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Judgment
Kilam, J.—This is a petition seeking a writ of Mandamus or certiorari against the non-applicant (respondent) and takes its stand on the
following grounds:
(a) that the Petitioner is a state subject and a citizen of India.
(b) that he filed his nomination paper as a candidate for election to the Panchayat Maghian on 17th December 1955.
(c) that the Respondent 2 by his order dated 17th December 1955, rejected the petitioner's nomination paper on the ground that ""he was
connected with a money lending family and was the son of Pandit Ganga Nath.
(d) that this order purports to have been passed u/s 7(b) of the Panchayat Act which according to the Petitioner is inconsistent with the provisions
of Arte, 13, 14 and 15 of the Constitution of India.
(e) Even as it is, according to the petitioner's submission the order passed by Respondent No. 2 is not covered by Section 7(b). and is ultra vires
of this powers.
In his objections the only point urged by the learned Advocate-General with some amount of seriousness is that the Petitioner has another
remedy of appeal open to him and as such this writ petition is not competent.
Before embarking upon a discussion of the relevant section, i.e., Section 7 of the Panchayat Act, I think I might deal with the point that ""in view
of another remedy of appeal open to the Petitioner this writ petition is not competent."" It is sure that ordinarily a writ petition cannot be considered
before the Petitioner has exhausted all remedies provided by the Statute. But there is one condition attached to it, and that is that the remedy must
be adequate. In the present case, the Petitioner wants a declaration to the effect that Section 7(b) of the Village Panchayat Act is ultra vires of the
powers of the legislature which enacted it, and as such void. Now can an appeal which an Act provides and which (the Act itself) is sought to be
declared as ultra vires of the powers of the legislature which enacted it be considered as an adequate remedy? This point has been dealt with by
their Lordships of the Supreme Court in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , wherein it has been laid
down:
The remedy under an Act cannot be said to be adequate and is indeed nugatory or useless if the Act which provides for such remedy is itself ultra
vires and void and the principle of another remedy can therefore have no application where a party comes to court with an allegation that his right
has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void and
prays for appropriate relief under Article 226.
Applying the principle enunciated in this authoritative pronouncement to the facts of the present case, I find that the Petitioner having invoked the
extraordinary jurisdiction of this Court on the ground that Section 7(b) of the Panchayat Act is ultra vires of the powers of the legislature, the
remedy of appeal provided by this Act cannot be said to provide an adequate relief. Taking all this into consideration, I hold that the Petitioner
under the circumstances of the present case had a right to come directly to this Court for the purpose of securing a writ.
But then having decided this point in favour of the petitioner, we have again to see whether Sub-clause (b) of Section 7 is ultra vires of the
powers of the legislature. It has been submitted on behalf of the Petitioner that Section 7(b) denies equal protection of law and equality before the
law to the members of the money lending class. The learned Counsel has elaborated this point further with the submission that money lending is a
profession not forbidden by law and as such no discrimination should be made against an individual who follows the profession of money lending.
The argument on the face of it might appear to be very sound, but when probed a bit deeper, one can easily find that the distinction drawn between
the money lending class and other people living in a locality is founded on what is known as an ""intelligible differentia"". It has been pointed out by
the Supreme Court in Bidi Supply Co. Vs. The Union of India (UOI) and Others, , that:
It is now well-established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In
order, however, to pass the test of permissible classification two conditions must be fulfilled namely (1) that the classification must be founded on
an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia
must have a rational relation to the object sought to be achieved by the Statute in question. The classification may be founded on different bases,
namely geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration. It is also well-established that Article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.
Now classification can be made according to the objects or occupation of the people. According to the Supreme Court pronouncement,
classification can be validly made on geographical grounds or according to the occupations of different sections of the public. Now a reference to
the preamble to the Village Panchayat Act would show that this Act has been framed to make better provision for village administration and
development. Even though money-lending as a profession has not been banned cither by law or Constitution, yet it cannot be denied that
agriculturist communities and money lending classes have come into conflict with each other at various places. In recent years a number of
enactments have been framed to give relief to the rural population from indebtedness and therefore the anxiety of the legislature to see that in village
administrations the rural population should have opportunity to proceed with rural development work unhampered and without intrusion by classes
which in the opinion of the legislature are not very sympathetically disposed towards them, can fully be appreciated and understood. I, therefore,
do not find that Section 7(b) of the Panchayat Act involves such a discrimination as would be hit by Article 14 of the Constitution of India.
But then the question remains as to whether in having deprived the Petitioner of the right to stand for election, the Respondent No. 2 was acting
within his jurisdiction. u/s 7(b) a person shall be disqualified from being chosen as a member of Panchayat if he is a money-lender by profession. If
the concerned authority is subjectively convinced and comes to the definite finding that the Petitioner is in fact a money lender and carries on the
business of money lending, then his jurisdiction to deprive the Petitioner of his right to stand for election cannot be challenged. But in the present
case the order that has been passed is: (Quotation in Urdu is omitted), which when rendered into English would mean:
I have got information that the applicant is connected with a money lending family and is the son of Ganga Nath. His application for being
nominated as a candidate is rejected u/s 7 of the Panchayat Regulation.
In the first instance, there is no enactment of the name of Panchayat Regulation in force in the State. The Act in force here is known as the
Village Panchayat Act, 2008. It indeed would provide a good bit of amusement to know that the person who administers an Act does not know
even the correct name of the Act he administers. Any way, it should have been found in definite terms that the Petitioner was a money lender by
profession. Merely having some sort of a connection with a money lending family would not mean that he is a money lender by profession. Then
again it has been observed in the said order that the Petitioner is a son of Ganga Nath. Section 7 does not provide that being the son of a particular
individual is a disqualification for standing for election to a Panchayat. We, therefore, find that the order passed by Respondent 2 is not covered by
any law in force in the State, and is in fact ultra vires of his powers as detailed in Section 7 of the Panchayat Act. We, therefore, order that the
order of 17th December 1956 passed by Respondent No. 2 is hereby quashed and that the petitioner's right to stand for election shall be
recognized and he must be provided with an opportunity to stand for election to the membership of the Panchayat Mangian, unless at the time of
scrutiny he is found hit by any disqualifications detailed in Section 7(b) of the Panchayat Act.
Shahmiri, J.
I agree.