Bombay High Court
Vinayak Hari Kulkarni vs State Of Maharashtra on 18 March, 2009
Author: S.B. Mhase
Bench: S.B. Mhase, D.G. Karnik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 6597 OF 2007
1. Vinayak Hari Kulkarni, age 73 years,]
Occ: Advocate, residing at 31st ]
Shivas Society, Karve Nagr, Pune-52.]..Petitioner 1.
2. Western India Advocate Association ]
High Court of Jiducature at Bombay, ]
Appellate Side, At Bombay (summons ]
to be served on the Honourable ]
President, Western India Advocates ]
Association, Mumbai. ]..Petitioner 2.
3. The Honourable President ]
Aurangabad High Court Bar ]
Association, Aurangabad. ]..Petitioner 3.
4. The Honourable President
Nagpur High Court Bar Association
Nagpur.
]
]
]..Petitioner 4.
Versus
1. State of Maharashtra, ]
(Summons to be served on the Learned]
Government Pleader appearing for ]
State of Maharashtra under order ]
XXVII, Rule 4, of the Code of Civil ]
Procedure, 1908.] ]
2. The Honourable High Court of ]
Judicature of Bombay, Appellate Side]
at Mumbai [Summons to be served on ]
the Learned Registrar General, ]
High Court, Appellate Side, Mumbai. ] .. Respondents
ALONGWITH
CIVIL APPLICATION NO. 2677 OF 2007
IN
WRIT PETITION NO.6597 OF 2007
1. Thane Bar Association, Thane through]
President, Shri Gajanan Chavhan, ]
Advocate, District Court, Thane. ]
2. Marathi Bhasha Sanrakshak Sanstha, ]
Through its Secretary Shri Deepak ]
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Gaikwad having its office at ]
Sudhanshu Chambers, 1st Floor, ]
Shivaji Path, Kalyan (W) 421301. ] .. Petitioners
Vs
1. State of Maharashtra ]
(Summons to be served on the Learned]
Government Pleader appearing for ]
State of Maharashtra under order ]
XXVII, Rule 4 of the Code of Civil ]
Procedure, 1908). ]
2. The Hon'ble High Court of Judicature]
of Bombay, Appellate Side at Mumbai ]
(summons to be served on the learned]
Registrar General, High Court, ]
Appellate Side, Mumbai. ]
3. Western India Advocate Association ]
High Court of Judicature at Bombay, ]
Appellate Side, At Bombay. ]
(Summons to be serced on the Hon'ble]
President Western India, Advocates ]
Association, Mumbai.) ]
4. The Hon'ble President, ]
Aurangabad High Court Bar Association
Aurangabad. ]
5. The Hon'ble President, ]
Nagpur High Court Bar Association, ]
Nagpur. ]
6. Vinayak Hari Kulkarni, ]
age: 73 years, occupation Advocate ]
R/at 31st Sahvas Society, Karve ]
Nagar, Pune - 52. ] .. Respondents
ALONGWITH
WRIT PETITION (STAMP) NO.24274 OF 2007
Shri Vinayak Hari Kulkarni, ]
age 73 years, occu: Advocate, residing ]
at 31, Sahawas Society, Karve Nagar, ]
Pune - 411052. ] .. Petitioner
Vs
1. State of Maharashtra. ]
[Summons to be served on the learned]
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State of Maharashtra under order ]
XXVII, Rule 4, of the Code of Civil ]
Procedure, 1908). ]
2. The Secretary, ]
Department of Social Welfare, ]
Government of Maharashtra, ]
Mantralaya, Mumbai 400032, ]
(Summons to be served on the learned]
Government Pleader appearing for ]
State of Maharashtra under order ]
XXVII Rule 4, of the Code of Civil ]
Procedure, 1908). ]
3. The District Collector, Pune ]
(Summons to be served on the learned]
Government Pleader appearing for ]
State of Maharashtra under order ]
XXVII, Rule 4 of the Code of Civil ]
Procedure, 1908]. ] .. Respondents
Mr. A.V.
Anturkar i/b Mr. S.B. Deshmukh for the
petitioner No.1.
Mr. S.P. Thorat, senior counsel i/b Mr. Patki for the
petitioner No.2.
Mr. S.K. Shinde for the petitioner No.3.
Mr. Girish Kulkarni a/w Mr. M.M. Deshmukh i/b Mr.
Satish Kekane for the petitioner No.4.
Mr. A.A. Garge for the applicant in Civil Application
No.2677 of 2007.
