ORDER
S.K. Katriar, J.
1. Heard Mr. Madan Mohan Prasad for the petitioner, and Mr. Mohit Kumar Shah, JC to Mr. Mihir Kumar Jha for the respondents. Learned Counsel for the respondents has taken a preliminary objection that in view of the laws governing the issue, a writ petition under Article 226 of the Constitution of India and can be filed in the Patna High Court only in English. The present writ petition is in Hindi and cannot, therefore, be entertained. Learned Counsel for the petitioner has contested this proposition and submits that a writ petition under Articles 226 and/or 227 in Hindi is maintainable in this Court.
2. Rule 1, Chapter III, Part II of the Patna High Court Rules lays down that “Every application to the High Court shall be by a petition written in the English language.” Articles 348 (1) and (2) of the Constitution is relevant in the present context which reads as follows:
Language of the Supreme Court, High Court, etc. 348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.–(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides-
(a) all proceedings in the Supreme Court and in every High Court,
(b) the authoritative texts-
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
(ii) of all Acts passed by Parliament or the legislature of a State and of all ordinances promulgated by the President or the Governor of a State, and under anylaw made by Parliament or the legislature of a State, shall be in the English language.
(2) Notwithstanding anything in Sub-clause (a) of Clause (1), the Governor of a State may, with the previous consent of the President, authorities the use of the 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 this clause shall apply to any judgment, decree or order passed or made by such High Court.”
(3)…. ……..
Section 7 of the Official Language Act, 1963 (Act 19 if 1963), hereinafter referred to as ‘the Act’, is also relevant in the present context and is set out hereinbelow for the facilitiy of quick reference :
“7. Optional use of Hindi or other official language in judgments, etc. of High Courts.–As from the appointed day or any day thereafter, the Government of a State may, with the previous consent of the President, authorise the use of Hindi or the official language of the State, in additional to the English language, for the purposes of any judgment, decree or order passed or made by the High Court for that State and where any judgment, decree or order is passed or made in any such language (other than the English language), it shall be accompanied by a translation of the same in the English language issued under the authority of the High Court.”
In view of the powers conferred by Article 348 (2) of the Constitution read with Section 7 of the Act, the Governor of Bihar has, with the previous consent of the President of India, issued the notification authorising alternative use of Hindi language in the Patna High Court except petitions under Articles 226 and 227 of the Constitution. The text of the notification is set out hereinbelow for the facility of quick reference :
eaf=eaMy ¼+jktHkk”kk½
lfpoky;
vf/klwpuk
9 ebZ 1972
la- 31fg 3&5043168——185&jk- lafo/kku
ds vuq{PNsn 348 ds [kaM¼+2½ ,oa vkfQfl;y ykSaXostst ,sDV] 1963 ¼+vf/kfu;e 19]
1963½ dh /kkjk 7 v/khu iznRr ‘kfDr;ksa dk iz;ksx djrs gq, fcgkj jkT; iky
jk”Vªifr dh iwoZ lEefr ls] mPp U;k;ky; esa fuEukafdr dk;Zokfg;ksa ds fy;s
fgUnh Hkk”kk dk oSdfYid iz;ksx djus ds fy;s izkf/kd`r djrs gSa%
¼+1½ iVuk mPp U;k;ky; ds le{k nhokuh rFkk
QkStnkjh ekeyksa esa cgl djus ds fy,A
¼+2½ ‘kiFk&i=ksa lfgr vkosnu izLrqr
djus ds fu;s%
fdUrq viokn Lo:i Hkkjrh; lafo/kku ds vuqPNsn
226 vkSj 227 ds v/khu izLrqr fd, tkus oky vkosnuksa ds fy, vaxszth dk iz;ksx
fd;k tkrk jgsxkA vkosnuksa ls layXu vuqca/k dk vaxzsth esa gksuk vko’;d ugha
gksxkA bl izdkj dj funsZ’k ¼+VSDl jsQjslstu½ ls lacaf/kr vkosnu Hkh dsoy
vaxzsth esa izLrqr fd;s tkrs jgsaxsA [kkl&[kkl ekeyksa esa] iVuk mPp
U;k;ky; fgUnh ds dkxtkr dk vaxzsth esa vuqokn djkus dk vkns’k ns ldsxkA
¼+3½ iVuk mPp U;k;ky; }kjk ikfjr ;k fn,
tkusokys fdlh fu.kZ;] fcØh ;k vkns’k ds fy, fdUrq tgka dksbZ fu.kZ; fcØh ;k
vkns’k fgUnh esa ikfjr fd;k tk fn;k tk,xk] ogka iVuk mPp U;k;ky; ds izkf/kdkj
ls fudkyk x;k vaxzsth vuqokn lkFk esa fn;k tk;xkA
2 jktHkk”kk—————6
