JUDGMENT : (B. Prakash Rao, J.) This Writ Petition came up before us on a reference made by the learned Single Judge, Honourable Sri Justice C.V.Nagarjuna Reddy, to be consdiered by a Division Bench in relation to a decision reported in Citizens Welfare Organisation, Hyderabad, v. The Government of A.P., rep. by Secretary, Revenue (Wakf), Hyderabad 1989 (2) ALT 524 , of His Lordships Honourable Sri Justice K.Ramaswamy (as he then was), which relates to remuneration/fees of Naib Kazis. Heard Ms. Manjari.S.Ganu and Sri T.S.Praveen Kumar, learned counsel, appearing on behalf of the petitioners and Mr. M.A.K.Mukheed, learned Standing Counsel appearing on behalf of the Wakf Board and the learned Government Pleaders for Social Welfare and Minority Welfare appearing on behalf of the respondents. The brief account of the facts, which arise in these proceedings, are that the petitioners herein consisting in all about twenty four {24} persons claiming to be Naib Kazis, who have been appointed by the respective Kazis for the respective areas, filed this Writ Petition against the State and the A.P. Wakf Board, inter alia, seeking writ of Mandamus to declare G.O.Ms.No.276 dated 11.03.1986, G.O.Ms.No.3 Minorities Welfare (Wakf) Department, dated 17.12.1993 as well as memorandum No.2Sj 258/Wakf 2(A2)/97-5 dated 25.11.1997 and also G.O.Rt.No.273 Minorities Welfare (Wakf-2) Department, dated 25.11.1997, as illegal, arbitrary and ultra vires of the powers of the respondent under the Kazis Act, 1880 {“the Act” for brevity}, and consequently, to declare the same as unenforceable. The case of the petitioners, in short compass reference, is that Qazi Syed Abdullah Mohammad, the first petitioner herein, President of Naib Kazis called Anjuman-E.Nayebeen Quzzath, Zila Mohammednagar-WO-Bara Mahlath, Hyderabad A.P., 10-1-972 A.C.Guards Lines, Hyderabad, states that common petition is being filed since grievance is one and the same, where they sought to challenge the power of the respondents to fix and stipulate the Nikah fees of Kazi and Naib Kazi and the orders of the first respondent in the aforesaid proceedings. According to them, in Mohammedan Law, Kazi hold a considerable importance in the community and the presence of Kazi at the time of celebration of marriage, divorce and performance of certain other rites and ceremonies is quite essential, as required by each Mohammedan. Therefore, the Kazi performs certain religious and ceremonial duties. According to them, in Mohammedan Law, Kazi hold a considerable importance in the community and the presence of Kazi at the time of celebration of marriage, divorce and performance of certain other rites and ceremonies is quite essential, as required by each Mohammedan. Therefore, the Kazi performs certain religious and ceremonial duties. Referring to the objects under the said Act mentioned about the position as existed prior to the enforcement of the said Act, stated that the regulations were in force relating to Hindu and Mohammedan Law officers and to the office of the Kazi-ul-Kuzaat and of Kazi and such appointments were approved by the State. These regulations were repelled by Act XI of 1864 and therefore, subsequently, it was felt need for a comprehensive Legislation and the present Act of Kazis Act, 1880, was enacted. By taking queue from the provisions under the said Act, it is stated that all the duties and functions of Kazi are purely religious and ceremonial and there is no power statutorily conferred on the respondents herein to fix any fees. There is no dispute in regard to the extent of jurisdiction for each such Kazi and down below, the Naib Kazi appointed by the said Kazi. Therefore, in short, the case of the petitioners is to the effect that under the impugned proceedings the attempt on the part of the first respondent herein in fixing the fee is wholly ultra view and totally without jurisdiction. They further submitted that the Association of Naib Kazis submitted a representation on 29.07.1980 and thereafter, the second respondent-A.P. Wakf Board, as per the proceedings in Memo No.1186/Wakf/80-10 dated 26.11.1982, informed that in the absence of any provision, the Government has no jurisdiction to fix the fees for Naib Kazis. Yet the impugned proceedings have been issued in G.O.Ms.Nos.276 (Revenue) Wakf Department, dated 11.03.1986, fixing the fee of Kazi at Rs.25 per Nikah and Naib Kazi at Rs.20/- per Nikah and the conveyance at the rate of Re.1/- per km. Under further G.O.Ms.No.3 Minorities Welfare (Wakf) Department dated 17.12.1993, the Government issued further orders at the request of the petitioners’ Association enhancing the said fees for Kazis at Rs.100/- and for Naib Kazis at Rs.75/- and conveyance at the rate of Rs.25/- in cities and towns and in remote areas, actual bus fare plus Rs.20/-. Under further G.O.Ms.No.3 Minorities Welfare (Wakf) Department dated 17.12.1993, the Government issued further orders at the request of the petitioners’ Association enhancing the said fees for Kazis at Rs.100/- and for Naib Kazis at Rs.75/- and conveyance at the rate of Rs.25/- in cities and towns and in remote areas, actual bus fare plus Rs.20/-. Subsequently, on