JUDGMENT
K.S. Paripoornan, C.J.
1. There are three petitioners in this case. They question the constitutionality and propriety of the Bihar Official Language Amendment Act (Bihar Act 2 of 1981). The resultant notifications dated 17-4-1981, 12-6-1989 and 16-6-1989 issued by the Government in the department of official language are also assail-ed. The combined effect of the Act and the notifications is to declare “Urdu” as the second official language in as many as 29 districts of Bihar. True copy of the Bihar Act 2 of 1981 is Annexure-1 and the notifications are Annexures 2, 2A and 2B. The petitioners contend that Act 2 of 1981 is ultra vires of the Constitution, since it is violative of Articles 343, 345 and 347 of the Constitution of India. It is stated that the Urdu speaking people form 9.95% whereas the Hindi speaking people constitute 79.85%. For exercising the power under Article 347 of the Constitution, “substantial proportion of the population of a State” should desire the use of any language spoken by them to be recognised by that State. It is not so herein. The Bihar Official Language Act, 1950 came into force in 1950. It is by the amendment Act (Act 2 of 1981), “Urdu” was adopted as the second official language. It was so declared in 15 districts by Annexure-2 and in 13 districts by Annexures 2 A and 2B. This writ petition is filed on 11-12-1991, more than 10 years after the amendment was made and more than 10 years after it was brought into force in 15 districts and more than 2 years and 6 months after the amendment Act came into force in other districts.
2. The State has filed a detailed counter-affidavit dated 6-1-1993. Apart from defending the amendment Act and the notifications as valid, it is stated that “Urdu” has been entertained in applications in Government offices and supplying replies by the State Government for the last more than 10 years and has not created any problem and the challenge made against the Act and the notifications is belated.
3. We heard counsel for the petitioners and also the learned Advocate General, who appeared for the respondents.
4. Ordinarily, the period prescribed for filing a revision or appeal in the High Court is the period within which the writ petition should be filed. But, in this case, the Amendment Act is assailed more than 10 years after it was enacted and even the latest notifications came into force more than two years and six months back. So, the Court pointed out to counsel for the petitioners that the writ petition is belated and no sufficient cause or reason is shown for the inordinate delay in filing the writ petition. It was also pointed out to counsel that the jurisdiction exercised by this Court under Article 226 of the Constitution is an extraordinary discretionary one and in view of delay and laches this Court is not inclined to entertain the writ petition.
5. Counsel for the petitioners brought to the notice of the Court the following decisions, to contend that the delay in filing the writ petition is of no consequence or should not be taken into account in cases where the vires of an Act is challenged or where the fundamental rights of the petitioners are in jeopardy;
i. R. S. Deodhar v. State of Maharashtra, AIR 1974 SC 259; ii. Kamalabai v. T. B. Desai, AIR 1966 Bom 36 (Para 40); iii. Begum Bazar Fish Market Association v. Hyderabad Municipality, AIR 1983 AP 278 at p. 280; iv. Jagadhari Elec. Supply and Industrial Co. v. H.S.E.B. Chandigarh, AIR 1985 P & H 103.
6. The above plea is totally unacceptable. The decisions cited are distinguishable on facts. It should be remembered that unlike Article 32 of the Constitution, the right to invoke Article 226 of the Constitution of India is not a fundamental right and a wide discretion is vested in the High Courts under Article 226 of the Constitution. In exercising the said discretion, a wide variety of factors including delay, laches, acquiescence, practical wisdom, expediency, repercussions likely to result by exercising the discretion, one way or the other, etc., should be reckoned and cannot be ignored. The law on the point is succinctly stated by Durga Das Basu in his celebrated treatise “Shorter Constitution of India” 11th Edition, 1994 at page 571, as follows :
“In some earlier cases, the view had been taken that the enforcement of fundamental rights being a duty of the Court, delay would be no ground for refusing relief under Article 32 or 226 where fundamental rights have been infringed. But this view has been demolished by a number of recent Supreme Court decisions. The whole thing is now left to the discretion of the Court,”
In Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769), the law on the point has been laid down by the Supreme Court, as is seen from the head-note, thus:
“Where an applicant for an Import licence in 1959 received a licence only for a fraction of the amount for which he had asked for, chooses to wait and conies to a Court in 1964 requesting for a writ of mandamus even if his fundamental rights are involved, the matter is still in the discretion of the High Court, and the High Court in its discretion can refuse the issue of a writ because of the laches of the applicant….. it is essential that the person aggrieved should approach the High Court after exhausting his other legal remedies with utmost expedition.”
In paragraphs 3 and 4 of the judgment, the Court has explained the matter rather exhaustively, by relying on an earlier Constitution Bench decision, in the following terms:
“It is well settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation.
4. Gajendragadkhar, C. J., speaking for the Constitution Bench., in Smt. Narayani Debi Khaitan v. State of Bihar, Civil Appeal No. 140 of 1964, D/- 22-9-1964 (SC), observed;
It is well settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened, by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and Like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably.”
In Tilokchand Motichand v. H. B. Munshi (AIR 1970 SC 898), the Supreme Court, by majority, held that the Court will not inquire into belated and stale claims or take note of evidence of neglect of one’s own rights for a long time. After an exhaustive review of the decisions of the Supreme Court and other High Courts, a Bench of the Rajasthan High Court in Hastimal v. State of Rajasthan (AIR 1973 Raj 285), at page 288, stated the law thus:
“….. it is clear that notwithstanding that violation of a fundamental right is alleged the delay disentitles a petitioner from seeking a relief in the exercise of extraordinary jurisdiction under Article 226 of the Constitution.”
We are of the view that the same rule should apply even when the vires of a legislative measure is challenged after a long time, especially when the legislative measure has been given effect to and has prevailed in the State without giving rise to any problem practically so far. In this case, the “law” has been accepted by the people, without any demur and has not given rise to any problem. This is a very cogent reason to be borne in mind.
7. In the light of the statement of the law as stated by Durga Das Basu, the decisions of the Supreme Court and of the Rajasthan High Court, hold that in view of inordinate and unexplained delay in filing this writ petition attacking the vires of Act 2 of 1981 and the consequential notifications, the writ petition cannot be entertained. In the totality of the circumstances, I am not inclined to exercise the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. It is neither expedient nor practical to do so at this distance of time. The writ petition deserves to be dismissed. I hereby do so.
Naresh Kumar Sinha, J.
8. I agree.