3. The Constitution of India is the paramount law of the country and all provisions of law enforced by Acts of the Parliament or the Legislature or under the rule-making power must conform to the provisions of the Constitution of India. It is manifest from the provisions of Article 348 (1) of the Constitution that normally English language shall be the official language for proceedings in the Supreme Court and the High Courts in India. However, Article 348 (2) provides that the Governor of the concerned State may, with the previous consent of the President, authorise the use of Hindi or any other language of the concerned State for proceedings in the concerned High Court which has to be read with the provisions of Section 7 of the Act. In exercise of the powers so conferred, the Governor of Bihar has issued the notification in terms of Article 348 (2) of the Constitution read with Section 7 of the Act, It is manifest from the terms of the notification that Hindi will be the alternative (Vaikalpik) language for presenting petitions, applications and affidavits and also for the proceedings in the Patna High Court, except petitions under Articles 226 and 227 of the Constitution of India. It further provides that the annexures thereto need not necessarily be in English. It also provides that petitions with respect to tax references shall also have to be in English. It also provides that the High Court may, in appropriate cases, give direction for translation of the annexures in Hindi.
4. I must also notice some of the other provisions brought to my notice by learned Counsel for the petitioner. He relied on Article 351 of the Constitution of India and submits that it is his fundamental right to present petitions in Hindi language and, therefore, any other direction would be violative of Articles 14 and 19(1)(g) of the Constitution. Article 351 is set out hereinbelow for the facility of quick reference :
“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 or 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 Eight Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.”
It is manifest from a plain reading of Article 351 that this is a general provision to promote Hindi in India, whereas Article 358 is a specific provision for the use of the Official languages in the Supreme Court and the High Courts. Law is well-settled that applicability of a general provision is excluded in a situation where a specific provision is in force. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to excluded the more specific from the area of operation of the former. The Principle is expressed in the maxims Generalia Spscialibus Non Derogant (General things do not derograte from special things), and Generaliabus Specialia Derogant (Special things derogate from general things). If a special provision is made on a certain matter, that matter is excluded from the general provisions. Applying the same rule, the Supreme Court held in its judgment reported in AIR 1964 SC 207 (at P 215) (South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum), that the general provisions under Article 372 of the Constitution regarding continuance of existing laws is subject to Article 227 of the Constitution which is a special provision relating to taxes, duties, cases, or fees lawfully levied at the commencement of the Constitution. In the present context, Article 351 of the Constitution of India is a general provision regarding development of Hindi all over India, whereas Article 348 is a specific provision with regard to the language to be used in the Supreme Court and the High Courts. Obviously, therefore, applicability of Article 351 of the Constitution in the present context is entirely obviated.
5. In so far as the second part of the submission is concerned, I am unable to appreciate as to how the provisions of the Articles 14 and 19 (1)(g) of the Constitution of India are attracted in the present case, neither any discriminatory approach nor arbitrary action has been alleged. The present issue is governed by the provisions of Rule 1 Chapter III, Part II, of the Patna High Court Rules read with the aforesaid notification of the Governor of Bihar issued in terms of Article 348 (2) of the Constitution read with Section 7 of the Act, which provide that the writ petitions (not the annexures thereto) in the Patna High Court must be in English. This law is uniformly applicable to all Sections of the litigant public presenting petitions under Articles 226 and/or 227 of the Constitution. The notification is in terms of Article 348 (2) of the Constitution cannot, therefore, be assailed on the ground of arbitrariness. The provisions of Section 7 of the Act, as well as the relevant provisions of the Patna High Court Rules, cannot also be assailed on the ground of arbitrariness.