Mr. A.A. Kumbhakoni, Associate Advocate General (as he
then was) with Mr. R.D. Rane, Government Pleader for
the respondents No.1 and 2.
CORAM: S.B. MHASE &
D.G. KARNIK, JJ.
DATE OF RESERVING : 25TH NOVEMBER, 2007
DATE OR PRONOUNCEMENT: 18TH MARCH, 2009
ORAL JUDGMENT : [Per S.B. Mhase, J.]
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1. The petitioner in Writ Petition No.6597 of
2007 has filed the Writ Petition in respect of various
proceedings initiated under the Bombay Inferior Village
Watan Abolition Act. Most of the annexures, including
the impugned order in the said matters, are in Marathi.
The petitioner prepared the Writ Petition and went for
the purpose of filing the Writ Petition. However, the
petitioner was told by the Registry that unless all
annexures or, in any case, the impugned order was
translated from Marathi to English, the Petition would
not be entertained.
2. According to the petitioner, the non
acceptance of the Petition because the annexures are not translated into English was an act contrary to the provisions of the Constitution of India. The Registry brought to the notice of the petitioner the judgment and order passed in Writ Petition No.6408 of 2006 delivered by the High Court (Rebello & Sawant, JJ.) wherein it has been declared that the proviso to Rule 2(i) of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 is ultravires Article 348 (1)(a) of the Constitution of India. In the said judgment, the court directed in paragraph 14 of the said judgment to follow the procedure set out below which is based on the Practice Note issued by the Chief Justice of the High Court. The ::: Downloaded on - 09/06/2013 14:25:42 ::: : 5 :
said Practice Note provides thus :
(1) When the Judgment, Order, Government Resolution/Circular or Notification or other document under challenge is not in English and when the Advocate/party wants to rely upon the Judgment, Order, Government Resolution/Circular, Notification document which are not in English, typed or xerox copies of the translation in English of such judgment, order, Government Resolution/ Circular shall be produced.
(2) When the Advocate/party wants to produce and refer to other documents, the Advocate/party shall give an undertaking at the time of filing the Petitions that typed English translation thereof shall be produced if required by the court.
Thus, this judgment and the above quoted portions were brought to the notice of the petitioner. The petitioner realised that Chapter XVII Rule 2 which is about accompaniments to the application though provides that the applicant shall annex to his application, the English documents, it further provides by the proviso that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding. Thus, the petitioner found that the procedure prescribed in the Appellate Side Rules permitted the petitioner to file a Petition alongwith Marathi annexures with an undertaking that the English translation will be submitted or ::: Downloaded on - 09/06/2013 14:25:42 ::: : 6 :
supplied whenever order in that respect is made by the court in a particular proceeding. Having realised that this Rule has been struck down by the above referred judgment, the petitioner has filed this Petition for a declaration that Rule 2(i) of Chapter XVII of the Appellate Side Rules be held to be constitutionally valid and has sought direction to the Registrar of this court to implement Rule 2(i) of Chapter XVII along with the proviso. He sought a further direction that the Registry to accept the Writ Petition from the petitioner with Marathi documents including the Marathi documents where the impugned orders are in Marathi without insisting for the English translation thereof in conformity with the Rules referred to in Chapter XVII Rule 2(i).
3. In this Petition, the Thane Bar Association, Thane, has filed an Intervention Application being Civil Application No.2677 of 2007 supporting the petitioners.
Since it was a Civil Application by Advocates' Association, we have allowed them to intervene without being joined as party-respondents.
4. Writ Petition (Stamp) No.24274/2007 has been filed by one Vinayak Hari Kulkarni for quashing and setting aside the Government Resolution No.CBC-1494/Pra.
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Kra.236/MVK-5 dated 7th December, 1994 issued by the
Department of Social Welfare and the Sports, Government
of Maharashtra; Government Resolution No.CBC-1494/
Pra.Kra.236/MVK-5 dated 2nd January, 1995 and the
Corrigendum No.CBC-1494/Pra.Kra.236/MVK-5 dated 15th
June, 1995. This Petition was presented on 19th October 2007. However, the office took an exception that the translation of the above referred Government Resolutions had not been filed and on 19th October, 2007, the registration of the Writ Petition was rejected relying on the judgment in Writ Petition No.6408/2006 referred to above.
Since the registration has been refused by the Registrar (Judicial), the petitioner in the said Writ Petition (Stamp) No.24274 of 2007 has filed a Civil Application being Civil Application No2730 of 2007 for setting aside the Registrar's order and to direct the Registry to accept the said Writ Petition without the English translation of the annexures and to register the petition.
