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2024 DIGILAW 701 (TS)

Qazi Ahmed Masood Moinuddin v. State of Telangana

2024-09-09

NAGESH BHEEMAPAKA

body2024
ORDER : Nagesh Bheemapaka, J. Both the Writ Petitions question the vires of G.O.Ms.No. 9, MWD, dated 06.02.2023 of the 1st respondent – Sate of Telangana by which one Mohammed Sirajuddin was appointed as government Kazi for Sultan Bazar Zone, Hyderabad. Hence, they are being taken up together for consideration and disposal by way of a common order. WRIT PETITION No. 6137 OF 2023 2. Petitioner in this Writ Petition contends that his paternal uncle Mohammed Zaheeruddin was the hereditary Kazi of Qazaath Sultan Bazar appointed by the government vide G.O.Ms. No. 923/HOME (General-A) Department, dated 29.06.1977 for the area of Qazaath Sultan Bazar (Residency area). The functions of Kazi are to perform marriages, decide matrimonial issues, religious, secular duties etc. and functions in the area. The said Mohammed Zaheeruddin appointed petitioner as Naib Kazi. Due to ill-health, his uncle submitted Application dated 02.02.2009 before the 1st respondent to appoint petitioner as Kazi for the subject area since hepossesses all requisite qualifications i.e., Modern education B.Com as well as Qazaath examination conducted by Jamia Nizamia, a well known renowned Islamic University, Hyderabad in 1997 itself. However, in spite of representation dated 11.01.2017 before the 1st respondent and the one dated 02.02.2023 to the 2nd respondent, his case was not considered. Subsequently, he came to know that the 1st respondent issued the impugned GO. unilaterally appointing a non-local individual, R/o Asif Nagar as Kazi for Sultan Bazar zone without following the due process of law, in violation of Section 2 of the Kazi Act, 1880 (for short, ‘the Act’) on the basis of recommendation of MLA, Nampally Constituency in utter disregard to the orders passed by the Division Bench of this Court in Intezami Committee Mazid-E-Osmania v. A.P. State Waqf Board 1996(2) ALD 661 (D.B.). Petitioner contends further that as a Naib Kazi, he performed number of marriages in Sultan Bazar area during the period of his paternal uncle as Government Kazi and Mohammedans of Sultan Bazar area including the surrounding areas such as King Koti, Jam Bagh, etcetera are familiar to him. It is relevant to mention herein that all the Official records of marriages contain performance of his paternal uncle as Kazi and himself as Naib Kazi. He is not only qualified person but also in all respects the most suitable for the post of Government Kazi for Sultan Bazar Area, claims petitioner. 3. It is relevant to mention herein that all the Official records of marriages contain performance of his paternal uncle as Kazi and himself as Naib Kazi. He is not only qualified person but also in all respects the most suitable for the post of Government Kazi for Sultan Bazar Area, claims petitioner. 3. Learned counsel for petitioner Sri Shafath Ahmed Khan submits that as per Section 2 of the Act, appointment of Kazi shall emanate from the principal Mohammedan of the area who should forward their proposal to the 1st respondent, which, in turn, shall, if thinks fit for the proposed demand of appointment of Kazi in a particular area after consulting the principal Mohammadan of such local area, select one or more fit persons and appoint him or them as Khazi for such local area. However, in this case, the local MLA issued recommendation letter in favour of the 4th respondent, as is evident from para 3 of the report dated 24.11.2022 submitted by the 2nd respondent and the report dated 22.06.2022 of the 3rd respondent – Revenue Divisional Officer. According to the learned counsel, the check list of the 2nd respondent - District Collector that there is vacancy of Kazi in Sultan Bazar area is not correct but misleading. It is submitted that there are contingencies under which the Naib Kazi appointed under Section 3 of the Act ceases to function; they are 1) removal from the post by the government and 2) when suspended by the government, but the said two conditions are not applicable to the case of petitioner. Learned counsel further contends that petitioner temporarily visited Gulf country on business purpose, therefore, the information in the check list was false, which clearly reflects that it was prepared with an aim to appoint the 4th respondent as government kazi in the light of the recommendation letter i the MLA, Nampally. 