IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.9374 of 2010
BINDESHWAR PRASAD, S/O LATE BHAGWAN SAH, R/O VILL.
AND P.O.- BASANTPUR BANGALA, P.S.- AMNOUR, DISTT.-
SARAN AT CHAPRA, PRESENTLY MUKHIYA OF GRAM
PANCHAYAT RAJ, BASNATPUR BANGALA, BLOCK- AMNOUR,
DISTT.- SARAN AT CHAPRA.
.......PETITIONER.
Versus
1. THE STATE OF BIHAR.
2. THE PRINCIPAL SECRETARY, PANCHAYATI RAJ
DEPARTMENT, GOVERNMENT OF BIHAR, PATNA.
3. THE DIRECTOR, PANCHAYATI RAJ DEPARTMENT,
GOVERNMENT OF BIHAR, PATNA.
4. THE DEPUTY DIRECTOR, PANCHAYATI RAJ
DEPARTMENT, GOVERNMENT OF BIHAR, PATNA.
5. THE DISTRICT MAGISTRATE, SARAN AT CHAPRA, DISTT.-
SARAN AT CHAPRA.
6. THE DISTRICT PANCHAYAT RAJ OFFICER, SARAN AT
CHAPRA, DISTT.- SARAN AT CHAPRA.
7. THE DEPUTY COLLECTOR LAND REFORMS, MARHAURA
DISTT.- SARAN AT CHAPRA.
8. THE BLOCK DEVELOPMENT OFFICER, AMNOUR, DISTT.-
SARAN AT CHAPRA.
.....RESPONDENTS.
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For the petitioner : Mr. S.B.K.Manglam, Advocate.
For the State : Mr. Santosh Kumar Singh, S.C.22.
Ms. Kalpana, A.C. to S.C.22.
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ORDER
09/ 01.09.2010 This writ petition has been filed by the petitioner
challenging order dated 27.05.2010 passed by the Principal
Secretary, Panchayati Raj Department, Govt. of Bihar, Patna
(respondent no.2) which was communicated vide memo no.4014
dated 27.05.2010 (Annexure-11) under the signature of the Deputy
Director, Panchayati Raj Department, Govt. of Bihar, Patna
(respondent no.4) by which the petitioner was removed from the
post of Mukhiya of Gram Panchayat Basantpur within Block
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Amnour in the district of Saran under the provision of Section
18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to
as ‘the Act’ for the sake of brevity).
2. Learned counsel for the petitioner argued that the
power under Section 18(5) of the Act has to be exercised by the
executive authorities only when the State Government is armed
with cogent and sufficient materials in support of charges and not
merely on the basis of mere allegation against an elected
representative of the people. In this respect, he relied upon a
decision of the Apex Court in case of Sharda Kailash Mittal Vs.
State of Madhya Pradesh and others, reported in (2010) 2
S.C.C.319.
3. Learned counsel for the petitioner further submitted
that there were no complain from the beneficiaries against the
petitioner and it was only the Panchayat Secretary Dineshwar
Prasad who sent letter dated 19.11.2008 (Annexure-2) along with
affidavit dated 15.11.2008 (Annexure-3) to the District Magistrate,
Saran (respondent no.5) alleging that the Mukhiya (petitioner)
forged the signature of the said Panchayat Secretary and obtained
Indira Awas for 52 persons from the Block Development Officer,
Amnour and by force realised Rs.15,000/- from each of the
beneficiaries and hence it was requested that legal action be taken
against the petitioner. It is also stated that on the same date the
District Magistrate asked the Deputy Collector, Land Reforms,
Marhaura, Saran (respondent no.7) to enquire into the matter and
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report, whereafter the said Deputy Collector made inquiries and
submitted his report dated 03.12.2008 (Annexure-4) to the District
Magistrate recommending legal action against the Mukhiya
(petitioner) and issuance of show cause notice to Block
Development Officer, Amnour, Saran (respondent no.8) for the
irregularities alleged to have been committed by him detailed in
column nos. 1 to 4 of the said report.
4. On the very next date, FIR bearing Amnour P.S.Case
No.67 of 2008 dated 04.12.2008 (Annexure-6) was lodged by the
Anchal Adhikari, Amnour on the directions of the District
Magistrate against Anchal Adhikari, Tariya, the Mukhiya of
Basantpur Gram Panchayat (petitioner), Nazir, Block Development
Office, Amnour, Branch Manager, North Bihar Regional Gramin
Bank, Basantpur and Block Co-operative Extension Officer,
Amnour for offences punishable under Sections 166, 167, 418,
420, 467, 468, 471 and 379 of the Indian Penal Code as well as
Sections 3(2) (v) of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act.