5. Since the Writ Petition No.6597 of 2007 was pending before this court, the Civil Application No.2730 of 2007 in Writ Petition (Stamp) No.24274 of 2007 was circulated to this court as the issue involved in both the matters was the same. In this respect, we have passed an order on 23rd October, 2007, wherein we have ::: Downloaded on - 09/06/2013 14:25:42 ::: : 8 :
observed that the registration of the Writ Petition has been refused by the Registrar (Judicial) relying on the judgment of this court delivered by the Division Bench of this Court in Writ Petition No.6408 of 2006 and, therefore, it will not be fruitful to take this Civil Application before the learned single Judge because the learned single Judge is not in a position to take a different view in the matter and the view taken by the Division Bench is binding on the learned single Judge.
Since the issue is the same in both the proceedings, and they can be conveniently dealt with by this Court, we grant the request of the applicant to place this matter alongwith the Writ Petition referred to above.
6. We are aware that the earlier Writ Petition No.6408 of 2006 has been dealt with by a Division Bench which is a co-ordinate Bench of this High Court and, therefore, at the most if we do not agree with the view expressed by the said Division Bench we will have to refer the matter with a request to the Hon'ble Chief Justice to constitute a larger Bench. Though it has been tried to be argued before this court that the judgment in the said Writ Petition No.6408 of 2006 is per incuriam, we do not find any merit in the submission of the learned counsel for the petitioner.
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7. It has been brought to the notice of this
court that in Writ Petition No.6408 of 2006, two
questions have been considered by the Division Bench in
the light of Article 348 of the Constitution. The first
question was whether it is obligatory on the
respondent-Government that the Government Resolution
dated 29th July, 2006 and the Government Resolution
dated 25th November, 2005, the legality and propriety of which was challenged in the said Writ Petition, required to be supplied by the Government alongwith the translation as provided in Article 348. While answering this question the Division Bench observed at the end of paragraph 4 thus:
"In respect of purely administrative functions, even if the exercise of power is co-extensive with the legislative power referable to the power conferred under the Constitution or under any law, the exercise of such power including under Article 154 normally would be administrative. In respect of such administrative powers, we are clearly of the opinion that there is no requirement that the English translation of such Government resolutions or administrative decisions must be made available."
8. The second issue which arose in the course of hearing and in respect of which we issued notice to the Registrar General of this court, concerns the very same Article. We had directed that an affidavit be filed as ::: Downloaded on - 09/06/2013 14:25:42 ::: : 10 :
to why the proceedings in the court including writ petitions filed, were not in the English language considering the practice notes issued from time to time and the fact that the proviso to Rule 2(i) of Chapter XVII of the Appellate Side Rules has been held to be ultravires Article 348 of the Constitution of India and directed further to follow the practice note issued by the Chief Justice of this court which has already been quoted above in this judgment.
9. In the present matter, we are only concerned with the declaration by the said Division Bench in respect of the provisions to Rule 2(i) of Chapter XVII of the Appellate Side Rules being declared ultravires Article 348(1)(a) of the Constitution of India because since the said provision has been struck down it is not possible for both the petitioners before this court to present the Petition with Marathi documents without translation of the same and with a further undertaking to supply the same whenever directed by the court. It has been submitted that there was no challenge by the petitioner in the Writ Petition No.6408 of 2006 to Rule 2 proviso of Chapter XVII. The first objection which we also find as a proper one is that if the court desired to consider the constitutional validity of the proviso to Rule 2 of Chapter XVII, the said Division Bench ought ::: Downloaded on - 09/06/2013 14:25:42 ::: : 11 :
to have issued a Notice to the Advocate General. The Rules framed by this court under it's rule making power either flow from the Constitution and/or Code or Civil Procedure and Criminal Procedure Code and all other enabling provisions in this respect is a legislative power which requires an assent of the Governor and publication by way of a Notification and thus it is a law. If any provisions of the said law is to be declared ultravires to the Constitution, it is obligatory for the court to issue notice to the Advocate General. No doubt in the present matter, when the question was raised during the course of hearing, notice has been issued to the Registrar General of this court, but the fact remains that no notice of the said suo moto initiation of the proceeding to consider validity of Rule 2 proviso of Chapter XVII appears to have been issued to the Advocate General. We have noted that the Associate Advocate General along with Mrs. M.P. Thakur, Assistant Government Pleader appeared for the respondents No.3 and 4 in the proceedings, but since there was no notice to the Advocate General, his appearance would have to be treated for the parties and not for the Advocate General of the State of Maharashtra so as to oppose the point raised for consideration viz.
the constitutional validity of Chapter XVII Rule 2 proviso.::: Downloaded on - 09/06/2013 14:25:42 :::
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10. The learned counsel appearing for the
applicant submitted that the court has held the said
provision unconstitutional in view of Article 348.