further representations by the petitioners’ association requesting the Government to enhance the existing fees from Rs.75/- to Rs.150/- and conveyance charges from Rs.25/- to Rs.50/-, the Government called for remarks from the Wakf Board and issued proceedings in Memo No.2S 258/Wakf-2/ (A2)/97-5 dated 25.11.1997 and G.O.Rt.No.273 Minorities Welfare (Wakf-2) Department dated 25.11.1997 rejecting request for enhancement of Nikah Fee and further instructions to the Kazis in collection of Nikah Fee. With this background, the case of the petitioners is that the question of either fixing or otherwise dealing with the quantum incidental thereto does not arise nor does the A.P. Wakf Board has no power, authority or any jurisdiction to meddle with the same. Hence, for these and other reasons as pointed out in the Writ Affidavit, the petitioners sought a declaration in the manner as stated above. When the matter came up for admission, this Court issued Rule Nisi on 20.02.1998 and interlocutory application seeking stay in WPMP.No.5638 of 1998 was rejected since the relief in the interlocutory application was substantially similar to the one prayed for in the main Writ Petition. On behalf of the first respondent-Government, counter affidavit has been filed. However, no counter affidavit was filed by the second respondent-A.P. Wakf Board. After hearing the learned counsel on either side, in view of the question involved as to the very competence of the Government in regard to fixation of fee and dealing therewith and especially in view of the decision of the learned Single Judge referred to above in Citizens Welfare Organisation, Hyderabad, v. The Government of A.P., rep. by Secretary, Revenue (Wakf), Hyderabad (1 supra), the judgment requires a reconsideration as under. “The scheme of the Act envisaged the power to appoint as well as the power to take disciplinary action against Naib Kazis to be exercised only by the Kazis. No role is conferred on the State Government qua Naib Kazis. by Secretary, Revenue (Wakf), Hyderabad (1 supra), the judgment requires a reconsideration as under. “The scheme of the Act envisaged the power to appoint as well as the power to take disciplinary action against Naib Kazis to be exercised only by the Kazis. No role is conferred on the State Government qua Naib Kazis. The learned Single Judge while accepting the contention of the learned counsel appearing for Naib Kazis that there is no express power conferred on the Government under Section 2 of the Act with regard to the fees of Naib Kazis and that no rule in this regard was made, he upheld the action of the Government by holding that the appointment includes all powers which in turn include the right to prescribe fee, salary or remuneration etc. the reasoning of the learned Single Judge is that as the Government is the appointing authority for Kazis who are in turn appointing Naib Kazis, it has got power and duty to prescribe the fee to be collected by Kazis and Naib Kazis. With due respect to the learned Single Judge, I am unable to agree with this reasoning. In the absence of the power to fix remuneration conferred by the statute on the State Government, such a power shall be deemed to have been vested in the Kazis who are the appointing authorities of Naib Kazis. Merely because Kazis are appointed by the State Government and the power to prescribe fees for Kazis is vested with it, the State Government cannot be said to be conferred with the power of prescribing fee to Naib Kazis as well. Merely because Kazis are appointed by the State Government and the power to prescribe fees for Kazis is vested with it, the State Government cannot be said to be conferred with the power of prescribing fee to Naib Kazis as well. I am prima facie of the view that in the absence of a specific statutory provision it is the Kazi who is the appointing authority as well as the disciplinary authority, who would have the power to fix remuneration of Naib Kazis.” Having heard the learned counsel for the petitioner and the learned Standing Counsel and the learned Government Pleaders appearing on behalf of both the respondents 1 and 2, the question, which emanates for decision is as to whether on the facts and circumstances and especially in view of the provisions of the Kazis Act, 1880 (Act No.12 of 1880) (which came into effect from 09.07.1880) repealing the earlier Act No.XI of 1864, the State Government or the A.P. Wakf Board, which is appointed under the provisions of Wakf Act (43 of 1995), the State Government or the A.P. Wakf Board has any power, authority or jurisdiction to fix the fee either for a Kazi or for a Naib Kazi, who has been appointed by the Kazis in respect of fee for any of the duties performed by them or meddle therewith. Before proceedings to consider the aforesaid aspect, which necessitates this Court to take note of the preamble of the said Act No.12 of 1880, which is an act of appointment of officers in the presence of Kazi, which reads as under. Before proceedings to consider the aforesaid aspect, which necessitates this Court to take note of the preamble of the said Act No.12 of 1880, which is an act