leaves no room for doubt that appointment of a Kazi/Naib Kazi is not an employment and to put it precisely it is a simple empowerment to perform marriages. The Act does not guarantee any clientele to a Kazi, and on the contrary it leaves to the discretion of the bride/bridegroom to choose anybody as their Kazi and from any place, immaterial whether he is appointed as a Kazi by the Government or not. It is not part of marriage to pay any fee to the Kazi and under the provisions of the Act, one who needs services of a Kazi is free to choose a Kazi of his choice and there is no mandate from the Act to pay him the fee. The learned Senior Counsel for the appellant has not joined the issue in respect of the legal position that the Act does not mandate payment of fee to a Kazi/Naib Kazi. Examining from any angle, fixation of fee of a Kazi by the Government is absolutely contrary to the provisions of the Act and without any power.

9. Coming to the challenge thrown to the Circular requiring the Kazi to purchase marriage booklets, we do not find any power traceable to the provisions of the Act, rightly so because the Act does not confer any legal right on him by such appointment and does not mandate performance of marriages by him alone. More so, as stated above, the Act leaves the parties free to make a choice of a Kazi, and it is only the nikkanama (the deed of nikka) which is recognized to be the only legally valid document. 10. The objects and reasons for enactment of Wakf Act 1995 as well as earlier Wakf Act, 1954 (now repealed by 1995 Act) were to set up Wakf Boards with power of superintendence and control over the management of individual wakfs. Thus it emerges that the Wakf Act was primarily concerned with administration of wakfs and the matters connected therewith or incidental thereto. Obviously, impugned Circular regulating Kazis and their functioning was beyond the scope of the Wakf Boards constituted under the Wakf Act and thereby the Circular of the Board mandating the Kazis to purchase marriage booklets, shianamas and registers from Inspector Auditors of A.P. State Wakf Board is clearly beyond the scope of the Wakf Board constituted under the Wakf Act. Thus, we rule that the impugned Circular insofar as it determines payment of fee of Kazi for performance of marriages and making it obligatory upon the Kazi to purchase marriage booklet from the Wakf Board is not sustainable in law.

11. The writ appeal is accordingly dismissed. No costs.