Heard learned counsel for the petitioners, Sri Yogish Saxena and Sri Ashok Khare, learned Senior Counsel for the respondent No. 4 and the learned Standing Counsel for the respondent Nos. 1, 2 and 3. Supplementary affidavit filed today is taken on record.
The petitioner questions the legality of the order passed by the prescribed authority dated 3rd of October, 2012 under the provisions of Section 25 of the Societies Registration Act, 1860 whereby he has declared the respondent no. 4 to be a valid committee with Kuldeep Gangwar as the validly elected Manager of the Society.
Sri Yogish Saxena contends that writ petitions are not being accepted by the Registry on account of annexures being in Hindi filed alongwith the writ petitions. This issue has already been dealt with by this Court in writ petition no. 54488 of 2012 Smt. Rajeshwari Vs. State of U.P. & others, and the order dated 16.10.2012 passed therein will apply on the facts of the present case.
Apart from this, the Court would like to put on record that the genesis of such disputes with regard to the applicability of the vernacular language in court proceedings has been engaging the attention of this Court not only as observed in the order passed by me in Smt. Rajeshwari's case (supra) yesterday, but also in relation to the accessibility of Hindi language on a national level. Article 351 of the Constitution of India reads as under:-
351. Directive for development of the Hindi language. - It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages."
The aforesaid issue was raised on several occasions and in the case of Madhu Limaye and another Vs. Ved Murti and others reported in AIR 1971 SC Pg.2608 an Intervention application was filed by one Mr. Raj Narain contending that he should be allowed to address the apex court in his vernacular language Hindi. The Supreme Court under its rules and keeping in view the provisions of Article 348 of the Constitution of India offered three alternatives to the intervenor namely that he can himself argue in English or his counsel may argue his case in English or he can file written arguments in English. Since the intervenor failed to abide by the offers of the apex court, his intervention application was accordingly rejected. Suffice it to say that there was a provision in relation to the court language of the apex court.
So far as the States are concerned sub-Article (2) of Article 348 of the Constitution of India clearly empowers the State Government to issue notifications in this regard. This issue has already been discussed by me in the order passed yesterday in the case of Smt. Rajeshwari (supra) but the Court has also been able to lay its hand on the full bench judgment of the Bombay High Court in in writ petition no. 6597 of 2007 Vinayak Hari Kulkarni Vs. State of Maharashtra and others, and Thane Bar Association, Thane and another Vs. State of Maharashtra decided on 7.5.2010 that stands reported in 2010 (4) All MR 355 = 2010 (4) MAH.L.J. 868 which was a dispute rendered on a reference made by a division bench on account of a rule under the Bombay High Court Rules providing for the acceptance of writ petitions with annexures in vernacular language Marathi. The said rule was struck down by a division bench and therefore the occasion for reference arose before the Full Bench. The majority opinion of two Judges of the full bench found that not entertaining a writ petition in Marathi would be too harsh for the litigants of Maharashtra and they opined as herein under:-
25. Notwithstanding the above observations, it may not be difficult to explore some alternative mechanism at the institutional level administratively. The Hon'ble Chief Justice and all other Hon'ble Judges may be requested to address to the enormous difficulties that the litigants are likely to face before all the Benches of this Court in the State of Maharashtra and with the cherished goal of providing easy access to the justice delivery system at affordable costs, in mind. There have been number of instances where the litigants and even the advocates appearing for the parties are allowed to address in Marathi or the Marathi documents/orders impugned have been explained by one Judge to another while sharing the Bench. At times, we have noticed that the original Marathi copies of the impugned orders are more reliable than their English translated versions. It is ultimately the urge to do justice, that matters and not the semantic technicalities. We cannot, as the judges committed to our adjudicatory role, allow ourselves to be arrested in the cobweb of these technicalities. At the same time, the Bar and the Bench must join hands in exploring an alternative mechanism in place of Rule 2(i) in Chapter XVII of the Appellate Side Rules. Refusing to accept the petition for registration solely on the ground that the English translation of the impugned order in Marathi has not been annexed to the petition will be too harsh an action and resulting in denial of the very entry and access to seek justice. What would happen if the Governor of Maharashtra invokes his powers under Article 348(2), with the previous consent of the President of India, in the near future? All the Benches of this High Court, in the State of Maharashtra shall have to adopt the proceedings in Marathi in that eventuality. It is, therefore, for all of us to address to these serious and staring issues as early as possible, rather than merely asking the petitioners and litigants to approach the appellate forum. It cannot be said that the Full House does not have the necessary powers to find out an administrative mechanism, even in the absence of Rule 2(i) of the Appellate side Rules, so as to allow the registration of the Writ Petitions with the impugned order, GR or Rule copy being in Marathi language and to leave further choice to the Bench concerned to issue directions to file the English translation, before granting any relief to the petitioner.
