Rajasthan High Court - Jaipur
Bahujan Samaj Party vs Honble Speaker, Rajasthan Legislative ... on 6 August, 2020
Bench: Chief Justice, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 510/2020
1. Bahujan Samaj Party, Through Its National General
Secretary Satish Chandra Misra, Having Its Central Office
At 4, Gurudwara, Rakabganj Road, New Delhi
2. Bahujan Samaj Party, State Unit, Rajasthan Through Its
State President Bhagwan Singh Baba, Son Of Sri Prabhati
Lal, Resident Of D-170C, Bhargu Marg, Bani Park, Jaipur,
Rajasthan.
----Appellants
Versus
1. Hon'ble Speaker, Rajasthan Legislative Assembly, Jaipur
Rajasthan.
2. Secretary, Rajasthan Legislative Assembly, Jaipur,
Rajasthan.
3. Shri Rajendra Singh Gudha S/o Not Known, Member
Legislative Assembly, Rajasthan, Udaipurwati
(Jhunjhunu), Resident Of Ward No. 2, Gudha, Tehsil
Udaipurwati, District Jhunjhunu, Rajasthan.
4. Shri Lakhan Singh Karaul S/o Not Known, Member
Legislative Assembly, Rajasthan, Resident Of House No.
464, Sarya Ka Pura, Khadkhad, Tehsil Hindaun, City And
District Karauli, Rajasthan.
5. Shri Deep Chand S/o Not Known, Member Legislative
Assembly, Rajasthan, Kishangarh Bas (Alwar) Resident Of
Village Jatka, Post Mahud, Tehil Kishangarhbass, District
Alwar, Rajasthan.
6. Shri Joginder Singh Awana S/o Not Known, Member
Legislative Assembly, Rajasthan, Nadbai (Bharatpur)
Resident Of D-256, Sector-20, Noida, Gautambuddh
Nagar, U.p.
7. Shri Sandeep Kumar S/o Not Known, Member Legislative
Assembly, Rajasthan, Tijara (Alwar) Resident Of Village
Thada, Post Sithal, Tehsil Tijara, District Alwar, Rajasthan.
8. Shri Wajib Ali S/o Not Known, Member Legislative
Assembly, Rajasthan Nagar (Bharatpur) Resident Of
House No. 468, Fakiran Mohallan, Sikari Patti, Ansick
Nagar, Bharatpur, District Bharatpur, Rajasthan.
----Respondents
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(2 of 7) [SAW-510/2020] D.B. Special Appeal Writ No. 511/2020 Sh. Madan Dilawar S/o Sh. Madholal, Mla, H.no. 4-E-7, Rangbari Yojna, Kota (Raj.)
----Appellant Versus
1. The Hon'ble Speaker, Rajasthan Legislative Assembly, Jaipur, Rajasthan.
2. Sh. Lakhan Singh S/o Jagan, Karoli (155), R/o House No. 464, Sarya Ka Pura Khadkhad, Teh. Hindon, District Karoli (Raj.)
3. Sh. Rajender Singh Guda S/o Madho Singh, Udyapurvati (139), R/o Ward No. 2, Guda, Teh. Udyapurvati, District Jhunjhunu, Rajasthan.
4. Sh. Deepchand S/o Baluram, Kishangadbas (71), R/o Gram Jatka, Post- Mahund, Teh. Kishangarh Bas, District Albar, Rajasthan.
5. Sh. Joginder Singh Avana S/o Girwar Singh, Nadbai (62) R/o B-256, Sector-50, Noida, Gautam Budh Nagar, Uttar Pradesh.
6. Sh. Sandeep Kumar S/o Balwant, Tijara (174), R/o Gram Thada, Post- Sital, Teh.- Tijara, District- Alwar, Rajasthan.
7. Sh. Vajib Ali S/o Sher Mohammad, Nagar (158), R/o House No. 468, Fakiraj Mohala, Sikari Patti, Anshik 4, Nagar, District Bharatpur, Rajasthan.