of appointment of officers in the presence of Kazi, which reads as under. “Whereas by the preamble to Act No.XI 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 the 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:” From the above, it amply gives an indication as to the situation, which existed prior and thereafter, which need to be taken care of. Even otherwise, the very object stresses the intention and inexpediency for the appointment of Kazi-ul-Kuzzat and Naib Kazis thereunder and does not relate to any other duties for which he is supposed to deal with. Since the later decision of the very object reiterates the need, necessity and usage in he Mohammedan community, the presence of Kazis, who are appointed by the Government, at the celebration of marriages and performance of certain other rites and ceremonies. Therefore, on a bare look at the intendment and object, it is amply made clear that the directions are being sought communicated only in a situation, which is governing for the appointment but not otherwise. Coming to the other provisions of the Act, Section (1) pertains to short title and Section (2) contemplates the power to appoint Kazis for any local area, which reads as under. Coming to the other provisions of the Act, Section (1) pertains to short title and Section (2) contemplates the power to appoint Kazis for any local area, which reads as under. 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 he duties of the office. Similarly, Section (3) is in regard to appointment of Naib Kazi, which reads as under. 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. Section (4) clarifies to the effect that no judicial or administrative powers as such are being conferred on such Kazi, which reads as under. 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. Section (4) clarifies to the effect that no judicial or administrative powers as such are being conferred on such Kazi, which reads as under. 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. From this and other provisions of the Act in its entirety except the power exclusively for appointment. No other situation is taken care of nor contemplated much less takes care of. Curiously, except this bare few provisions, the normal provision, which is found on the other statute namely, the provisions for definitions is found absent and the expression ‘Kazi’ has remained undefined. Therefore, the Legislature has intentionally avoided in giving a definition either in full or part or otherwise. In this statutory backdrop, necessary conclusion, which follows, is that there exists no specific provision in the Act contemplating or regulating or empowering any power on the State or otherwise or any authority including the A.P. Wakf Board to take care of the fee for the Kazis or Naib Kazis nor even for any such incidental aspects for meddling or dealing with either by enhancement or by reduction in Outlines of Muhammadan Law Fourth Edition by Asaf A.A. Fyzee referring to the Kazis in page Nos.328 to 330 as under. Kazi – The word qadi is in India usually spelt ‘kazi’, and this misspelling is so common that it must now be given recognition as correct by popular approval (d). The Prophet and the early Caliphs decided many matters in person, but later since the time of the Umayyads came the qadis, who were judges charged with deciding all questions, civil as well as criminal, in accordance with the sacred law. The Prophet and the early Caliphs decided many matters in person, but later since the time of the Umayyads came the qadis, who were judges charged with deciding all questions, civil as well as criminal, in accordance with the sacred law. The qadi was therefore a ‘religious’ judge working under the guidance of the shariat. Since in Islam, religion and law are confluent streams, the qualifications necessary for appointment were that he should be a Muslim, of blameless life, and thoroughly learned in the law. Each district was required to have a competent qadi; and every competent person was bound to act as a qadi, if duly appointed. The procedure in his courts was laid down by the law, and his judgment was decisive, there being ordinarily no appeal from it. Although this ideal was kept in view, ‘the bad qadi’ is a well-known figure in he history of Islam. The great Imam Abu Hanifa refused to act as a qadi because of the moral difficulties of having to please the secular authority (e). An interesting sidelight on the character of the qadi, his duties, his behaviour and his independence, is afforded by one single example of the instructions given to him. Omar the Great, second Caliph of Islam, in his instructions to qadis, laid down that the qadi should first follow the principles of the Koran, and then the practice of the Prophet. Every person, high or low, rich or poor, should be treated with equality. The forms of procedure should be properly followed and proper evidence obtained before a decision was given. Lawful compromises should be encouraged. Even after judgment, if the qadi felt that an error had crept in, he should not stand on his dignity, but should review his judgment, for ‘it is better to retract than