Allahabad High Court
Smt. Farzana vs State Of U.P. And 3 Others on 28 February, 2018
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 25 Case :- WRIT - C No. - 39800 of 2017 Petitioner :- Smt. Farzana Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Dharm Raj,Shobh Nath Counsel for Respondent :- C.S.C. Hon'ble Siddhartha Varma,J.
When the fair price shop of the respondent no. 4, namely, Bhavnath Singh was suspended on 13.5.2016 and when it was thereafter upon an enquiry restored on 8.2.2017, the petitioner who was aggrieved by the restoration of the fair price shop filed an appeal which was numbered as 68 of 2017. However, when the petitioner's appeal was dismissed on 19.5.2017 by the Deputy Commissioner (Food) Varanasi Division- Varanasi as being not maintainable, the petitioner filed the instant writ petition.
Learned counsel for the petitioner submitted that the respondent no. 2 had placed reliance on the English version of the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, and had held that the appeal was not maintainable. He submits that this was in contravention of the settled principle of law that if there was any confusion or ambiguity with regard to any provision of the authoritative English translation of a particular piece of legislation then it was always permissible to look into the Hindi text of it to remove any doubt or ambiguity.
Learned counsel for the petitioner read out the English version of the Clause 13 of the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, and also the Hindi version of the Clause 13 of the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, and therefore the English versions as well as the Hindi version are being reproduced here as under:-
13. Appeal - (1) Appeal in relation to action or subject covered under the National Food Security Act, 2013 and rules famed under it shall lie before the authority mentioned in sub-clause (10) of clause 11 of this order but appeal against appointment, suspension and cancellation of fair price shop by the competent Authority shall lie before the Divisional Commissioner.
(2) Any person aggrieved by an order of the Designated Authority denying the issue or renewal of a ration card or cancellation of the ration card under the National Food Security Act, 2013 may appeal to the Appellate Authority within thirty days of the date of receipt of the order.
(3) Any person aggrieved by an order of the Competent Authority denying the issue or renewal of the agreement to the fair price shop owner, suspension or cancellation of the agreement may appeal to the Appellate Authority namely the Divisional Commissioner or the Joint Commissioner/Deputy Commissioner (Food) authorized by him in writing to hear and dispose appeal within thirty days of the date of receipt of the order and the Appellate Authority shall, as far as practicable, dispose the appeal within a period of sixty days:
Provided that once an appeal has been disposed of by the Appellate Authority, the time for issue or renewal of the agreement of the fair price shop owner by the Competent Authority referred to in sub-clause (9) of clause 10 shall begin from the date of decision of the Appellate Authority on the appeal:
Provided further that an appeal pending before the Appellate Authority appointed under the Uttar Pradesh Schedule Commodities Distribution Order, 2004 shall be disposed of by such authority as if this order had not been made.
(4) No appeal shall be disposed of unless the aggrieved person has been given a reasonable opportunity of being heard.
(5) Pending the disposal of an appeal, the Appellate Authority may direct that the order under appeal shall not take effect for such period as the authority may consider necessary for giving a reasonable opportunity to the other party under sup-clause (4) or until the appeal is disposed of, whichever is earlier.