The third Hon'ble Judge partly deferred with the said view and went further to approve of the reasoning of the division bench judgment of the Allahabad High Court in the case of Prabandhak Samiti and another Vs. Zila Vidyalaya Nirikshak, Allahabad and others reported in AIR 1977 Allahabad Pg. 164. The learned Judge after traversing the entire constitutional provisions, the Bombay High Court Rules came to the conclusion that documents in Marathi deserve to be accepted in the following words:-
72] In Nadgauda's case with respect, the relevant provisions of the Constitution have not been adverted to. The Division Bench also did not notice the presence of identical provisions in the same Rules. Further, the attention of the Division Bench was not invited to the fact that Article 348 falls under Chapter II of Part XVII of the Constitution of India which is entitled as "official language". Chapter I of the same deals with language of the Union and in it sub-article 343 appears which states that the official language of the Union shall be Hindi in Devnagari script. Notwithstanding anything contained in Article 343(1) for a period of fifteen years from the commencement of this Constitution, English language shall be continued to be used for all official purposes of the Union, for which it was being used immediately before such commencement. The proviso to Article 343(2) states that the President may during the said period of 15 years by an order authorise use of Hindi language in addition to English language. Thereafter, Articles 343 and 344 appear in the same chapter. In a decision (Union of India Vs. Murasoli Maran), reported in A.I.R. 1977 S.C. 225, the Supreme Court held that these articles deal with the process of transition to Hindi for all official purposes of Union. The ultimate aim is provided in Article 351 viz., spread and development of Hindi language and enrichment of composite culture of India. [Article 344(6)]. (See paras 30, 31 to 36 of this decision).
73] Then comes chapter II which deals with "Regional language". Article 345 states that subject to the provisions of Article 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as a language to be used for all or any of the official purposes of that State. The proviso to Article 345 states that until the Legislature of the State otherwise provides by law, English language shall be continued to be used for those official purposes within the state for which it was being used immediately before the commencement of the Constitution. Article 346 and 347 speak of official language for communication between one State and another or between State and the Union. In this Article also there is no compulsion and Hindi language could become the official language for communication between States.
74] Chapter III which contains Article 348 sub-article 1, sub-clause (a) and (b), at the same time contains sub-article 2 which enables the Government of the State, with previous consent of the President, to authorise use of Hindi language or any other language used for any official purpose of the State in proceedings in the High Court having its principal seat in that State, provided that nothing in Article 348(2) shall apply to any judgement, decree or order passed or made by such high Court. Therefore, it is not as if there is compulsion that the proceedings ought to be in English language and no departure can be made therefrom in future. A departure can be made insofar as proceedings in High Courts and use of English language can be discontinued after compliance with Article 348(2). If such is the wording of the Article itself, then, one fails to understand as to how proviso below Rule 2(i) is unconstitutional and violative of Article 348(1) (a) of the Constitution.
75] Even in the decision of the Supreme Court to which reference is made in Nadgauda's case all that has been held is that pleadings or arguments in the Supreme Court in Hindi or any other language is not permissible. (See A.I.R. 1971 S.C. 2608 - Madhu Limaye Vs. Ved Murthi). Therein, the intervenor insisted on arguing in Hindi by stating that he does not know English. The Court gave several alternatives to the intervenor but he did not avail of the suggestions and alternatives given to him. It is in such circumstances that the intervention was cancelled. With deepest respect and begging to differ, how this judgement lays down that there cannot be any presentation or if presented non acceptance by the High Court of a writ petition under Article 226 of the Constitution of India, which is in English language but having a Marathi annexure with it, is not clear to me at all. The majority opinion rightly does not, therefore, uphold the correctness of the view expressed in Nadgauda's case.
