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Sayed Ahamedkoya Thangal v. Administrator
Factual and Procedural Background
The petitioner filed an original petition challenging Ext. P4, a notice issued by the Sub Divisional Officer (the 2nd respondent). Ext. P4 invited applications for appointment of a "Kazi" for the Juma Masjid at Andrott to fill the vacancy caused by the death of the then existing Kazi, Pattakal Pookkoya Thangal. Ext. P4 stated that the appointment was intended to be made in terms of the Kazis Act, 1880, and was issued on the instruction of the Administrator of the Union Territory of Lakshadweep. The notice indicated that applications would be considered on the basis of an interview by a committee including Scholars from the mainland.
The petitioner claimed he belongs to the deceased Kazi's tharvadu (Pattakal tharvadu), asserted that the office of Kazi is hereditary in his family and that he (having acted as naib/assistant) is entitled to succeed to the office. He sought a direction quashing Ext. P4 and restraining implementation of the appointment process envisaged by that notice.
The petition challenged Ext. P4 on statutory grounds (contending non-compliance with Section 2 of the Kazis Act, 1880), on the basis that Ext. P4 did not mention any local area, and on the claim of hereditary succession. Respondents (including the Additional 3rd respondent and the Administration) opposed the challenge, defending Ext. P4 as a lawful notice initiating an appointment process under the Act. The court ultimately dismissed the petition and refused to quash Ext. P4.
Legal Issues Presented
- Whether Ext. P4 (the notice inviting applications for appointment of a Kazi for the Juma Masjid at Andrott) is legally invalid for failing to specify a local area or to show that "a considerable number of the Muhammadans resident in any local area" desired appointment under Section 2 of the Kazis Act, 1880.
- Whether the inclusion of a committee of mainland Scholars to interview candidates (as mentioned in Ext. P4) is permissible under the Kazis Act or otherwise illegal.
- Whether the office of Kazi in this context is hereditary such that the petitioner (as a member of the deceased's tharvadu and acting as naib) automatically succeeds to the office, preventing the Administration from following the procedure in Ext. P4.
- Whether the Kazis Act, 1880 (and specifically Section 2) has been effectively extended and enforced in the Union Territory of Lakshadweep so as to permit appointment under the Act (including whether any separate notification for Section 2's enforcement was required).
Arguments of the Parties
Petitioner's Arguments
- The petitioner is a member of Pattakal tharvadu to which the deceased Kazi belonged and claims the position of Kazi is hereditary within that family; therefore he is entitled to function as Kazi on the death of the incumbent.
- Ext. P4 is defective because, under Section 2 of the Kazis Act, a Kazi can be appointed only to a "local area" and not to a specific Masjid; Ext. P4 does not specify any local area.
- Section 2 requires that a considerable number of Muhammadans resident in a local area must desire appointment of a Kazi; Ext. P4 does not show such desire.
- The deceased Kazi may not have been appointed under the Act (if first appointed before the Act was extended to Lakshadweep), which would make the current appointment the first under the Act and thus subject to strict compliance.
- Section 2 of the Kazis Act has not been enforced in Lakshadweep (contention that enforcement of Section 2 is missing).
- The inclusion of Scholars from the mainland in the interviewing committee is not provided for by the Act and is therefore improper.
- The petitioner has acted as naib and performed public functions; thus the office should devolve on him.
Respondents' / Administration's Arguments
- Ext. P4 is only a preliminary notice inviting applications; absence of a specific local area or express mention of desire by a considerable number of Muhammadans in the notice itself does not render the notice illegal—compliance with Section 2 can be examined at the appointment stage.
- The Additional 3rd respondent asserted that there was a request by local residents for appointment of a Kazi and that issuance of Ext. P4 presumes such desire having been expressed to the Administration.
- Consultation with principal Muhammadans of the local area is required under Section 2 only at the time of appointment; it is not required prior to issuing a notification like Ext. P4.
- Constituting a committee (including mainland Scholars) to interview candidates for suitability is not prohibited by the Act; such a committee serves to assess candidates and is distinct from the consultation required with principal Muhammadans.