13- vihy& ¼1½ jk"Vªh; [kk| lqj{kk vf/kfu;e] 2013 vkSj mlds v/khu cuk;h x;h fu;ekoyh ds v/khu vPNkfnr dk;Zokgh ;k fo"k; ds lEcU/k esa bl vkns'k ds [k.M&11 ds mi[k.M ¼10½ esa mfYyf[kr izkf/kdkjh ds le{k vihy dh tk;sxh] fdUrq l{ke vf/kdkjh izkf/kdkjh }kjk mfpr ewY; dh nqdku dh cgkyh] fuyEcu vkSj fujLrhdj.k ds fo:) lEHkkxh; vk;qDr ds le{k vihy dh tk;sxhA ¼2½ jk"Vªh; [kk| lqj{kk vf/kfu;e] 2013 ds v/khu fdlh jk'ku dkMZ dks tkjh djus ;k uohdj.k djus ls badkj ;k jk'ku dkMZ dk fujLrhdj.k djus ls lEcfU/kr inkfHkfgr vf/kdkjh ds vkns'k }kjk O;fFkr dksbZ O;fDr vkns'k dh izkfIr ds fnukad ds rhl fnuks ds Hkhrj vihyh; izkf/kdkjh dks vihy dj ldrk gSA ¼3½ mfpr ewY; dh nqdku Lokeh dks vuqcU/k tkjh djus ;k uohdj.k djus] vuqcU/k dks fuyfEcr ;k jÌ djus gsrq l{ke izkf/kdkjh ds fdlh vkns'k }kjk O;fFkr dksbZ O;fDr vihyh; izkf/kdkjh vFkkZr~ lEHkkxh; vk;qDr ;k mlds }kjk fyf[kr :i esa vihy dh lquokbZ vkSj fuiVku ds fy, izkf/kd`r la;qDr vk;qDr@mik;qDr ¼[kk|½ ds vkns'k izkIr gksus dh rkjh[k ls rhl fnu ds Hkhrj vihy dj ldsxk rFkk vihyh; izkf/kdkjh] tgka rd O;ogk;Z gS] lkB fnu ds Hkhrj vihy dk fuiVkjk djsxk% ijUrq ;g fd vihyh; vf/kdkjh }kjk ,d ckj vihy dk fuiVku fd, tkus ij [k.M&10 ds mi[k.M ¼9½ es fufnZ"V l{ke izkf/kdkjh }kjk mfpr ewY; dh nqdku Lokeh dk vuqcU/k tkjh djus ;k mldk uohdj.k djus dk le; vihy izkf/kdkjh }kjk vihyh; ij fofu'p; dh rkjh[k ls izkjEHk gksxk% ijUrq ;g vkSj fd mRrj izns'k vuqlwph oLrq forj.k vkns'k] 2004 ds v/khu fu;qDr fdlh vihyh; izkf/kdkjh ds lEeq[k yfEcr fdlh vyhy dk fuiVku ,sls izkf/kdkjh }kjk fd;k tk;sxk ekuks ;g vkns'k u fd;k x;k gksA ¼4½ fdlh vihy dk fuiVku rc rd ugh fd;k tk,xk tc rd fd O;fFkr fdlh O;fDr dks lqus tkus dk mfpr volj u fn;k x;k gksA ¼5½ vihyh; izkf/kdkjh] fdlh vihy ds fuiVku ds yfEcr gksus ij ;g funs'k ns ldsxk gS fd vihy ds v/khu vkns'k ml vof/k ds fy, izHkkoh ugh gksxk] tks izkf/kdkjh mi[k.M ¼4½ ds v/khu vU; i{kdkjksa dks lqu tkus dk mfpr volj iznku djus ds fy, vko';d le>s ;k tc rd fd vihy dk fuiVku u gks tk,] blesa ls tks Hkh iwoksZaRrj gksA Learned counsel for the petitioner submitted that undoubtedly when there was a conflict between the English version and the Hindi Version then as per the Full Bench decision reported in AIR 1974 (All) 106 : Smt. Ram Rati and others, v. Gram Samaj, Jehwa and others, the English version would prevail. However he submits that when there was a doubt or ambiguity with regard to any provision of the authoritative English text then it was permissible to look into the Hindi text to remove the doubt or ambiguity.
In the instant case, the learned counsel for the petitioner submitted that when an appeal had been provided for against appointment, suspension and cancellation of a fair price shop then definitely an appeal could also be filed against the restoration of a shop which had earlier been suspended or cancelled if and when the orders of suspension or cancellation were nullified. He submits that in the event there was no appeal against the restoration of a licence to run the fair price shop after the suspension or the cancellation order was set aside then the person aggrieved or the complainant would be left absolutely remediless and, therefore, he submits that since the Hindi version had provided that an appeal could be filed against the restoration (Bahali) then the Hindi version can be taken recourse to and an appeal could always be filed against the restoration of a licence after the suspension or the cancellation of it was set aside.