to persist in injustice’. Use your intelligence about matters that perplex you, to which neither law nor practice seems to apply; study the theory of analogy, then compare things, and adopt that judgment which is most pleasing to God and most in conformity with justice, so as far as you can see (f). If there were different schools (madhahib) of Muslims within the state, as far as possible the state appointed a qadi for each of such schools. If there were different schools (madhahib) of Muslims within the state, as far as possible the state appointed a qadi for each of such schools. An important point of distinction between the shariat courts in Muslim lands and the Indian courts is this: in Islamic countries it is the madhhab (school) of the qadi which determines the principles of law to be administered in his court; whereas in India, the religion and school of the litigant is taken into consideration. For instance, in Egypt, whatever the law of the parties, the Hanafi law will generally be applied to Muslims in personal matters; but in India the law of the parties-Hanafi, Shafii, Ithna “Ashari or Fatimid Ismaili - will be applicable. In addition to the general rules of law the textbooks contain chapters on the ‘Duties of the Qadi’ which remind us, in many instances, of the rules laid down by Chancery judges for the guidance of courts of Equity (g). It was this officer, the qadi of the texts of Islamic jurisprudence, which the Judicial Committee of the Privy Council had in view when they laid down that in India the place of the ‘Kazi” had been taken by the Civil Court (h). But in India the term ‘Kazi’ is also applied to certain petty religious officiants and the two classes of kazis must be sharply distinguished. There are enactments regulating their appointment and rights (i), and it has been held that the Muhammadan law does not recognize the office of kazi as hereditary (j). In Mulla Principles of Mahomedan Law Nineteenth Edition by M.Hidayatullah and Arshad Hidayatullah, Chapter XII Section 221 Kazi is defined as under. 221.Kazi.- The Mahomedan law does not regard the office of Kazi as hereditary (n). A claim to such a right, though supported by custom, is not one that can be recognized by a Civil Court (o). Similarly, the Privy Council in Mahomed Ismail v. Ahmed Moola (1916) 43 I.A. 127, 134, 43 Cal. 1085. 1100, 35 I.C. 30 held as under. “It has further been contended that under the mahomedan law the Court has no discretion to the matter [i.e., appointment of trustees of the mosque in question] and that it must give effect to therule laiddown by the founder in all matters relating to the appointment and succession of trustees or mutawallis. 1085. 1100, 35 I.C. 30 held as under. “It has further been contended that under the mahomedan law the Court has no discretion to the matter [i.e., appointment of trustees of the mosque in question] and that it must give effect to therule laiddown by the founder in all matters relating to the appointment and succession of trustees or mutawallis. Their Lordships cannot help thinking that the extreme proposition urged on behalf of the appellants in based on the misconception. The Mussalman law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British Indian system is taken by the Civil Court, has, in carrying the trust into execution, to give effect, so far as possible, to the expressed wishes of the founder. Wih respect, however, to public religious or charitable trusts, of which a public mosque is a common and well-known example, the Kazi’s discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management, which must be governed by circumstances, he has complete discretion. He may differ to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the best interests of the institution.” Again referring to Section 213, it is explained as under. Procedure – Although the District Judge, exercising his powers as a Kazi, has the jurisdiction on mere application to appoint a mutawalli when there is a vacancy, the removal of a mutawalli can only be effected by a suit properly instituted (x). In Mohd. Abbas Ali v. Wakf Board AIR 1979 AP 116 , the learned Single Judge of this Court, Honourable Sri Justice Ramachandra Rao (as he then was), referring to the provisions of the said Act, reiterated the objects as under. In Mohd. Abbas Ali v. Wakf Board AIR 1979 AP 116 , the learned Single Judge of this Court, Honourable Sri Justice Ramachandra Rao (as he then was), referring to the provisions of the said Act, reiterated the objects as under. The statement of Objects and reasons and the Preamble to the Kazis Act, clearly show that a kazi holds a position of considerable importance in Mohammedan community and that his presence at the celebration of marriages and at the performance of certain other rites and ceremonies, is considered essential by Mohammedans. Thus a kazi performs not only secular duties but also certain religious duties. Thereafter on the facts of that case, the learned Judge held as under. Under Section 2, it is the State Government that has to appoint a kazi after consulting the principal Muhammadan residents of such local areas. In the instant