Point of Law: Power to appoint Kazis for any local area - Provisions of Sections 2 and 4 of Act held that object of Kazis Act was merely to appoint a person whose duty it would be to render certain services to such Mohammedans as may choose to resort to him for certain purposes and does not confer on him any exclusive right to perform functions which his office requires him to discharge.

JUDGMENT :

1. This matter has been heard through video conferencing.

2. We have heard Sri Mahabir Yadav for the petitioner; the learned Standing Counsel for the respondents 1 to 7; and have perused the record.

3. The petitioner seeks quashing of the order dated 20.6.2019 passed by Principal Secretary (Nyay Anubhag-3) (Appointments), Govt. of U.P., Lucknow rejecting the representation of the petitioner for appointment as a "Kazi" under Section 2 of the Kazis Act, 1880 (for short the Act).

4. Briefly stated the facts giving rise to this petition are as under: One Janab Sayed Sabir was earlier appointed as Kazi in Agra City. He died in the year 2013. After his death no City Kazi has been appointed by the State. The petitioner, by claiming that he had been performing duty as a Naib City Kazi, applied to the State Government seeking for his appointment as "Kazi". When no decision was taken on the application of the petitioner, a writ petition was filed which was disposed off by requiring the concerned Secretary in the Government to take decision on petitioner’s claim. When a decision was not taken, contempt application was filed. Now, by the impugned order, the claim of the petitioner for appointment as Kazi has been rejected.

5. A perusal of the impugned order reveals that the State Govt., upon consideration of the provisions of Section 2 of the Act, found that there was not considerable number of persons belonging to the Muslim Community of the locality expressing their support for appointment of the petitioner as "Kazi" inasmuch as recommendation for his appointment came from only six persons.

6. The learned counsel for the petitioner by inviting our attention to various recommendation letters as also to paragraph 6 of the writ petition wherein it is stated that Janab Sayed Sabir, the erstwhile “City Kazi”, had required the petitioner to perform as Naib City Kazi, submitted that rejection of petitioner’s claim for appointment as "Kazi" is arbitrary.

7. In reply, the stand of the respondents is that, under Section 2 of the Act, the State Government has complete discretion whether to appoint a person as Kazi or not, after drawing satisfaction that considerable number of Mohammedans residing in any local area desire that one or more Kazis be appointed for such local area. It is therefore the case of the respondents that once a decision has been taken upon finding that the support for appointment of the petitioner is not considerable, such decision is not justiciable.

8. Before we proceed to weigh the rival submissions, it would be useful to have a glimpse at the relevant provisions of the Act. Sections 2 and 4 of the Act are relevant to understand the true import of its provisions. They are thus extracted below:

“Section 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 Mohammedan 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.”

Section 4.— Nothing in the Act to confer judicial or administrative powers; or to render the presence o