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Andhra Pradesh High Court
Judges : K.RAMASWAMY
Citizens Welfare Organisation, Hyderabad - Appellant
Versus
Government Of A.P. - Respondent
Decided On : 06-09-89
KHAZIS ACT - ACT 12 OF 1880 - SEC. 2, 3, 4 - APPOINTMENT OF KHAZIS AND NAIB KHAZIS - POWER OF GOVERNMENT - INTERPRETATION OF "CONSIDERABLE NUMBER OF MOHAMMEDAN RESIDENTS" AND "LOCAL AREA" - PRESCRIPTION OF FEE FOR MARRIAGE - APPORTIONMENT BETWEEN KHAZI AND NAIB KHAZIS - VALIDITY - DISCRIMINATION - ARTICLE 14 OF THE CONSTITUTION.
Fact of the Case:
Writ petitions challenging the power of the Government to prescribe rates of fee for performance of marriage and ratio to be shared between Khazi and naib-Khazis. Petitioners contended that the appointments of Khazis and Naib Khazis were illegal as they were not made in accordance with the Khazis Act, 1880.
Finding of the Court:
The court held that the Government has the power to appoint Khazis and Naib Khazis under Sections 2 and 3 of the Act, respectively. The words "considerable number of Mohammedan residents" and "local area" are imprecise and vague and should be defined more precisely in the Act. The Government has the power to prescribe rates of fee for marriage to be collected by Khazi or Naib Khazi, but it cannot exceed the prescribed limit. The apportionment of the fee between Khazi and Naib Khazis is reasonable and remunerative. The prescription of fee or appointment thereof is not vitiated by any error of law and the Government has jurisdiction to prescribe the fee. The respondents, though not expressly appointed under the Act, have been recognized by the Government as Khazi/naib Khazts and may continue to perform their functions till further appointments are made.
Issues: 1. Whether the Government has the power to appoint Khazis and Naib Khazis under the Khazis Act, 1880? 2. Whether the words "considerable number of Mohammedan residents" and "local area" are imprecise and vague and should be defined more precisely in the Act? 3. Whether the Government has the power to prescribe rates of fee for marriage to be collected by Khazi or Naib Khazi? 4. Whether the apportionment of the fee between Khazi and Naib Khazis is reasonable and remunerative? 5. Whether the prescription of fee or appointment thereof is vitiated by any error of law and the Government has jurisdiction to prescribe the fee? 6. Whether the respondents, though not expressly appointed under the Act, have been recognized by the Government as Khazi/naib Khazts and may continue to perform their functions till further appointments are made?
Ratio Decidendi: 1. The power to appoint Khazis is provided under Section 2 of the Act, which empowers the State Government to appoint one or more fit persons as Khazis for a local area if it appears that a considerable number of Mohammedans resident in that area desire such an appointment. 2. The words "considerable number of Mohammedan residents" and "local area" are imprecise and vague and should be defined more precisely in the Act to avoid difficulties in implementation. 3. The Government has the power to prescribe rates of fee for marriage to be collected by Khazi or Naib Khazi under the implied powers of Section 2 of the Act, which includes the right to prescribe period, fee or salary, remuneration, etc. 4. The apportionment of the fee between Khazi and Naib Khazis is reasonable and remunerative. 5. The prescription of fee or appointment thereof is not vitiated by any error of law and the Government has jurisdiction to prescribe the fee. 6. The respondents, though not expressly appointed under the Act, have been recognized by the Government as Khazi/naib Khazts and may continue to perform their functions till further appointments are made.
Final Decision: The writ petitions were disposed of, and the Government was directed to make further appointments in accordance with the provisions of Section 2 of the Act.
( 1 ) BOTH the writ petitions are disposed of by a common order.
( 2 ) FIVE petitioners in Writ Petition No. 4949/86 and two petitioners writ Petition No. 2416/89 are prominent residents of the City of Hyderabad professing Islam religion. The first writ petition viv. , W. P. No. 4949/86 was filed challenging the power of the Government to prescribe rates of the fee for performance of marriage, and ratio to be shared between Khazi and naib-Khazis. [in Writ Petition No. 2416/89 a declaration by way of Mandamus is sought for to the effect that the State Government have no power or authority to create or recognise any hereditary or monopolistic post of Khazi, or, to appoint any Khazi for any vast or an unlimited or an unidentifiable local area without any demand from and without any consultation with local muslims under the Khazis Act (Act 12 of 1880), for short, "the act" and consequently to declare the appointments of Respondents 3 to 5 as illegal and that they are not hereditary Khazis.
( 3 ) THE controversy centres around the question of the power of the government to appoint Khazis under the Act. Long over years the respondents 1 to 3 were appointed as hereditary Khazis. The contention of Sri k. Pratap Reddy, learned counsel for the petitioners is that, unless there is a request made by way of a representation by a considerable number of mohammedans residing in any local area desiring to appoint one or more khazis, the Government is devoid of power to make such an appointment and that, therefore, the appointment of the respondents in this two writ petitions is without authority of law. The question, therefore, is what are the meanings of the words "considerable number of" and local area" unfortunately, this is more than a century old Act and the Legislature did not provide definition of the words "considerable number of " and "local area". But be it as it may, instead of approaching any stricto-sensu lexographic consideration, the words "considerable number of Mohammedan residents" and "local area" are to be read in the larger perspective so as to subserve the purpose of the Act. Power to appoint Khazis is provided under Section 2 of the Act which reads thus :"2. Power to appoint Khazis 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 Kbazis should be appointed for such local area, the State government may, if it thinks fit, after consulting the principal mohammadan 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 Khazi 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 Khazi 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. "
( 4 ) SECTION 3 of the Act gives power to appoint Naib Khazis by the khazi obviously appointed under Section 2 of the Act. Section 4 of the Act with a view to obviate the difficulties that may arise in implementation of the provisions of the Act and the ensuing consequences thereof, adumbrated exclusion of the jurisdiction from Khazis viz. , performance of judicial or administrative powers, etc. Clause (a) thereof takes away judicial and administrative powers of Khazi and Naib Khazi appointed under Sections 2 and 3 respectively. Clause (b) thereof declares that presence of Khazi or Naib Khazi is not necessary to celebrate any ma
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