- The Kazis Act, 1880 was extended to the Union Territory of Lakshadweep by the Laccadive, Minicoy and Amini Islands (Laws) No. 2 Regulation 1970, and that extension applies to the Act in its entirety without need for a separate notification for Section 2.
- Section 4 of the Kazis Act preserves a person's ability to discharge Kazi functions even if an appointment is made under the Act; thus ongoing performance of functions by the deceased or others does not preclude an appointment under the Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohammed Isak Saheb v. Najaruddin Shaman Saheb Mulla (AIR 1962 Mysore 253) | Supports the view that an office like that of Kazi, even if judicial or religious in function, cannot be regarded as hereditary; the office must be held by a person duly qualified by education, learning and training. | The court relied on this decision to reject the petitioner's claim that the Kazi office is hereditary and to support the proposition that succession to such an office cannot be enforced by civil courts as a hereditary right. |
| Sattappa Gurusattappa Huker v. Mahomed Saheb Appalal Kazi (AIR 1936 Bom. 227) | Explains that although offices like Kazi have tended to be held by the same family generation after generation in India, such practice cannot be elevated to a rule of Muslim law; successive holding by one family should be attributed to appointment by ruler or voluntary community choice. | The court quoted this passage to emphasize that hereditary holding of the Kazi office is not a rule of Muslim law and to reinforce the conclusion that appointment should be by government or local Muslim community, not by hereditary succession. |
Court's Reasoning and Analysis
The court proceeded by addressing each contention in turn and applying statutory and legal principles as expressed in the opinion:
- Nature of Ext. P4: The court treated Ext. P4 as a preliminary notice inviting applications for appointment. It held that omission of the specific "local area" or a statement of the "desire" of a considerable number of Muhammadans in the notice itself does not render the notice illegal. Whether Section 2's requirements have been complied with is to be examined at the appointment stage, not at the stage of issuing a mere notification.
- Committee of mainland Scholars: The court observed that while Section 2 does not contemplate such an interviewing committee, administrative authorities may appoint a committee to assess suitability when there are multiple applicants. Such a mechanism is not prohibited by the Act because consultation with principal Muhammadans is distinct from an assessment/interview mechanism; consultation arises after suitable candidates are selected.
- Applicability and enforcement of the Kazis Act in Lakshadweep: The court noted that the Kazis Act was extended to the Union Territory of Lakshadweep by the Laccadive, Minicoy and Amini Islands (Laws) No. 2 Regulation 1970. On this basis the court held that the Act in its entirety applies to Lakshadweep and no separate notification specifically enforcing Section 2 was necessary. It also reasoned that the Act cannot be applied piecemeal (either extended in full or not at all), so the contention that Section 2 alone had not been enforced was untenable.
- Effect of Section 4 of the Kazis Act: The court relied on Section 4 which states that nothing in the Act or any appointment under it shall be deemed to prevent any person discharging any of the functions of a Kazi. The court used this to show that whether the deceased had been appointed under the Act or not, that fact does not invalidate the Administration's power to appoint under the Act nor prevent existing persons from discharging Kazi functions.
- Hereditary claim: The court examined the petitioner's claim of hereditary right and his role as naib. It analysed the nature of the Kazi's office under Muslim law, citing learned authority (Mulla) and case law. The court held that the office is judicial in nature and not hereditary; Muslim law does not recognize a hereditary priestly class. It relied on the cited authorities to conclude that succession cannot be claimed as a matter of hereditary right enforceable by civil court.
- Conclusion from combined analysis: Even if the petitioner were to be regarded as entitled by internal community arrangement, that would not bar the Administration from making an appointment under the Kazis Act; Section 4 preserves existing functions but does not prevent lawful appointment under the Act. Considering these points, the court found no legal basis to quash Ext. P4.
Holding and Implications
DISMISSED.
Holding: The petition challenging Ext. P4 was dismissed; the court upheld the validity of Ext. P4 as a lawful notice initiating the appointment process under the Kazis Act, 1880.
Direct implications for the parties: Ext. P4 remains operative and the Administration may proceed with the appointment process (including interviewing candidates via the constituted committee and consulting principal Muhammadans at the appointment stage). The petitioner's claim of hereditary succession to the office of Kazi was rejected on legal grounds.
