THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR W.A.No.1452 of 2005 JUDGMENT (Per Sri Justice Ghulam Mohammed) This appeal is filed aggrieved by the order of dismissal dated 13.07.2005, passed in W.P.No.21106 of 2004, filed by the appellant-petitioner questioning the orders passed by the first respondent vide G.O.Ms.Nos.23 and 24, Minorities Welfare (Wakfs-I) dated 02.11.2004, through which, he was removed from the post of Kazi of Wakf Board, Bodhan Division, Nizamabad District. 2. The brief facts are that the father of the appellant was the Kazi of Wakf Board, Bodhan Division, Nizamabad District, and after his demise, the Government appointed the appellant as Kazi vide memo dated 14.11.1996 and subsequently, as ‘Government Kazi’ vide G.O.Ms.No.39 dated 11.03.1998, he was discharging the duties. While so, on the complaint made by the third respondent on 18.06.2002, the appellant was served with a notice issued by the Enquiry Officer-District Revenue Officer. He submitted his explanation for the same. Having satisfied with the said explanation, the respondent authorities dropped further proceedings. Later, the third respondent filed W.P.No.15137 of 2003 before this Court seeking a direction to the Government to conduct enquiry against the appellant. The said writ petition was disposed of, leaving it open to the respondent authorities to consider the representations of the third respondent. Pursuant thereto, the second respondent-District Collector, Nizamabad, conducted enquiry and submitted to the Government the report, based on which, the first respondent issued a show cause notice to the appellant calling upon him as to why he should not be removed from the office of Kazi. The appellant submitted his explanation for the same. It is stated that the first respondent without considering his explanation, removed him from the post of ‘Kazi’ vide G.O.Ms.Nos.23 and 24 dated 02.11.2004. Feeling aggrieved by the same, the appellant filed W.P.No.21106 of 2004 before this Court. Through the impugned order, the learned Single Judge of this Court having held that the report of the second respondent clearly indicates that the appellant was not evincing any interest in protecting the properties of the Wakf Board, dismissed the said writ petition. Aggrieved by the same, the appellant filed the present appeal. 3. Heard the learned counsel for the appellant and the learned Government Pleader for Social Welfare appearing for respondent Nos.1 and 2 and the learned counsel for respondent No.3. 4. Learned counsel for the appellant contended that the learned single Judge has committed error in not considering the fact that mere leasing out the wakf property is not a ground to disentitle him from discharging the duties as Khazi and that since there is no violation of any of the provisions of Section 2 of the Kazis Act, 1880 (for short ‘the Act’), the removal order is unsustainable. Section 2 of the Act, 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 the duties of the office”. He further contended that the learned single Judge ought to have appreciated the fact that the appellant was neither served with the enquiry report of the second respondent nor was given an opportunity to lead the evidence with regard to the allegations made by the third respondent in the complaint. 5. On the other hand, learned Government Pleader appearing for respondent Nos.1 and 2, submitted that before conducting enquiry, the second respondent had issued a notice to the appellant, who in turn also submitted his explanation. He further submitted that after giving reasonable opportunity to him, the enquiry was conducted and the very enquiry report itself shows his participation in the enquiry. He further contended that the appellant had illegally leased out certain land belonging to the Wakf without protecting the Wakf properties and that based on the report of the second respondent, the appellant was removed from the post of Kazi. 6. Learned counsel for the third respondent contended that the father of the appellant as well as the appellant have illegally disposed of certain wakf properties in favour of third parties without obtaining prior permission from the Wakf Board and misused the office of the Government Kazi and that the learned single Judge was justified in dismissing the writ petition. He also contended that the appellant sold Acs.7.00 and odd in favour of one Birkur Bhoomaiah, who filed W.P.No.17300 of 2006, which is pending before this Court. 7. We have perused the Statement of Objects and Reasons of Kazis Act , 1880 (Act XII of 1880), which reads as under; “Under the Muhammadan Law the Kazi was chiefly a Judicial Officer. His principal powers and duties are stated at some length in the Hedaya, Book XX. He was appointed by the State, and may be said to have corresponded to our Judge or Magistrate. In addition, however, to his functions under the Muhammadan Law, the Kazi in this country, before the advent of British rule, appears to have performed certain other duties, partly of a secular and partly of a religious nature. The principle of these seems to have been preparing attesting and registering deeds of transfer of property, celebrating marriages and performing other rites and ceremonies. It is not apparent that any of these duties were incumbent on the Kazi as such. It is probable that the customary performance of them by him arose rather from his being a public functionary and one known by official position to be acquainted with the law, than from his having, as Kazi, a greater claim to perform them than any one else. Such was the position of the Kazi in this country under Native Government. On the introduction of the British rule, Judges and Magistrates took the place of Kazis, and the Kazi in his judicial capacity disappeared; but the British Government, though no longer recognizing the judicial functions of the Kazi, did not abolish the office. By certain Regulations passed from time to time, the appointment of Kazi-ul-Kuzaat and Kazis by the State was provided for, and the performance of their non-judicial duties was recognized by law. In the case of Bengal, indeed, certain additional duties were imposed on them. The duties of the Kazi under these Regulations comprised some or all of the following, viz.:- (1) preparing and attesting deeds of transfer and other law- papers; (2) celebrating marriages and presiding at divorces; (3) performing various rites and ceremonies; (4) superintending the sale of distrained property and paying charitable and other pensions and allowances. In the course of subsequent legislation, the first and last of the above duties devolved on officers specially appointed for the purpose, and there remained nothing to be performed by the Kazi but the second and third, which were purely ceremonial. Under these circumstances it appeared no longer necessary that the Government should appoint these officers. Accordingly, in 1864, Act 11 of that year, all the Regulations relating to the appointment of Kazis by Government and the duties to be discharged by them were repealed, but in order that it might be clear that no interference with the ceremonial functions of these officers was intended, a section was added to that Act as follows:- “:Nothing contained in this Act shall be construed so as to prevent a Kazi-ul-Kuzzat or other Kazi from performing, when required to do so, any duties or ceremonies prescribed by the Muhammadan law (see section 2 of Act 11 of 1864) Certain of his duties having thus survived the passing of Act 11 of 1864, that Kazi is still a functionary of considerable importance in the Muhammadan community. What was originally in some sense an accidental adjunct of his judicial office has become his principal and only duty, and in some parts of the country at least, the presence of a Kazi at certain rites and ceremonies appears now to be considered by Muhammadans essential from their point of view. A perusal of Section 2 of the Act clearly postulates that one of the duties assigned to the Kazi is to perform marriages and presiding at divorces, and in that context, the appellant did not commit any misconduct. As per the said Act, the State Government, 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. But, nonetheless, the main allegation of removing the appellant from the post of Kazi was that he leased out certain wakf properties to the third parties without prior sanction of the Wakf Board. Leasing out of certain wakf properties does not come within the ambit of Section 2 of the Act and the learned single Judge of this Court ought to have appreciated the same. Therefore, we are of the considered view that appellant is not found guilty of any misconduct as per Section 2 of the Act and the impugned order is liable to set aside. Accordingly, the Writ Appeal is allowed, setting aside the impugned order. No order as to costs. ______________________ GHULAM MOHAMMED, J _________________ SANJAY KUMAR, J Date:17.08.2011 sj