However, he submitted that Article 348 starts with a non obstante clause in respect of the foregoing provisions of this Part and, therefore, he submitted that the said non obstante clause will operate in respect of the provisions contained in Part XVII of the Constitution of India which deals with the official language. He then submitted that the said non obstante clause will apply as against ig Articles 343 to 347. He submitted that, however, the said non obstante clause will not operate as against Article 350 contained in Chapter IV of Part XVII of the Constitution. He submitted that Article 350 deals with the language to be used in the representation for the redressal of grievances and submitted that every person is entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be. Thus, he developed an argument that a Petition submitted by a citizen to this court is a representation for the redressal of his grievances and, therefore, the petitioner is entitled to submit the said grievance in any of the languages used in the State. He ::: Downloaded on - 09/06/2013 14:25:42 ::: : 13 :
submitted that Marathi is a language used in the State of Maharashtra which has been declared by the State of Maharashtra as an official language of the state under Article 345. By making a reference to Article 39-A, he submitted that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. He submitted that the translation requires cost and sometimes, huge costs. He further submitted that if the Judge concerned knows the language of the citizen viz. Marathi then a better justice can be delivered than to understand the said document by a translation. He submitted that the translation may be as nearly as possible to the intent of the Marathi document, but it cannot convey the exact intent and the purport of the said document merely by translation. He, therefore, submitted that the access to the justice means an effective understanding of the grievance of the petitioner by the Judge so that proper justice is delivered after understanding the pleadings and the documents produced by the parties. He submitted that the translation howsoever good, is secondary to that of the original. He submitted that the translation ::: Downloaded on - 09/06/2013 14:25:42 ::: : 14 :
is twice removed from its originality even though it may appear like the original. He, therefore, submitted that in a justice delivery system, if the document produced is appreciated by the court, the court may reach nearer or closer to the justice than it would by following the translated document. He submitted that Article 348 provides that all proceedings before the High Court shall be in English language, but he submitted that sub-article (2) of Article 348 provides that the Governor may, with the previous sanction of the President, authorise the use of Hindi language or any other language can be permitted as stated in sub-article (2). Yet, the proviso to the said sub-article states that so far as the judgment, decree or order passed or made by such High Court, nothing will apply from the said clause. He submitted that, therefore, ultimately even if the other official language used in the State is allowed to be used in the proceeding, the judgment, decree and order passed by the High Court is expected to be in English language only. His submission, therefore, is that so far as the petition and documents are concerned, it is a matter concerning the parties to the proceedings. However, the judgment, decree and order which is a matter pertaining to the Judges and their performance of duty has been provided for in English and to that extent, English language has been maintained.::: Downloaded on - 09/06/2013 14:25:42 :::
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He further submitted that this exceptional proviso has
been maintained in order to overcome the difficult
problems which are likely to arise as stated by M.P.
Jain in his book "Indian Constitutional Law" which has
been referred to in paragraph 12 of the Division Bench
judgment. However, he submitted that if the official
language and/or Hindi is used by the parties to approach the High Court and even if they produce the documents in the official languages or in Marathi language, there would not be any difficulty as expressed by M.P. Jain and approved by the Division Bench because the pleadings of the parties and the documents which is a part of the proceedings of this court are never the precedents or the ratio decidendi or even the obiter dicta and, therefore, the learned counsel submitted that part of the proceedings if it is in the official language and more specifically as the issue in the present matter is in respect of the annexures placed in Marathi language, there would not be a violation of Article 348 because Article 350 permits such a filing of the Petition.