The opinion applies existing statutory provisions and cited authorities to the facts of the case; it does not purport to announce a novel judicial precedent beyond applying established principles to reject the hereditary claim and to uphold the administrative process reflected in Ext. P4.
1. Challenge in this original petition is against Ext. P4, a notice issued by the Sub Divisional Officer, the 2nd respondent. The petitioner seeks a direction not to give effect to Ext. P4 notice. By Ext. P4, the 2nd respondent has invited application from interested persons for appointment of ‘Kazi’ for Juma Masjid at Andrott in the vacancy caused due to the death of the then existing ‘Kazi’ namely one Pattakal Pookkoya Thangal. Exhibit P4 shows that appointment is intended in terms of the Kazis Act, 1880, and that such notice was issued upon instruction from the Administrator of the Union Territory of Lakshadweep. It is further stated that applications received will be considered on the basis of an interview by a committee consisting of Scholars from the main land.
2. The petitioner submits that he is a member of Pattakal tharvadu to which the deceased ‘Kazi’ belonged. He submits that the position of ‘Kazi’ is hereditary and only a member of the said family can function as a ‘Kazi’. Therefore, the petitioner is entitled to function in place of the deceased Kazi and therefore there is no reason to issue Ext. P4 notice.
3. It is contended that under Section 2 of the Kazis Act, a Kazi can be appointed only to any local area and not to a Masjid as mentioned in Ext. P4. Exhibit P4 does not mention any area to which the Kazi has to be appointed. It is also contended that a Kazi under the said Act can be appointed only when “any considerable number of the Muhammadans resident in any local area desire that one or more Kazis should be appointed for such local area”. In such case, “the principal Muhammadan residents of such local area” shall be consulted and one or more fit persons can be selected for appointment of Kazi for such area. Exhibit P4 does not conform to this, the petitioner contends.
4. Exhibit P4 is only a notice inviting application. Normally, a Juma Masjid is for a local area. Merely because no local area is mentioned, or anything about the desire of considerable number of Muhammadans is not mentioned in Ext. P4, it cannot be said to be illegal. Only at the time of appointment it need be-looked into whether requirement of Section 2 of the said Act had been complied with. It is contended by the Additional 3rd respondent that there was a request by the local residents for appointment of Kazi. Consultation with the principal Muhammadan residents need be made only at the time of appointment. It is true that Ext. P4 make mention of appointment by a Committee including the Scholars of the main land. Such a committee is not envisaged by sec. 2. But, if there are more contestant applicants, in order to consider the suitability, an administrative authority can always appoint a Committee to interview the candidates and to ascertain the suitability. That is not prohibited by the Act. There is no consultation with the interview committee. Consultation shall always be with principal Muhammadans of such local area. Occasion for consultation arise only after the interviewing committee selects suitable candidates. Therefore, there is nothing illegal in constituting the committee including the Scholars of the main land, to selected candidates.
5. The further contention is that the deceased Kazi was not one appointed under the Act. The Kazis Act was made applicable to the Union Territory of Lakshadweep as per Regulation No. 2/1970. It is not clear when the deceased Kazi was first appointed. If it is earlier than 1970 naturally, it cannot be under the Act as, the Act was not enforced at that time. In such case, the ensuing appointment will be the first appointment after the enforcement of the Act. That shall be necessarily as per the Act. Even if the deceased Kazi had been appointed after the enforcement of the Act, there is nothing illegal in appointing a Kazi in terms of the said Act. As per Section 4 of the Kazis Act, nothing contained in the Act or any appointment made under the Act shall be deemed to prevent any person discharging any of the functions of a Kazi. Thus, the deceased Kazi could have functioned even if another Kazi had been appointed under the Act. Therefore, whether the deceased Kazi was appointed under the Act or not, is not at all a relevant issue to decide the legality or otherwise of Ext. P4.
6. The next contention is that the wishes of the principal Muhammadans are not expressed so far. Desire shall come from considerable number of Muhammadans residents. The petitioner cannot say that the considerable number of Muhammadans had not expressed their desire. The additional 3rd respondent submits that there was such request to the Administration. When Administration has issued Ext. P4, naturally, it has to be presumed that there was desire expressed by considerable number of Muhammadans. The role of principal Muhammadans comes only at the time of consultation just prior to appointment. No consultation need be made before a notification like Ext. P4 is issued. If the petitioner is of the view that there had been no expression of desire by considerable number of Muhammadans for appointment of a Kazi under the Act, he is free to point out the same to the Adminisitrator. On the basis of such contention, Ext. P4 cannot be quashed.
