JAI KRISHEN Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition seeking a writ of Mandamus or certiorari against the non -applicant respondent and takes its stand on the following grounds:

(2.) 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.

(3.) BEFORE embarking upon a discussion of the relevant section, i. e., S. 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 S. 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 Bengal Immunity Co. Ltd. v. State of Bihar, S AIR 1955 SC 661 A, 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 Art. 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 S. 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.