11. He specifically invited our attention to Chapter IV Rule 3 of the High Court Appellate Side Rules which provide that the memorandum of appeal, cross-objections, applications or petitions presented by the party personally may be either in Marathi or Hindi ::: Downloaded on - 09/06/2013 14:25:42 ::: : 16 :
or in English. The proviso to the said Rule states that the party or an Advocate shall be required to put at his expense official translation of the same in English whenever a specific order in that respect is passed. He also invited our attention to Rule 5 from the said Chapter wherein if the proceeding is filed through the Advocate, it shall be in English. Thus, he submitted that Rule 3 has been drafted in consonance with Article 350 of the Constitution. His emphasis was that the proviso to Rule 2 of Chapter XVII is also in consonance with Article 350 and he submitted that Article 348 has no over-riding effect over Article 350 and, therefore, the grievance of the petitioner that the official language i.e. Marathi language can be entertained by the court and that will be in consonance with his right of access to justice which has been guaranteed by the Constitution. He ultimately submitted that under these circumstances, the view and the finding which has been expressed by the Division Bench in Writ Petition No.6408 of 2006 requires re-consideration. The other counsel appearing in the other Petition and for the Intervenors supported the counsel for the petitioner.
12. We have already noted that the issue of validity of the proviso Rule 2 to Chapter XVII has been dealt with by the Division Bench without issuing a ::: Downloaded on - 09/06/2013 14:25:42 ::: : 17 :
Notice to the Advocate General which is one of the requirement whenever the constitutional validity of Indian law or provision of Rule is under challenge.
Apart from this, what we notice is that The Bombay High Court Appellate Side Rules, 1960 and The Bombay High Court (Original Side) Rules have been framed by this court under Article 225 of the Constitution of India and sections 122, 125 and 129 of the Code of Civil Procedure and with all other enabling provisions in this respect provided in the various Statutes. Under Article 225, this High Court being an existing High Court, the respective powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts shall be the same as immediately before the commencement of this Constitution. Therefore, under Article 225, the power to make rules of the court is with the High Court and Judges of the High Court. As per section 117 of the Code of Civil Procedure, save as provided in this Part (Part IX) or in Part X or in the Rules the provisions of the Code shall apply to High Courts. Section 122 provides that the High Courts may, from time to time, after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts ::: Downloaded on - 09/06/2013 14:25:42 ::: : 18 :
subject to their superintendence and may by such Rules annul, alter or add to all or any of the Rules in the First Schedule. Section 123 contemplates a committee to be constituted for the Rule making. Under Section 124, the said Committee shall make a report to the High Court established at the town at which is constituted on any proposal, to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration. Under Section 126, the rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of the Central Government. Section 127 contemplates that the rules so made and approved shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule. So far as the criminal matters are concerned, under section 477 of the Code of Criminal Procedure, the High Court may, with the previous approval of the State Government, make rules as provided in the said section. Therefore, what is to be ::: Downloaded on - 09/06/2013 14:25:42 ::: : 19 :
noted is that under these rule making powers, the Appellate Side Rules and the Original Side Rules have been framed by the High Court and they are on the statute book.
13. It was nobody's case that the procedure as required under these provisions was not followed. On the contrary, we note that the Affidavit has been filed by the Registrar (Legal) that under these rule making powers, the rules have been framed. The issue under consideration was as to whether the said proviso is violative of Article 348 and before striking down the rule, the notice was issued to the Advocate General.
However, nothing has been pointed out whether the proviso was pursuant to the decision of the Rules Committee if the proviso was made in exercise of the powers under section 122 of the Code of Civil Procedure.
In fact, there is a presumption of law in favour of the said procedure being followed and it was for the party who asserts that the said procedure has not been followed to bring on record the facts which will show that the said procedure as provided under section 122 was not followed while inserting the said proviso.
Therefore, we find substance in the contention of the learned counsel that the issue was raised otherwise and it was considered otherwise.
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14. The courts are made for the public at large
and for the redressal of their disputes. It is also
expected that the justice delivery system should be
easily accessible to the citizens and justice should be
delivered at the lowest possible cost. Therefore, the
easy access, cheaper justice system and speedy decision
are the best factors of any judicial system from the
view point of the citizen. Any citizen is better placed
in expression in his own language. However, we are not
called upon to venture upon this larger issue. We have
to
consider the Rules which provide filing of annexures in proceedings before this court in Marathi with an undertaking to the court that whenever the court directs, the translation will be submitted. Before we consider this aspect, we would like refer to certain Rules of the Appellate Side. They are as listed below:
"(1) Chapter IV, Rule 3 : Language of proceedings presented by party in person. - The memoranda of appeals, cross-objections, applications or petitions presented by the party personally may be either in Marathi or Hindi or in English;
[Provided that the party or the Advocate shall be required to put at his expense official translation of the same in English whenever a specific order in that respect is passed.] (2) Chapter IV, Rule 5 : Language and other requirements of proceedings presented by ::: Downloaded on - 09/06/2013 14:25:42 ::: : 21 :
Advocates. - The memoranda of appeals, cross-objections, applications or petitions presented by Advocates shall be in English, and shall be signed by the Advocate concerned or by any other Advocate on his behalf provided that the Advocate concerned ratifies the same by affixing to it his signature within one week of the date of its being filed.