8. The Secretary, Rajasthan Legislative Assembly, Jaipur, Rajasthan.
9. Mr. C.p. Joshi, Mla S/o Late Sh. Ram Chandra Joshi, At Present Hon'ble Speaker Rajasthan Legislative Assembly 49, Civil Lines, Jaipur-302 006.
10. Bahujan Samaj Party, Through Its National General Secretary, Shri Satish Chand Mishra, Having Its Central Office At 4, Gurudwara Rakab Ganj Road, New Delhi.
----Respondents For Appellant(s) : Mr. S.C. Misra, Senior Advocate through Video Conferencing assisted by Mr. D.K. Garg Mr. Harish Salve, Senior Advocate through Video Conferencing assisted by Mr. Ashish Sharma Mr. Satyapal Jain, Senior Advocate assisted by Mr. Dheeraj Jain through Video Conferencing (Downloaded on 06/08/2020 at 10:00:36 PM) (3 of 7) [SAW-510/2020] For Respondent(s) : Mr. Kapil Sibal, Senior Advocate Mr. Salman Khurshid, Senior Advocate through Video Conferencing assisted by Mr. Prateek Kasliwal, Ms. Supriya Saxena Mr. Sunil Fernandes) Mr. Nizam Pasha ) Ms. Nupur Kumar ) through V.C. Mr. Rohit Jain ) Ms. Priyanka Pareek) HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE PRAKASH GUPTA Order 06/08/2020
1. The aforesaid two special writ appeals came to be filed by the appellants, noted hereinabove, essentially seeking to challenge the order dated 30.07.2020 passed by the Hon'ble Single Judge in S.B.Civil Writ Petition Nos.8056/2020 and 8004/2020. Following orders were passed by the Hon'ble Single Judge on 30.07.2020:-
S.B.Civil Writ Petition No.8056/2020:-
"Issue notice of the writ petition as well as stay application to the respondents. Rule is made returnable by 11.08.2020.
Notices may be given "dasti" to the learned counsel for the petitioners for service."
S.B.Civil Writ Petition No.8004/2020:-
"Issue notice of the writ petition as well as stay application baring respondent No.9. Rule is made returnable by 11.08.2020.
Notices may be given "dasti" to the learned counsel for the petitioner for service."
2. Notices of both the writ-appeals were issued to the Hon'ble Speaker (respondent No.1) vide order dated 05.08.2020. (Downloaded on 06/08/2020 at 10:00:36 PM)
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3. Mr. S.C.Misra, learned Senior Advocate appearing for the appellant Bahujan Samaj Party as well as Mr. Harish Salve, learned Senior Advocate appearing on behalf of appellant Mr. Madan Dilawar submitted that though they had made oral submissions before the Hon'ble Single Judge seeking 'ex-parte' stay of the order of the Hon'ble Speaker impugned before the learned Single Judge, but the Hon'ble Single Judge did not find favour with such a prayer and merely directed notices to be issued on the writ-applications as well as stay-applications and fixed the next date to 11.08.2020.
4. Mr. Misra, learned Senior Advocate further submitted that although directions were issued for service of notices on the respondents "dasti", but since private respondent Nos. 3 to 8 are not available at their official residences and are learnt to be residing in a hotel at Jaisalmer, they have been unable to serve the said private respondents and there is every possibility that on the next date fixed by the Hon'ble Single Judge, the private respondents may avoid service.