76] In A.I.R. 1977 Allahabad 164 (Prabhankhak Samiti and Anr. Vs. Zila Vidyalaya Nirikshak Allahabad and Ors.), the Allahabad High Court held that once Government issues notification under Article 348(2), an individual acquires legal right to use the language prescribed by the notification for writing petition under Article 226 of the Constitution of India. In such circumstances, I am of the opinion that judgement in Nadgauda's case does not lay down the correct position.
77] Therefore, I proceed to answer the question No.1 by holding that the said judgement insofar as it strikes down the proviso is required to be overruled. I am supported in this conclusion by the very process of reasoning by which the Division Bench proceeded in Nadgauda's case. Chapter XVII of the A.S.Rules and particularly Rule 2(i) which is entitled "Accompaniments".
78] Now, merely striking down the proviso is not enough because the substantive rule permits furnishing of typed copies of translation in English language of all documents which are not in English language. Accompaniments to the petition need not necessarily be in English language and documents other than in English language can be filed, provided their translations are furnished. The decision in Vinayak's case takes note of the fact that Nadgauda's case does not declare Rule 2(i) of Chapter XVII of A.S. Rules to be ultra vires Article 348(1) of the Constitution but only strikes down the proviso by declaring it as ultra vires this Article. Once the proviso alone is declared to be ultra vires and not the substantive Rule, then, all the more the conclusion reached cannot be sustained."
Applying the reasoning of the Bombay High Court referred to hereinabove, this Court finds itself in full agreement with the ratio quoted above and therefore over rules the objections of the Registry of the High Court whereby it has proposed not to accept writ petitions with annexures in Hindi.
At this juncture, it will be appropriate to reiterate the constitutional mandate as provided for under Article 351 of the Constitution of India quoted hereinabove which has been interpreted by the Supreme Court in two judgements namely Santosh Kumar and others Vs. Secretary, Ministry of Human Resources Development and another reported in (1994) 6 SCC 579. While emphasising the importance of the language of Sanskrit which is the mother language of Hindi, the apex court also further went on to hold that from what has been stated in the judgment, they entertained no doubt about teaching of Sanskrit along as an elective subject so as to militate against secularism. Further the Court held that while dealing with the duty of the Union, framers of the constitution had in mind the necessity of the spread of Hindi as a national language in order to protect and contain the cultural heritage of the entire country under a common umbrella. The aforesaid judgment needless to say has again been approved by the apex court itself in the case of Ms. Aruna Roy and others Vs. Union of India and others reported in (2002) 7 SCC 368.
The gamut of facts as discussed hereinabove, therefore, would leave no room for doubt that so far as the Allahabad High Court is concerned, the use of Annexures in Hindi is not prohibited by law. This Court can put on record that under Section 7 of the Official Languages Act, four States in the Union of India have adopted Hindi as the State Language and accordingly have issued notifications under Sub-Article (2) of Article 348 of the Constitution of India namely, the State of Rajasthan, Uttar Pradesh, Bihar and State of Madhya Pradesh.
In order to avoid any multiplicity and there being no contrary view brought to the notice of the court, it would be appropriate that the full bench judgment of the Bombay High Court is placed on record of this case for the Registry to enable it to follow this decision and proceed in terms of the view expressed in Smt. Rajeshwari's case (supra).
The Registrar General is therefore directed to retain an appropriate copy of the said judgment of the Bombay High Court for necessary reference.
The background in which the dispute in the present petition arose has already been recorded in a detailed judgment in writ petition no. 9065 of 2011 decided on 18th of February, 2011 which was a petition filed by the respondent no. 4 himself. The challenge in that writ petition was to the order of the Assistant Registrar dated 27th of January, 2011 whereby it was held that the respondent no. 4 is not a member of the General Body and the list submitted by him could not be registered under Section 4 of the 1860 Act. The petitioners had been enrolled and registered as the list of office bearers that was upheld by the Assistant Registrar in the said order.