(3) Chapter IV Rule 12 : Accompaniments to memorandum of appeal in appeals from appellate decrees. . ..............
(i) ..............
(ii) ..............
(iii) Where, however, any of the accompaniments mentioned in sub-rules (i) and
(ii) are not in English, typed copies of translations in English of such accompaniments shall be annexed.
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (4) Chapter IV Rule 19 :
(i) ........
(ii) .........
(iii) ........
(iii-A)English Translation of accompaniment - Where, however, any of the accompaniments mentioned in sub-rule (i) and (ii) are not in English, typed copies of translations in English of such accompaniments shall be annexed: [Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translation would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (5) Chapter IX Rule 1 : Contents and Arrangement of Paper Books in First Appeals. ........
(v) The appellant shall supply for
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inclusion in the paper books the requisite number of copies of translation of documents at items Nos.(3) and (4) in sub-rule (i) and the appellant or the respondent, as the case may be, shall supply the requisite number of copies of the translations of documents referred to in sub-rule (iii) in the manner prescribed in these rules. Where such documents are in English, the appellant or the respondent, as the case may, shall supply the requisite number of typed copies for inclusion in the paper books;
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (6) Chapter IX Rule 2 : ........
(v) The
ig appellant shall supply
inclusion in the paper book the requisite for number of copies of translations of documents at item No.(2) in sub-rule (i) and the appellant or the respondent, as the case may be, shall supply the requisite number of translations of documents referred to in sub-rule (ii). In case of English documents, the appellant or respondent, as the case may be, shall supply the requisite number of copies for being included in the paper books.
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (7) Chapter IX Rule 5. Translations and copies of English documents required to be furnished by parties. - (i) The appellant or the applicant, as the case may be, shall cause to be translated (or copied for the paper book if the documents be in English) not only the documents on which he relies in support of his case, but also the documents on which the Court below, relied in holding against him on those issues on which the findings are challenged by him. The ::: Downloaded on - 09/06/2013 14:25:42 ::: : 23 :
respondent or the opponent will cause to be translated or copied for the paper book such other documents on which he relies.
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (8) Chapter XVII Rule 2 (i): Accompaniments to the application. - The applicant shall annex to his application typed copies of judgments and/or orders of the lower Courts or Tribunals and of affidavits and other relevant documents which are in English, or, where any of such documents are not in English, typed copies of translations in English of such documents. He shall file along with the application a duplicate copy of the application with the said annexures for the use of the Court. Both the original and the duplicate copy with the prescribed annexures shall be duly paged and indexed;
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (9) Chapter XXVI R.25 (iii) : If the memorandum of appeal or petition is not in English, it shall be translated in the Translator's Office. Four typed copies of the translations shall be prepared in that Office;
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.] (10) Chapter XXVII Rule 7.: Petition should be presented to the Chief Justice. - The petition with exhibits annexed thereto and the translations thereof, if any, together with a copy of such petition and exhibits ::: Downloaded on - 09/06/2013 14:25:42 ::: : 24 :
with the translations shall be presented to the Chief Justice, who will constitute a Special Bench and appoint a day for the hearing and determination of the application.
[Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.]"
Rule 620 of The High Court (Original Side) Rules, provides thus:
"620.
620. When documents sent for translation.
- A party to a suit or matter shall, as soon as possible, send to the Chief Translator's office for translation into English any document not in the English language on which he intends to rely at the hearing of the suit or matter. If he fails to do so or sends the same so late that the translation is not ready when the case is called on, the Judge may not allow he said document to be tendered in evidence and may proceed with the hearing of the suit or matter, or he may adjourn the hearing of the suit or matter and pass such order as to the costs of the adjournment and of the translation as he may deem fit."
Under Rule 611 of The High Court (Original Side) Rules, the Translator's Office has been established in two parts to be supervised by the Prothonotary & Senior Master on the Original Side and the Registrar on the Appellate Side. Other provisions have also been provided for translation of the documents.