4. The 4th respondent puts-forth his case in the counter as under: Appointment as Government Kazi is not an employment and petitioner cannot claim such appointment as a matter of right. Further, strictly as per Section 2 of the Act, the 2nd respondent - District Collector, Hyderabad, after consulting number of local Principal Mohammadans, residents of Sultan Bazar locality, found fit person for appointment as Government Kazi and the decision of the State Government shall be conclusive. Further, strictly as per Section 2 of the Act, the 2nd respondent - District Collector, Hyderabad, after consulting number of local Principal Mohammadans, residents of Sultan Bazar locality, found fit person for appointment as Government Kazi and the decision of the State Government shall be conclusive. It is stated that this Court had already determined the similar issue in Writ Petition No. 25243 of 2021, by order dated 31.03.2022 (M.D. Rafiyuddin v. State of Telangana) and the present Writ Petition is liable to be dismissed. The case of this respondent is after the death of Mohd. Zaheeruddin, petitioner cannot claim as legal right for his appointment as a Kazi for the same area and the moment Mohd. Zaheeruddin dies, petitioner’s Naib Kaziship ceases. 5. Learned counsel for the 4th respondent submits that the letter of the MLA neither clog nor impinge the government from following due process of law and the said letter was only a supporting letter and it is not at all utter disregard to the orders passed by this Court. It is also stated that the government - appointed Kazi for Sultan Bazar died on 13.10.2017, hence the government rightly shown in its list Government Kazi post as vacant for Sultan Bazar area. Further, petitioner was out of country on personal business purpose at the time of enquiry, hence the government cannot wait for his arrival for appointment as Kazi.. 6. Having perused the record, proceedings of the Revenue Divisional Officer dated 22.06.2022 and report of the District Collector dated 24.11.2022 demonstrate that three applicants were seeking appointment as government Kazi for Sulthan Bazr area, out of them, with regard to the Application of Sri Mohammed Sirajuddin, the Revenue Divisional Officer, Hyderabad Division submitted that the matter got enquired by the Tahsildar, Nampally Tahsil and reported that he was working in Qazaath Quila Mohammed Nagar, Hyderabad and Ranga Reddy Districts as Deputy Kazi, Asifnagar Area and performing marriages in the said area of Muslim community since 2008 till date and local mohammedans had expressed their satisfaction for his service and proposed to appoint him for Sultan Bazar Zone. In respect of the other two; 1) petitioner - Sri Ahmed Masood Moinuddin, it was reported that he was abroad and he would return India after three months, as such no further action in this regard for the present; and 2) as regards Sri Hafiz Mohammed Azmath, it was reported that he involved in sexual offence and a case was registered under POCSO Act, 2012 on the file of Kanchanbagh Police Station, hence, his case could not be considered. The certificate issued by Quazi Mohammed Zaheeruddin, Government Kazi dated 19.01.2022 was annexed to the counter-affidavit filed by the 4th respondent. Learned counsel for petitioner placed on record the judgment in Intezami Committee Mazid-E-Osmania’s case (supra) and submits that appointment of the 4th respondent as suggested by the Member of Legislative Assembly is not valid. At this juncture, it is relevant to refer to Section 2 of The Kazis Act, 1880. “2. Power to appoint Kazs 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 Ka’zi’s 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 Kazi’s 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.” 7. It may be noted that the procedure for appointment of Kazis, as envisaged under Section 2 extracted above, makes it clear that if the government thinks it fit, it can consult principal Muhammadan residents of the local area to enquire into suitability of a particular individual for the position of Kazi. Furthermore, if any question arises whether any person has rightly been appointed as Kazi or not, the decision thereof by the State Government shall be conclusive. When the provision under Section 2 empowers the State Government to consult local principal Muhammadan residents, there is, undoubtedly, an ingredient of consultation and obtaining opinion of principal Muhammadan residents of the locality with respect to suitability of the individual. When the provision under Section 2 empowers the State Government to consult local principal Muhammadan residents, there is, undoubtedly, an ingredient of consultation and obtaining opinion of principal Muhammadan residents of the locality with respect to suitability of the individual. Therefore, the recommendation of the local MLA though apparently supports the suitability of the present incumbent by way of attesting to his knowledge of rites and ceremonies for the purpose of carrying out Kazi duties, the very alleged recommendation itself cannot be said to have unduly weighed in favour of the incumbent, thereby, influencing the judgment of respondent authorities. 