7. It is further contended that there is no provision in the Act for involvement of Scholars from the main land. The Scholars are involved in the process not for consultation but for ascertaining the suitability for interviewing the candidates. As already mentioned above, it is not prohibited by the Act. The petitioner is in a mis-conception that the Scholars of the main land are involved in the process for the purpose of consultation. It is not so. They are involved in the process only for the purpose of ascertaining suitability of the candidates and it is only after that consultation with principal Muhammadans arises.
8. It is further contended that though by Regulation 2 of 1970 the Act has been extended to the Union Territory of Lakshadweep, Section 2 of the Kazi Act as such has not been enforced. Relevant portion of Section 2 reads as follows:
“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”.
9. The Kazis Act as such was not applicable to any area other than the territories administered by the Governor of Fort St. George in Council. But, any State Government is given power to extend the Act to the whole or any part of the territories under its administration. Union Territory of Lakshadweep being a centrally administered area, ‘the Laccidive, Minicoy and Amini Islands (Laws) No. 2 Regulation 1970’ was issued extending certain Acts including Kazis Act to that area. By reason of that, the Act in its entirity had been extended to the Union Territory of Lakshadweep as is presently known. Therefore, no separate notification for application or enforcement of Section 2 of the Act is necessary.
10. There is one more aspect. The Act does not provide for any piecemeal enforcement of any of the provisions of the Act. The Act shall either be extended in full or not extended at all. It cannot be extended in part, as per Section 1. On that basis also the contention that Section 2 had not been enforced in the Union Territory of Lakshadweep is not tenable.
11. The petitioner claims that the position of Kazi is hereditary to his family and that he had been acting as “naib” (assistant) of the deceased Kazi and therefore on his death the office devolves bn him. It is submitted that for several public functions he had been accepted as Kazi or to represent Kazi. This contention also cannot be accepted. The position of Kazi in Muslim Law is that of a judge or a judicial officer. Such a position cannot be stated to devolve hereditary. It shall be an appointment by the State, wherever it is recognised, for a particular area. Mulla also in “Principles of Muhammadan Law” accepts the position that Muhammadan Law does not regard the office of Kazi as hereditary and such claim cannot be accepted by the civil court. Appointment shall either be by Government or by some internal arrangement among the Muslims of each locality.
12. The decision reported in Mohammed Isak Saheb v. Najaruddin Shaman Saheb Mulla (AIR 1962 Mysore 253) also supports this view. An office like that of Kazi, the functions of which was judicial at its inception, but later turned to be holy religious, cannot be regarded as hereditary in nature. The Muslim Law does not recognise any hereditary priestly * class. It must be held by a person duly qualified by education, learning and training as well. The Court held:
“Tyabj, J. in Sattappa Gurusattappa Huker v. Mahomed Saheb Appalal Kazi, AIR 1936 Bom. 227, while clearly seating this principle of Muslim Law, no doubt adds that in India these offices have tended to be hereditary in the sense that members of the same family held the same office generation after generation. But, such practice cannot, in our opinion, be elevated to the status of a regular rule of Muslim law in derogation of the principle stated above. On the contrary, such successive holding of office by members of the same family must, in the eye of the Muslim law, be referred either to an appointment by the ruler or king or to a voluntary choice by the Jamat of a Mosque or the Muslim community of a village locality”.
13. Therefore, the petitioner cannot claim that the position of Kazi is hereditary in nature. Even if the petitioner's contention that he succeeds to the deceased Kazi, the position being hereditary in nature, is accepted, that will not prevent the Administration choosing a Kazi in terms of the Kazis Act. Appointment of Kazi made under the Act shall not be deemed to prevent any person discharging any of the functions of the Kazi as per Section 4 of the said Act. On its basis also, the petitioner cannot resist appointment in terms of Ext. P4.
14. Therefore challenge against Ext. P4 fails. O.P is dismissed.
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