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15. All these Rules of the Appellate Side and more specifically the proviso has been added by Notification No.P.3603/1986 dated 6/8/1986. Under these circumstances, when there is a Government Notification published in the Government Gazette, it was not permissible for the court to enter into an area as to whether the Rule making Committee was constituted or not constituted and that was not even an issue before the court. Yet the observation as stated earlier has been made by the Division Bench.
16. If we look at Article 350, Article 348 has no over-riding effect over it. Even though both the Articles are in the same Chapter of the Constitution, the only inference which can be drawn is that the makers of the Constitution have, under the constitutional scheme, purposefully placed Article 350 after Article
348. Article 348 gets an over-riding effect in respect of the foregoing Articles of the said Chapter which commences from Article 343. Therefore, while seeking access to courts, the citizen is entitled to rely upon Article 350 and what we find is that the above referred provisions from the Appellate Side Rules, more specifically the provision like Rule 3 of Chapter IV which permits the citizen to file a memorandum of appeal, cross-objections, applications or the petitions ::: Downloaded on - 09/06/2013 14:25:42 ::: : 26 :
in Marathi, Hindi or English, whenever he presents it personally. Rule 5 of the said Chapter requires an Advocate to file the same documents in English.
However, all the Rules which have been quoted above which speak about the annexures to the Petitions, cross-Petitions, memorandum of appeal or to the applications, criminal appeals etc. to be filed in English but if they are in Marathi they can be filed with an undertaking that English translation would be submitted as and when such orders are passed by the court. Marathi is the official language of the State of Maharashtra.
Most of the transactions in the State of Maharashtra are done in Marathi and, therefore, the proviso has been made at every place as enumerated above that if the document is in Marathi it will be accepted.
However, if, for whatever reason, the court desires that the translation should be submitted then the court will pass an order to that effect and thereafter procedure provides the translation will be placed on record. Even if we look at the procedure on the Original Side, the Original Side procedure does not prohibit production of document in a language other than English. But, it has made a provision that the said document should be translated through the office and copies of the said document shall be made available to the other side. The machinery of the translator has been established on the ::: Downloaded on - 09/06/2013 14:25:42 ::: : 27 :
Appellate Side and Original Side. Only for the purposes of translating the proceedings or the documents which are placed in languages, other than English, it appears that probably in 1986, it was considered that most of the Judges of the Bombay High Court knew Marathi language. If there was any Judge who did not know Marathi he can make an order for translation of the documents and the translation could be made available to him. The purpose of allowing Marathi documents to be filed seems to minimize the costs of litigation to spare time to prepare the translations and to make the justice delivery system easily accessible to the litigants.
Therefore, such a proviso must have been included. This is in consonance with Articles 350 and 39A of the Constitution. This aspect of the matter has not been considered by the Division Bench. The Division Bench only considered Article 348(2), but what we find is that the Division Bench has not, with respect, looked into Articles 350 and 39A of the Constitution of India while considering the vires of the said provision.
17. The Division Bench has considered the Goa, Daman & Diu Reorganization Act of 1947 which is notified as on 30th May, 1987. Section 20 has been quoted by the Division Bench. However, the amendments to the Rules which have been carried out have been carried out by a ::: Downloaded on - 09/06/2013 14:25:42 ::: : 28 :
Notification No.P.3603/86 dated 6th August, 1986.
Therefore, all the amended provisions in the Appellate Side Rules were part and parcel of the Bombay High Court Appellate Side Rules on the appointed date i.e. 30th May, 1987. Sub-section (3) of section 20 of the Goa, Daman & Diu Reorganization Act of 1987 states that on and from the appointed date (30th May, 1987) the common High Court shall have in respect of the territories comprised in the State of Maharashtra, Goa and the Union Territories of Dadra & Nagar Haveli, as also Daman and Diu, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of those territories by the High Court of Bombay. This provision is just akin to Article 225 of the Constitution and, therefore, this being an existing High Court, in view of the above referred provisions, the common High Court has all such jurisdiction, powers and authority as under the law in force immediately before the appointed date as are exercisable in respect of those territories by the High Court of Bombay. On reading both the provisions what we find is that the jurisdiction, power and authority of the Bombay High Court as it existed was preserved in respect of the Common High Court. Therefore, on 30th May, 1987, whatever the Appellate Side Rules and the Original Side Rules that were in existence and were in ::: Downloaded on - 09/06/2013 14:25:42 ::: : 29 :
force became the Rules of the Common High Court. What we, therefore, find is that it would be inappropriate to state that the proviso to Rule 2(i) of Chapter XVII of the High Court Appellate Side Rules does not reflect the present reality viz. the Common High Court for two States as also the Union Territories which have different official languages. On the contrary, what we find on reading section 20 is that the jurisdiction, powers and authority as it existed and was exercisable, has been maintained. With great respect, we are of the view that the matter was not scrutinized in the light of the earlier amendments made in the Rules and the coming into existence of the Common High Court with the same jurisdiction, power and authority in relation to both the territories of State of Maharashtra and State of Goa.