6. In so far as the provisions of Article 19 (1)(g) of the Constitution is concerned, the petitioner’s right to carry on the profession as a lawyer is unaffected. Secondly, all fundamental rights are subject to reasonable restrictions which have been provided by the provisions of Article 348 of the Constitution of India. Thirdly, the writ petition is presented by the petitioner and it is, therefore, a very doubtful proposition whether petitioner’s right to present the petition in proper language, is the dominant issue, or the subservient issue of the petitioner’s Counsel to carry on his profession, the dominant issue.
7. I must now notice some of the judgments relied on by learned Counsel for the petitioner. He first of all relied on the judgment of a learned Single Judge of this Court which is in Hindi, reported in 1981 BBCJ 260 (Nazir Hussain v. Dukh Mochan Thakur). The judgment is in Hindi and was passed on a criminal revision application. The judgment is obviously irrelevant in the present context, because it is squarely covered by the provisions of the aforesaid notification.
(7.1) He next relied on the judgment of the Supreme court reported in (2001 (2) SCC 247) Dr. Vijay Lakshmi Sadho v. Jagdish. The civil appeal before the Supreme Court had arisen out of an election petition. The same did not deal with a writ petition from Bihar and, therefore, the judgment is inapplicable to the facts and circumstances of the present case.
(7.2) He has next relied on a Division Bench judgment of the Allahabad High Court reported in AIR 1977 Aliahabad 164 (Prabhandhak Samiti v. Zila Vidyalaya Nirikshak). Paragraph 16 of this judgment is relevant in the present context, and is reproduced hereinbelow for the facility of quick reference:
“16. Thus, on a proper interpretation of the notification dated 5th September 1969 made under Article 348 (2), there can be no manner of doubt as to the legality of a writ petition being drafted in Hindi in Deo Nagri script and filed for adjudication in the High Court in the State of Uttar Pradesh. In fact, the language of the notification is wide enough to cover all pleadings, including plaits,
written statements, writ petitions and also other documents which are required
to be filed in such proceedings, tt is also clear from the various measures al
ready taken to which we have referred in our judgment that the law as it now
stands does not empower a Judge of our High Court while hearing a case to stop
a litigant or his Advocate from making the arguments in Hindi, if he so desires.
It is also equally clear that it is open to a Judge of the High Court hearing a case
to pass his judgment or decree or order in Hindi, if he so chooses, but he cannot
be compelled to do so. In case, however, he passes an order or decree etc. in
Hindi, the only limitation still imposed upon him is that it must be accompanied
by a translation of the same in the English language issued by the authority of
the High Court. This sums up the present legal position with regard to the use of
Hindi in proceeding in the High Court. Therefore, we hold that a writ petition
presented in Hindi in Deo Nagri script in the High Court is competent and the
petitioner is entitled to ask for its adjudication.”
It is manifest from a bare perusal of the judgment that the Governor of the State
of Uttar Pradesh has issued a notification in terms of Article 348 (2) of the Constitution
of India permitting presentation of writ petitions in Hindi language in Devnagri Script
as an alternative language to English in the High Court of Uttar Pradesh. A similar
notification of the State of Bihar set out and discussed hereinabove prohibits writ
petitions under Articles 226 and 227 in the Hindi language in the Patna High Court
The judgment of the Allahabad High Court is obviously inapplicable to the present
case.
(7.3) Learned Counsel for the petitioner has next relied on an order dated 21-7-1995 of a Division Bench of this Court, passed on LPA No. 600 of 1995, (Swaran Singh Bagga v. N.N. Singh, Registrar), reported in 2003 (1) PLJR 315, and is set out hereinbelowfor the facility of quick reference:
“This Letters Patent Appeal is directed against the judgment of a learned Single Judge dated 5-5-1995 passed in CWJC No. 2825 of 1995, who has dismissed the same by referring to Article 348 of the Constitution of India.
2. The prayer of the appellant was that all proceedings in the High Court must be in Hindi, arguments should be advanced in Hindi, arguments should be advanced in Hindi and judgment should also be delivered in Hindi. This prayer possibly cannot be granted. There is no bar for any person to file an application in Hindi nor is there any bar for any person to advance argument in Hindi and in fact in several cases this is being accepted by this Court.”
3. In that view of the matter, we see no justification in entertaining this
appeal. It, accordingly, stands rejected.”