The said writ petition was dismissed by recording the following findings:-
"Under the bye-laws of the society meeting can be convened after giving seven days notice for general meeting and three days' notice for special meeting. Here in the present case, father of petitioner No. 2 died on 07.05.2010 and straightaway he claims to have been inducted as member in the meeting conducted on the very next day and was enrolled as member. Holding of meeting on the face of it is illegal. However, the said factum has been seriously disputed by the Deputy Manager and the President by saying that the meeting could have been convened only by the President and in case petitioner No. 2 was accepted as member, receipt should have been issued by the Deputy Manager, and factually such situation has not been substantiated. Once this is the factual scenario that petitioner No. 2 has failed to show and substantiate the factum of his membership, the meeting being illegal on the face of it and the theory set up by him has not at all been found credible, as such Deputy Registrar, Firms and Societies in this background was not at al obliged to make reference under Section 25 (1) of the Societies Registration Act. Qua the finding of fact recorded by Deputy Registrar in his order, petitioner has not submitted any reasonable or plausible explanation warranting to take different view in the matter. Once finding of fact has been recorded that the petitioner was not validly enrolled member and the entire proceedings had been manipulated by him, then there is no occasion to interfere with the order dated 27.01.2011. However, it is made clear that against the order passed under Section 4 of the Societies Registration Act, 1860, petitioner in case he so desires approach the Prescribed Authority after mustering support of one-fourth members of the General Body of the society under Section 25 (1) of the Societies Registration Act and against the decision decision taken by the Prescribed Authority, petitioner can also institute suit, in the facts of the case, for declaration of his rights, as order passed under Section 4 is always subject to order passed by Prescribed Authority.
In terms of above observations, writ petition stands disposed of."
A special appeal was filed against the said judgment being special appeal no. 449 of 2011 which was also dismissed. It is thereafter that the prescribed authority has proceeded to pass the impugned order making a declaration in favour of the respondent no. 4.
Sri Yogish Saxena contends that the findings on the issue of membership against the respondent no. 4 were upheld by this court in the judgment dated 18.2.2011 and the prescribed authority while proceeding to pass the impugned order has nowhere adverted to the same in correct perspective. He further submits that the prescribed authority has further drawn conclusions which are perverse inasmuch as the finding recorded in the judgment in relation to the provisions of calling of the meeting have been ignored and a finding contrary to the same has been recorded by the prescribed authority which vitiates the impugned order.
He further contends that it was an infructuous dispute which the prescribed authority has proceeded to decide as the tenure of the committee which was under dispute had already run out. He further submits that the new list of office bearers has already been registered by the Assistant Registrar for the year 2012-13, and therefore, there was no occasion for the prescribed authority to have decided the dispute of a defunct committee. He has relied on two decisions of this Court, namely, Committee of Management, Audyogik Vikas Uchchattar Madhyamik Vidyalaya Samiti, Bibara Bazar, Maharajganj, District Basti and another Vs. Prescribed Authority, Basti (Under U.P. Societies Registration Act No. XI of 1984)/Sub Divisional Magistrate, Harriya, Basti and others reported in 1992 (2) AWC 1225, and the other judgment in the case of Shiv Murti Verma Vs. State of U.P. and others reported in 2011 (3) ADJ 755.
Sri Ashok Khare, learned Senior Counsel for the respondent no. 4 and the learned Standing Counsel for the respondent nos. 1, 2 and 3 have urged that they do not propose to file any counter affidavit and the matter be disposed of finally.
Sri Khare contends that the findings recorded are on facts and that the judgment dated 18.2.2011 did not prohibit the prescribed authority from recording any independent findings and therefore the prescribed authority was well within his jurisdiction to record a finding independently in relation to the manner in which the meeting was held. He further submits that the prescribed authority has further held that the complaints moved by the petitioners were all frivolous and had no substance that they were unsubstantiated by any relevant material on record. He further submits that the impugned order does not require any interference by this Court under Article 226 of the Constitution of India.
Learned Standing Counsel has also adopted the same arguments.
Having heard learned counsel for the parties and having considered the submissions, it is evident that the law laid down by this Court as well as by the apex court and considered in the judgment of Shiv Murti Verma (supra) does require the prescribed authority to apply his mind on the issue as to whether the dispute has become infructuous or not. The prescribed authority has proceeded to decide the matter without adverting to this question and therefore the impugned order in my opinion is vitiated on this score as well.
Apart from this the fact remains that the prescribed authority could not have ignored the observations made by the learned Single Judge in the judgment dated 18.2.2011 which have been extracted hereinabove. Thus on merits the impugned order, cannot be sustained on any count and is hereby quashed.
The writ petition is allowed. The matter is remitted back to the prescribed authority to decide the matter afresh in the light of the observations made hereinabove.
Order Date: 17.10.2012 Sahu