Learned counsel for the petitioner to bolster his submission has cited a decision of another Full Bench dated 13.9.1974 of our Court. This judgment has not been reported in any Journal and so the whole of the text of the judgment is being reproduced here as under:-
Special Appeal No. 622 of 1965Hon. Mathur, C. J.
Hon. K.B. Asthana, J.
Hon. G. C. Mathur, J.
Hon. Yashoda Nandan, J.
Hon. R. B. Misra, J.
Hon. Hari Swarup, J.
Hon. C. S. P. Singh, J.
(Delivered by Hon. Mathur, C. J.) A Full Bench of three Judges felt that there was conflict between the five Judge decision in Smt.Ram Rati and others v. Gram Samaj, Jehwa and others1 and the Division Bench Decision in Haji Lal Mohammad Biri Works, Meerganj, Allahabad and others v. The Sales-Tax Officer, Allahabad2, which was approved expressly by the Supreme Court in M/s. J.K. Jute Mills Co. Ltd. v. State of Uttar Pradesh and another3, and, therefore, referred the following question to a larger Bench.
"Whether it will be a sound rule of interpretation or construction of Statutes that if there appears to be some doubt or ambiguity in the authorized text in English language of an Act enacted in Hindi by the Legislature of Uttar Pradesh, then for resolving the ambiguity or doubt and for ascertaining the correct meaning thereof, reference can be made to the corresponding Hindi text and reliance placed thereon ?"
The learned Advocates for the parties wanted us to reframe the question so as to include in it another question which, according to them, also arises in the case i.e., whether the Hindi text of the Act, as passed by the Legislature, will, in case of a conflict or ambiguity, prevail over the authoritative English translation thereof. The consistent view of this Court has been that the authoritative translation in the English language, which is to be prepared under Article 348 (3) of the Constitution, is the authoritative text of the enactment and in case of conflict shall prevail over the Hindi text as passed by the Legislature. In the alternative, it was prayed that the reference may be returned to the Full Bench for Including this question.
We have carefully gone through the referring order and also the question referred to this Bench, and find that the above question which the parties wish us to decide, has not been referred to the Bench. Consequently, we do not have the jurisdiction to decide this question. It does not also appear necessary to return the reference to include the above question. In case the Full Bench feels that the consistent view of this Court also requires reconsideration, it can, even after the decision of this reference, move the Chief Justice for referring the question to a larger Bench of at least seven Judges. The additional question can then be decided. For the present, we shall confine ourselves to the question specifically referred to this Bench which has already been reproduced above.
We may, at the very outset, mention that if the distinction between "conflict" in the Hindi text and the authoritative text in English and "ambiguity or doubt" in the authoritative text in English is kept in mind, the apparent conflict in the decisions of this Court will disappear. A "conflict" between the Hindi text and the authoritative English text is different from a "doubt or ambiguity" in the authoritative English text. There will be conflict between the provisions of the two texts when it is not possible to reconcile or harmonize them and then the question will arise as to which of the two shall prevail. Such a conflict does not by itself result in a "doubt or ambiguity" in the authoritative English text. The principles applicable to the resolution of "conflict" are not applicable to the resolution of "doubt or ambiguity". The normal rules of interpretation of statutes will have to be applied in the case of "doubt or ambiguity" in any provision of the authoritative English text.