18. Alternatively, even assuming for a moment that reading of section 20 of the Reorganization Act of 1987 and Article 348(1), the provision of Rule 2(i) of Chapter XVII of the High Court Appellate Side Rules does not reflect the present reality viz. Common High Court for two States as also the Union Territories which have different official languages, at the most the amendment in the Rules would be required to be made to the effect that if any document is filed in the official language ::: Downloaded on - 09/06/2013 14:25:42 ::: : 30 :
of Goa or the Union Territories, the said document shall be accepted in the matters or in the courts located in the respective territories. Only because the regional languages of Goa, Dadra Nagar Haveli, Daman & Diu is not reflected in the Rules and that only the Marathi which is the official language of Maharashtra is reflected in the Rules, it cannot be said that the Rule is bad. The regional representation of the official language in order to provide an easy access to justice and avoid expenses of translation could have been provided to the citizens in the respective areas by amending the Rules, but it cannot be said that the other official languages in the Common High Court Rules are not reflected and, therefore, the Rule is bad. We find substance in the submission of the learned counsel that if the judgment, decree and order of the court continues in the English language the problem expressed in M.P. Jain's Indian Constitutional Law can be solved because it will be possible to place the orders of this court passed in English to all other courts in India or outside India, but the petitioners are not concerned with the language of the decree, judgment or the order of this court. The petitioners state that it may continue in English as desired under Article 348. The petitioners are only claiming that they may be allowed to file the annexures in Marathi language which is an official language of ::: Downloaded on - 09/06/2013 14:25:42 ::: : 31 :
Maharashtra and, therefore, their part is related to the Petition or part of the petition viz. the pleadings of the Writ Petition and/or the appeal memorandum, objections, cross-objections and applications. Thereto, the petitioners are making it clear that for whatever reason it is not possible for the Judge to read any annexure in Marathi, they are ready to file an undertaking to file translations in English. Therefore, these Rules which permits the access to justice and representation in their own language as desired in Article 350 are not contrary to Article 348. Article 348 has not been ignored by framing the Rules, but only the relaxation has been provided to the citizen to reduce the cost of litigation by avoiding cost of translation and also a speedy access to justice because the time which is required to prepare the translation is saved by early presentation of the petition alongwith the Marathi translations. Therefore, to what extent Article 348 shall have a rigorous effect in following the procedure of presentation in a particular language is a matter to be considered. What we find is that while interpreting Article 348, it is necessary to keep in mind Article 350 and Article 39A and the scheme for early disposal of the matters, easy access to justice and a financially cheaper system to be provided to the citizens. Delay is one of the topic which is always ::: Downloaded on - 09/06/2013 14:25:42 ::: : 32 :
discussed in courts of law and in public meetings. That can be avoided by presenting the documents in the official language in Marathi and, therefore, we record that the judgment in Writ Petition No.6408 of 2006 requires reconsideration by a larger Bench.
19. Whatever we have considered above is not in the capacity of an appellate authority over a co-ordinate Bench. We are aware of our limitations viz.
whenever we differ or have a different opinion from the earlier expressed view we can only make a reference to a larger Bench for consideration. Therefore, whatever observations which we have made, are with due respect and great honour to the co-ordinate Bench. We humbly say that we have not assessed the previous decision as an appellate authority, as we are not, but we have only placed on record the points which appear to us to have been left out and have not been considered by the co-ordinate Bench while delivering the said judgment.
We are of the opinion that for the reasons which we have stated along with the reasons stated by the co-ordinate Bench of Justice Rebello and Justice Sawant, the matter requires re-consideration keeping in view the public interest at large viz. the litigants who approach courts for getting justice at an affordable cost and ::: Downloaded on - 09/06/2013 14:25:42 ::: : 33 :
earliest point of time.
20. We, therefore, direct the Registrar (Judicial) to place this matter before the Hon'ble Chief Justice to make an appropriate reference to a larger Bench to consider the issues which have been raised by the petitioner.
Sd/-
ig Sd/-
[D.G. KARNIK, J.] [S.B. MHASE, J.]
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