5. Mr. Kapil Sibal, learned Senior Advocate appearing for the Hon'ble Speaker (respondent No.1) raised a preliminary objection regarding maintainability of the present writ-appeals. He placed reliance on the judgment of the Division Bench of the Rajasthan High Court in D.B.Sogani & Ors. Vs. Akhil Bharatiya Bank of Rajasthan Karmchari Sangh & Ors., reported in 2000 SCC Online Raj. 53, in support of his contention that the present writ-appeals are not maintainable and in particular he drew attention of the Court to the finding arrived at by the Division Bench of this Court in answer to Question No.2 and in which conclusion in para 26 is quoted herein below:- (Downloaded on 06/08/2020 at 10:00:36 PM)
(5 of 7) [SAW-510/2020] "26. From reading of the operative portion of order impugned quoted hereinabove, we are satisfied that by impugned order, learned Single Judge has not determined the rights and liabilities of the parties finally, therefore, no special appeal lies against such an order under sub-section (1) of Section 18 of the Rajasthan High Court Ordinance, 1949. In our considered opinion, the order impugned under appeal dated 27.9.99, is not a judgment within the meaning of sub-section (1) of Section 18 of Rajasthan High Court Ordinance, 1949, therefore, the appeal is not entertainable. The objection of the office of the Registry of the Court dated 1.10.99, to the effect that the instant special appeal which is preferred against interim order, is not maintainable, is hereby sustained and upheld."
6. Mr. Harish Salve, learned Senior Advocate on the other hand, submitted that the present writ-appeals are maintainable and placed reliance on the judgment of the Hon'ble Apex Court in the case of Shah Babulal Khemji Vs. Jayaben D.Kania & Anr. Reported in (1981) 4 SCC 8. He submits that whether a particular order decides the important rights would depend upon the nature of the order. The principle is that wherever the controversy affects the valuable rights of the parties and the trial Judge decides the same, it must be treated as a judgment. He also referred to Section 18 of the Rajasthan High Court Ordinance, 1949. He further submits that judgment can be of three kinds:- (i) Final judgment (ii) preliminary judgment and (iii) Interlocutory judgment. Mr. Salve submits that in the judgment of Rajasthan High Court, which Mr. Sibal has cited, it was not a case where interim relief was refused.
7. The Court in the course of hearing suggested to the learned counsel for the parties that notices on the private respondents may be served through Secretary of the Rajasthan Legislative Assembly.
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8. To this suggestion, Mr. Kapil Sibal, learned Senior Advocate raised objection and submitted that since the Government of India has issued instructions to the authorities concerned to the effect that Courts of law should not seek to serve a legal process, civil or criminal, on members of Parliament through the Speaker of the Secretariat, the appropriate procedure is for the summons to be served direct on the members concerned outside the precincts of Parliament i.e. at their residence or at some other place.
9. After hearing learned counsel for respective parties physically as well as through Video Conferencing, as noted hereinabove, we are of the considered view that the ends of justice would be best sub-served by the following directions:-
(i) The appellants are directed to take out the notices of S.B.Civil Writ Petition Nos.8056/2020 and 8004/2020 for service by Special Messenger, to ensure service on the private respondents on or before 08.08.2020. The District Judge, Jaisalmer is directed to provide all necessary assistance to the Special Messenger to effect service of such notices, and if required, the District Judge may seek necessary assistance of the Superintendent of Police, Jaisalmer for effecting service on the private respondents who are said to be residing at Jaisalmer.
(ii) We further direct the appellants/writ-petitioners to publish a notice in daily newspaper 'Rajasthan Patrika', Barmer-Jaisalmer Edition. The notice shall indicate the directions issued by the Hon'ble Single Judge dated 30.07.2020.
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(iii) We make it clear that the directions which we are issuing are in the aid of directions issued by the Hon'ble Single Judge and keeping the serious consequences pleaded before us by the appellants' Counsel. We remain confident that the Hon'ble Single Judge will deal with the matter appropriately.
(iv) We remain confident that the Hon'ble Single Judge will hear and dispose of the stay applications filed by the appellants on the same day in accordance with law and without, in any manner, being prejudiced by any directions/observations issued by us hereinabove.
(v) The contentions raised by either parties on the issue of maintainability of the writ-appeals are left open for consideration at appropriate time/case.
10. Both the writ-appeals are accordingly disposed of. All pending applications also stand disposed of. (PRAKASH GUPTA),J (INDRAJIT MAHANTY),CJ KAMLESH KUMAR/HARSHIT/S-75-76 (Downloaded on 06/08/2020 at 10:00:36 PM) Powered by TCPDF (www.tcpdf.org)