In M/s. J. K. Jute Mills Co Ltd. v. State of Uttar Pradesh and another (supra) their Lordships of the Supreme Court expressed their agreement with the law laid down in Haji Lal Mohammad Biri Works v. Sales Tax Officer (supra). The material observations are as below:
"The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided. The words, "in the form in which they were in force immediately before the commencement of this Act", no doubt occur after the words, " notification". But then the words " in the form" can have no reference to the impugned notification, because it had never changed form, whereas they were quite appropriate to S. 3A, because it had been amended. It should further be noted that the Validation Act was published both in Hindi and in English, and both of them were authorized versions. The words in the Hindi version make it clear beyond all doubt that the words "in the form in which they were in force immediately before the commencement of this Act" qualify the word " sections" and not the word " notifications." That is the view expressed by a Bench of the Allahabad High Court in Haji Lal Mohammad Biri works v. Sales Tax Officer AIR 1959 All 208, on a comparison of the two version, and we are in agreement with it."
The material observations in Haji Lal Mohammad Biri Works v. Sales Tax Officer (Supra) are as below:
"The English version of the Act, on the basis of which arguments were advanced before us, in this State has merely the status of an authoritative text in the English language of the original Act. The original Act is in Hindi and wherever there be any doubt and, in fact, principally for purposes of properly interpreting any provision of such an enactment, the proper course is to look at the original Act as published in Hindi. In these circumstances, we looked up the Hindi version of this Act. On examining it, we find that there can be no doubt at all that the expression in English authoritative version in the form in which they were in force immediately before the commencement of this Act' qualifies the words the said sections, and does not qualify the words the notifications' in S.3 of the U.P. Sales - tax (Validation) Act, 1958.
........................
It would, of course, have been better, had the meaning conveyed in the original Hindi version been put in the proper form in the ''English translation so as not to leave any ambiguity ....."
Similarly, in the Full Bench case of Jaswant Sugar Mills Ltd., Meerut v. The Presiding Officer, Industrial Tribunal (III) U.P., Allahabad and others4, it was observed:
"The Bill passed in Hindi thus becomes the Act and a full-fledged law. Both the original Act passed in Hindi as also its English translation are published in the state Gazette. It is therefore obvious that the Hindi version as also its English translation are authoritative. I am therefore unable to agree with Mr. Jagdish Swarup that the Act passed in Hindi cannot be looked into at all by either the High Court or the Supreme Court and cannot be used for any official purpose." ..............................................................................................From what I have said above, it is clear that both the Hindi version as also the English translation of a Bill, Act, etc., are valid . There is no competition between the two. It is only in case of conflict or divergence between the two versions that the question of authoritative text comes in.
The view that I am taking finds support from a Division Bench decision of this Court in the case of Haji Lal Mohammad Biri Works v. Sales Tax Officer ................................... and the decision of their Lordships of the Supreme Court in J.K. Jute Mills Co. Ltd. v. State of Uttar Pradesh ............., where the Allahabad case mentioned above was approved of. In the Supreme Court case the Validation Act was published both in Hindi and in English. A question arose as to whether the Hindi version could be used to clear what appeared to be ambiguous in the English version, and their Lordships observed as follows:
"........................................."
In view of these weighty pronouncements it can no longer be a matter off dispute that both the Hindi and the English versions are authorized and both of them can be looked into and put to official use."
The five Judges Bench deciding the case of Smt. Ram Rati and others v. Gram Samaj, Jehwa and others (supra) had relied upon the Full Bench case of Jaswant Sugar Mills Ltd., Meerut v. the Presiding Officer, Industrial Tribunal, (III) U.P., Allahabad and others (supra) and reproduced the observations made therein as below:
..........., and both, the Hindi version as also the English translation of a Bill or Act etc., published in the Official Gazette are valid and authorized and both of them can be looked into and put to official use. There is no competition between the two. It is only in case of conflict or divergence between the two versions that the English version may reign supreme and supersede the Hindi one......."
Thereafter it was held:
"This being the position we are clearly of the opinion that in the present case it is the English text which shall prevail over the Hindi version ............."