case, the State Government has not exercised the power to appoint a kazi. From the orders of the Wakf Board addressed to the petitioner it is clear that the petitioner was appointed only as akazi in-charge by the Wakf Board itself but he did not acquire any right under those orders to hold the post of kazi. By the impugned order the Wakf Board recognized the right of the respondent to be the Kazi, she being the only legal heir and sole successor to late Kazi and terminated the appointment of the petitioner as Naib Kazi, to which post he was appointed earlier by the Wakf Board until further orders. The petitioner, having been appointed as Naib Kazi until further orders by the Wakf Board, cannot claim to continue in the said post as of right and challenge the impugned order of the Board. In K.A.Wahab Siddiqui v. State AIR 1975 Karnataka 133, the learned Single Judge of Karnataka High Court, considering the provisions of Section of Kazis Act, 1880, on the facts of that case, held as under. Appointment or removal of Naib Kazi – Previous approval of State Government is not necessary. In the instant case, previous approval of the State Government was obtained in 1948, when the Act was not in force in the area in question, for the appointment of a Naib Kazi. But the rights and obligations of kazis are governed by the provisions of the Act, after 1.4.1951 in the local area in question. In the instant case, previous approval of the State Government was obtained in 1948, when the Act was not in force in the area in question, for the appointment of a Naib Kazi. But the rights and obligations of kazis are governed by the provisions of the Act, after 1.4.1951 in the local area in question. Therefore, removal of a person from the post of Naib Kazi without previous approval of the State Government was not illegal. Therefore, from what all referred to above and what all stated across on the powers and duties of the kazis, it amply follows that irrespective of the distinction, which can be drawn in regard to the various aspects including the appointment under aforesaid enactments, the power of appointment is totally taken away and vested with the Government. There is no challenge in these proceedings s to conferment of such power on the Government as per the appointment of Kazi. Hence, that question no longer need to be paid any attention. Coming to the bare decision under the statutes, it is apparent that the legislatures at all times and also across the judicial decisions, the Courts taken note of the fact that the appointment should no doubt vest with the Government, but not otherwise. This connotes a distinction, which has been recognized and established by the Apex Court and also this Court in respect of such officers between secular and religions aspects. The appointment is secular whereas he duties which require to be performed by the Kazis is totally non-secular. Having regard to the such religious nature of duties involved and the incidents, which flow there from, it cannot be said that the State or the Legislature could have taken care of or encroached into non-secular arena, especially the religious one. Therefore, prima facie, we are of the view that the duties and the fees, which will be levied and not to be levied is totally a matter, which the State has no concern nor any power or authority or jurisdiction. In Citizens Welfare Organisation, Hyderabad, v. The Government of A.P., rep. by Secretary, Revenue (Wakf), Hyderabad (1 supra), the learned Single Judge considered the provisions of sections 2 and 3 of the Act. In Citizens Welfare Organisation, Hyderabad, v. The Government of A.P., rep. by Secretary, Revenue (Wakf), Hyderabad (1 supra), the learned Single Judge considered the provisions of sections 2 and 3 of the Act. In the given case, the question hovered around as to whether there is any creation or recognition of any hereditary post of Kazi or appointment of any such Kazi for such vast unlimited local area. It was held that it is no so. While dealing with the said factual background, vis-à-vis, the question involved the observation of the learned Single Judge, it cannot be said that it is a conclusion on the question, which directly created it. There is no dispute to the fact even on a reading of the judgment in the aforesaid case, the issue involved in regard to fixation of fee or dealing there with and therefore, such question cannot, nor there could not have been any answer thereof. Thus, the observations, as rightly pointed out by the learned Single Judge, could not refer to not only the fixation of fee, but also in all such incidental aspects, which may arise or involve in respect of the religious duties of the Kazi or Naib Kazi. In the circumstances, we hold that the said judgment cannot be taken to be an authority on the proposition that the State Government has any power to deal with or fix or meddle with the fixation of fee for Kazi or Naib Kazi and to that extent we overrule the said decision. 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. In view of the aforesaid answer to the question, we direct the office to place the matter before the learned Single Judge.