The main issue raised by the appellant in the aforesaid case appears to be that
all proceedings in the High Court must be in Hindi, arguments should be advanced in
Hindi and the judgment should also be delivered in Hindi which was rejected by the
High Court and the appeal was dismissed. The aforesaid notification of the Governor
of Bihar issued in terms of Article 348 (2) of the Constitution of India read with
Section 7 of the Act was not brought to the notice of the Bench. The appeal before
the Division Bench arose out of the order dated 5-5-1995, passed in CWJC No. 2825
of 1995. Therefore, the controversy whether or not a writ petition under Article 226
and 227 of the Constitution of India can be presented in Hindi in this Court was not
the issue before the Division Bench. The issue was whether or not the proceedings,
the arguments, and the judgment can only be in Hindi.
(7.4) Learned Counsel for the petitioner next submits that the writ petition in CWJC No. 1948 of 2002 (Lal Bihar Sao v. Bihar State through the Chief Secretary, Government of Bihar), was also presented in Hindi and entertained by this Court. I have perused the order dated 9-7-2002, disposing of the writ petition, inter alia, with the following observations:
“Notwithstanding Mr. Tripathy’s objection which cannot be said to be unfounded, this Court proceeded to hear the Counsel appearing in support of this writ petition. On hearing, it is found that the writ petition is without merit or substance and can be disposed of even without deciding the question of its maintainability and asking the respondents to file any counter-affidavit However, the disposal of this case on merits does not mean any approval by this Court of filing writ petition in Hindi and this order may not be taken as a precedent for filing in future a petition in Hindi.
Sd/
(Aftab Alam)”
It is thus manifest that the question was not decided in the aforesaid case. The order of the learned Single Judge had given rise to LPA No. 910 of 2002 (Lal Bihar Sao v. State of Bihar and Ors.), wherein this issue was not at all canvassed, the appeal was dismissed, and the order of the learned Single Judge was upheld on merits. Therefore, the order of the learned Single Judge on the writ petition and the order of the Division Bench on appeal are inapplicable in the present context. In fact, as stated hereinabove, the learned Single Judge left the issue open.
8. Learned Counsel for the respondents has relied on the judgment of the Supreme Court reported in (1983) 4 SCC 353 (Sreenivasa General Traders v. State of Andhra Pradesh), paragraph 30 of the which is relevant in the present context and is set out hereinbelow for the facility of quick reference:
“………………… A case is an authority only for what it actually decides and not for what may logically follow from it. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. It would appear that there are certain observations to be found in the judgment in Kewal Krishan Puri case, which were really not necessary for purposes of the decision and go beyond the occasion and, therefore, they have no binding authority though they may have merely persuaive value. The observation made therein seeking to quantify the extent of correlation between the amount of fee collected and the cost of rendition of service, namely (SCC P 435, para 23): “At least a good and substantial portion of the amount collected on account of fees, may be in the neighboruhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services in the market to the paryer of fee”, appears to be an obiter.”
Learned Counsel for the respondents has relied on the judgment in support of his submission that the observations made in some of the judgments/orders relied on by learned Counsel for the petitioner were either obiter or made without consideration of the entire issues and the laws touching this aspect of the matter. There is no need to examine this submission in view of our conclusion reached hereinabove.
9. It is thus, manifest on a consideration of the relevant provisions of law governing the issue that the petitions and affidavits can also be presented in the Patna High Court in Hindi, as an alternative to English language, except writ petitions under Articles 226 and/or 227 of the Constitution which must be in English. The annexures thereto can be in Hindi and, in appropriate cases, the High Court can give direction for translation of the same (the annexures) in English. All petitions relating to tax references can be presented only in the English language.
10. In the result, this writ petition is dismissed on the ground that a writ petition under Articles 226 and/or 227 of the Constitution of India can be presented in the Patna High Court only in English language. Neither was it canvassed before me, nor have I considered the question, whether or not the proceedings of this Court can be conducted in Hindi in a situation where an appropriate writ petition in the English language has been presented for adjudication, nor does it apply to the language of the judgment or order on a writ petition. Since, I have not applied my mind nor any arguments were advanced on the merits of the case, the petitioner will have the liberty to present an appropriate writ petition in the English language.