It is thus evident that in Smt. Ram Rati and others v. Gram Samaj, Jehwa and others (supra) the Bench had regarded the difference in the two texts of the same enactment, one in English and the other in Hindi, to amount to a "conflict or divergence", and not to an "ambiguity or doubt". It expressed no opinion as to what would happen in the case of a "doubt or ambiguity" in the English text.
Whenever there exists an ambiguity in an enactment, well established rules of interpretation are applied to find out the intention of the Legislature. Whenever the question arises whether the word "and" used in a provision should be read as " or" or vice versa, the question is one of "doubt or ambiguity". But, where the words are unambiguous, no question of interpretation thereof really arises.
We are, therefore, of opinion that where there is some doubt or ambiguity in any provision in the authoritative English text, it is permissible to look into the Hindi text to remove the doubt or ambiguity. We accordingly answer the question referred to this Bench in the affirmative.
Dt./13.9.1974 RCG"
Thus he submits that though a simple reading of English version of Clause 13 of the Control Order of 2016 reveals that an appeal lies against an appointment and against a cancellation and a suspension of a licence, it is not clear if an appeal would lie against the restoration of a licence once suspension order has been set aside. He submits that when an appeal has been provided against an appointment it should also be provided against a restoration as the latter at times entails an appointment. He, therefore, submits that this confusion can be removed by looking into the Hindi version as has been held by the Full Bench decision. Learned counsel for the petitioner further relied upon a decision of the Apex Court reported in 2008 (7) SCC 409 : Commissioner of Trade Tax, U.P. v. Associated Distributors Ltd. and has submitted that if there is any difference found between the notifications in English and Hindi then the notification issued in Hindi would apply. For this purpose he has read out paragraph 7 of the judgment and therefore the same is being reproduced here as under:-
"It is pertinent to mention here that the official language of the State of Uttar Pradesh is Hindi. If any difference is found between the notifications in English and Hindi, the notification issued in Hindi will be applicable. On the said notification, the courts have decided that confectionery comes within sweets (mithai) and sweetmeat, but it has not been mentioned that Bubble-gum comes within the category of a Sweet."
Learned Standing Counsel, however, submitted that the writ petition was filed by a complainant and, therefore, the same was not maintainable. He also submitted that as per the Article 348 of the Constitution of India as English was the authoritative text of any statute, the English version alone should be adhered to.
Having heard the learned counsel for the parties, I am of the view that though the English version would be considered as the authoritative version, in the present case to clear the confusion/doubt as to whether an appeal would lie against a restoration of a licence it would be in the fitness of things that the Hindi version be looked into.
In the Full Bench decision reported in AIR 1974 (All) 106 : Smt. Ram Rati and others, v. Gram Samaj, Jehwa and others, it has held that the text of the authoritative English translation would prevail over the Hindi version but it was quiet as to what course had to be adopted in the event there was a confusion or doubt with regard to any provision when the English version alone was being read. Paragraph 11 of the Full Bench decision reads as under:-
"This being the position we are clearly of the opinion that in the present case it is the English text which shall prevail over the Hindi version and according to the English text the expression " any holding" occurring in Clause (ii) of Section 5(1) (c) of the Act does not include the "Whole holding" so that it is not necessary to obtain the permission of the Settlement Officer (consolidation) for the transfer of the holding as a whole."
However, when a question arose as to what had to be done in a case where there was a doubt or ambiguity with regard any provision in an enactment with regard to an authoritative English text then a Full Bench of this Court again on 13.9.1974 decided that it was always permissible to look into the Hindi text to remove the doubt or ambiguity.
In the instant case, there was definitely a doubt as to whether an appeal would lie against an order of restoration of a licence after the suspension or the cancellation order was set aside. Prudence says that an appeal should lie against an order of restoration, therefore, the situation became slightly ambiguous and, therefore taking recourse to the ratio laid down in the subsequent Full Bench decision dated 13.9.1974, I feel that there is nothing wrong in looking into the Hindi version of Clause 13 of the Control Order of 2016.