8. In the light of the same, the judgment relied on by the learned counsel, wherein the subject matter relates to appointment of members of Committee for declaring a property as wakf property, cannot be made applicable to the facts of the case on hand, as, in the present case, the role of consultation, taking opinion of principal muhammadan community of the locality is significant in assessing suitability of an individual for the position of Kazi. In view of the above discussion, it can be held that there is no infirmity in the impugned order passed by the 1st respondent. WRIT PETITION No. 6977 of 2023: 9. Petitioner in this Writ Petition claims to have worked as Naib Kazi under Sadar Qazi Mohammed Zaheeruddinfrom 1994 onwards till 2006 and performed the functions of Kazi for Sultan Bazar by virtue of General Power of Attorney dated 29.09.1994 issued by the said Zaheeruddin. It is stated that he also worked as Naib Kazi under Kazi Abdul Mahmood Qureshi of Yakutpura Division who is his elder brother from 2007 till date. When the representations dated 19.02.2022 and 17.03.2022 addressed to the 1st respondent were not considered, petitioner is stated to have filed Writ Petition No. 16586 of 2022 which was disposed of on 01.04.2022 directing him to make an Application to the 2nd respondent – District Collector for appointment as Naib Kazi within two weeks from the date of receipt of a copy of the said order and within two weeks thereafter, he shall consider and pass appropriate orders in accordance with law. However, the 1st respondent did not act on his Application dated 20.12.2022 and he came to know that one Mohammed Sirajuddin, arrayed as 3rd respondent was appointed as Sadar Kazi. 10. However, the 1st respondent did not act on his Application dated 20.12.2022 and he came to know that one Mohammed Sirajuddin, arrayed as 3rd respondent was appointed as Sadar Kazi. 10. Learned counsel for petitioner Sri K. Jamali submits that despite the order in Writ Petition No. 16586 of 2022, the Application of petitioner was not considered 11. Learned counsel for the 3rd respondent while denying the averments of petitioner, submits that petitioner has not filed the alleged Application dated 20.12.2022 to the 1st respondent or any official concerned, hence, the question of considering his case as Sadar Kazi does not arise. He further submits that the issue involved in this case was already dealt with in Writ Petition No. 25243 of 2021, by order dated 31.03.2022, hence, this Writ Petition is also liable to be dismissed in terms thereof. According to him, as per the 1880 Act, there is no provision, rules, regulations in the said Act that confers / delegates power for government-appointed Sadar Qazi to appoint any other person as General Power of Attorney for performing his duties on his behalf. 12. This Court in Writ Petition No. 25243 of 2021 held that ‘Further, from the checklist for appointment as Government Kazi enclosed to the said recommendation of the third respondent also it is evident that necessary consultation was already done, as required under Section 2 of the Kazis Act, 1880. Therefore, the main ground on which the present Writ Petition is filed is found to be not correct. Further, the appointment as Government Kazi is not an employment and no right is conferred upon the petitioner to claim such appointment as a matter of right. In addition to the same, the petitioner is already working as Government Kazi by virtue of the appointment made by the first respondent since the year 2004 and also working as in-charge Khazi in respect of Kothagudem Mandal since the year 2017 and there is no vested right much less legal or statutory right conferred on the petitioner to claim appointment as Government Kazi or to claim consideration of his application for appointment as Kazi. No such legal duty cast on any of the official respondents and as already observed, there is no legal right to the petitioner. The petitioner failed to demonstrate violation of any legal or fundamental rights much less violation of any statutory provision.’ 13. No such legal duty cast on any of the official respondents and as already observed, there is no legal right to the petitioner. The petitioner failed to demonstrate violation of any legal or fundamental rights much less violation of any statutory provision.’ 13. In this Writ Petition, petitioner stated that he worked as Naib Kazi under Qa zi Abdul Mahmood Qureshi of Yakurpura Divisino from 2007 onwards till date. There is no vested right much less legal or statutory right conferred on the petitioner to claim appointment as government Kazi or to claim consideration of his Application for appointment as Kazi. Petitioner failed to demonstrate violation of any legal or fundamental rights, hence, he is not entitled to the relief claimed in the Writ Petition, which, therefore, is liable to be dismissed. 14. Both the Writ Petitions are accordingly, dismissed. No costs. 15. Miscellaneous Applications, if any shall stand closed.