When a specific question was put to the State Government by this Court as to whether the English version would prevail over the Hindi version and as to whether an appeal would lie against the restoration of a licence which had been cancelled or suspended earlier then the state Government came up with a Government Order and said that the English version would prevail. This Government Order is dated 8.11.2017 and is being reproduced here as under:-
"'kh"kZ ÁkFkfedrk la[;k 15@2017@2292@29&6&2017&135lk@17 izs"kd] Mk0 v'kksd pUnz] fo'ks"k lfpo] mRrj izns'k 'kkluA lsok esa] vk;qDr] [kk| ,oa jln foHkkx] m0iz0 y[kuÅA [kk| ,oa jln vuqHkkx&6 y[kuÅ% fnukWd 08 uoEcj] 2017 fo"k;%& m0iz0 vko';d oLrq ¼foØ; ,oa forj.k fu;a=.k dk fofu;eu½ vkns'k 2016 ds lEcU/k esaA egksn;] mi;qZDr fo"k;d m0iz0 vko';d oLrq ¼foØ; ,oa forj.k fu;a=.k dk fofu;eu½ vkns'k 2016 ds izLrj&13¼1½ esa ;g O;oLFkk gS fd jk"Vªh; [kk| lqj{kk vf/kfu;e] 2013 vkSj mlds v/khu cuk;h x;h fu;ekoyh ds v/khu vkPNkfnr dk;Zokgh ;k fo"k; ds lEcU/k esa bl vkns'k ds [k.M&11 ds mi[k.M&¼10½ esa mfYyf[kr izkf/kdkjh ds le{k vihy dh tk;sxh] fdUrq l{ke izkf/kdkjh }kjk mfpr ewY; dh nqdku dh cgkyh] fuyEcu vkSj fujLrhdj.k ds fo:) lEHkkxh; vk;qDr ds le{k vihy dh tk;sxh] tcfd mDr vkns'k ds vaxzsth otZu esa Appointment, Suspension and Cancellation 'kCn mfYyf[kr gSA 2& bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd Hkkjr dk lafo/kku ds vuqPNsn&348¼1½¼[k½¼iii½ esa ;g O;oLFkk gS fd bl lafo/kku ds v/khu vFkok laln ;k fdlh jkT; dh fo/kku e.My }kjk cuk;s x;h fdlh fof/k ds v/khu fudkys x;s ;k cuk;s x;s lHkh vkns'kksa] fu;eksa] fofue;ksa ,oa mifof/k;ksa ds izkf/kd`r ikB vaxzsth Hkk"kk esa gksaxsA bl izdkj Appointment dk fgUnh :ikUrj.k fu;qfDr gksxkA vr% m0iz0 vko';d oLrq ¼foØ; ,oa forj.k fu;a=.k dk fofu;eu½ vkns'k 2016 ds izLrj&13¼1½ esa Appointment dk fgUnh :ikUrj.k cgkyh ds LFkku ij fu;qfDr i<+k tk;A Hkonh;] ¼Mk0 v'kksd pUnz½ fo'ks"k lfpoA"
Since this Government Order has not considered the law laid down in the Full Bench decision of our Court dated 13.9.1974 and had not considered as to what would be the situation if there was an ambiguity in the provisions of the authoritative English text, I hold that this Government order dated 8.11.2017 cannot be sustained in the eyes of law and, therefore, the same alongwith the impugned order dated 19.5.2017 passed by respondent no. 2 is also being quashed.
In the ultimate analysis it is being held that, upon a con-joint reading of both, the authoritative English text and the Hindi text an appeal would lie against the restoration of a licence after a suspension or a cancellation order is set aside. I also hold that the Government Order dated 8.11.2017 cannot be sustained and, therefore, the same is also being quashed. The impugned order dated 19.5.2017 passed by respondent no. 2 is set aside. The appeal shall be restored to its original number and shall be heard on merit.
The writ petition is allowed.
Order Date :- 28.2.2018 praveen.