5. Furthermore, the District Magistrate, Saran
(respondent no.5) sent letter dated 04.12.2008 to the Principal
Secretary, Rural Development Department, Bihar, Patna
(respondent no.2) recommending initiation of disciplinary
proceeding against the Block Development Officer, Taraiya and
also stating that with regard to other guilty persons, the District
Magistrate was taking necessary action.
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6. It further transpires that on 31.12.2008, the District
Magistrate, Saran issued show cause notice to the Mukhiya
(petitioner) who sent his detailed show cause on 12.01.2009
(Annexure-5) stating the entire matter in detail and requesting that
he may be discharged from the allegations levelled against him,
which according to him, were absolutely baseless and frivolous
and were levelled only because of enmity.
7. The District Magistrate, Saran sent letter dated
20.03.2009 (Annexure-7) to the Director, Panchayati Raj
Department, Govt. of Bihar (respondent no.3) requesting that steps
for removal of the Mukhiya (petitioner) be taken under the
provision of Section 18(5) of the Act. Thereafter, show cause
notices dated 13.05.2009 (Annexure-9) and 01.06.2009
(Annexure-8) were issued under the signature of Deputy Director,
Panchayati Raj Department, Govt. of Bihar, Patna (respondent
no.4) to the petitioner, where upon the petitioner submitted his
detailed show cause dated 11.06.2009 (Annexure-10) to the
Principal Secretary, Panchayati Raj Department, Govt. of Bihar
(respondent no.2) giving reply on each of the points raised against
the petitioner. Finally, the impugned order dated 27.05.2010
(Annexure-11) was passed by the Secretary, Panchayat Raj
Department, Govt. of Bihar, Patna (respondent no.2) holding that
the allegation against the Mukhiya was proved and hence he was
removed from the post of Mukhiya with immediate effect under
the provision of Section 18(5) of the Act.
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8. Learned counsel for the petitioner submitted that
allegation against the petitioner is that he only assisted the Block
Development Officer and others in noting the names of the
beneficiaries, whereas there was no allegation that the petitioner
had himself forged the signature of the Panchayat Secretary. It is
also argued that no complain had been raised by the beneficiaries
against the Mukhiya (petitioner) for extraction of any money and it
was only the Panchayat Secretary who had raised such objection,
but in the inquiry report also no material had been found with
respect thereto. Learned counsel for the petitioner also argued that
the impugned order of respondent no.2 is contradictory in nature
and was against the materials on record and even the investigating
officer in the police case has submitted its report (Annexure-12)
that allegation against the petitioner appeared to be false.
9. Learned counsel for the petitioner also averred that
the Supreme Court in case of Sharda Kailash Mittal (supra) had
clearly held that holder of office, being democratically elected
office bearer, his removal from office, which is an extreme step,
must be resorted to only in grave and exceptional circumstances
and not for minor irregularities, especially when the action of
removal castes a serious stigma on personal and public life of
office bearer concerned and may even result in his disqualification
to hold office for the next term. Hence, learned counsel for the
petitioner prayed that the impugned action of the authorities is
directly in the teeth of the said decision of the Apex Court.
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10. On the other hand, it is claimed on behalf of the
respondents that the then Panchayat Secretary of Basantpur, Gram
Panchayat gave written application to the then District Magistrate,
Chhapra supported by an affidavit clearly stating that the Mukhiya
(petitioner) after forging his signature had withdrawn money of 52
beneficiaries of Indira Awas Yojna and on information, the Block
Development Officer was not taking any action against him. It is
also averred that the Panchayat Secretary had categorically stated
that the Mukhiya (petitioner) had realised Rs.15,000/- from each
beneficiary and had also stated that the Block Development Officer
had also received money in the said transaction.
11. It is further stated by learned counsel for the
respondents that the facts of the case clearly disclosed that the
Panchayat Secretary recommended names of only few
beneficiaries, but the petitioner named 53 beneficiaries after
forging the signature of the Panchayat Secretary and the
beneficiaries in collusion with the Government officers and out of
them 4 beneficiaries came forward to give statement during inquiry
against the petitioner, whereas rest were all fake persons. Hence,
action taken against the petitioner is quite legal and justified.
12. It was also stated by learned counsel for the
respondents that show cause notice and sufficient opportunities
were given by the District Magistrate as well as by the Panchayati
Raj Department, Govt. of Bihar, Patna to the petitioner to place his
case and the petitioner submitted his show cause before the
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concerned authorities, considering which final order was passed by
the Panchayati Raj Department, which is under challenge in the
instant writ petition.
13. It is further averred that Section 18(5) of the Act
gives ample power to the authorities to take such steps after
observing due process of law and it is quite apparent from the
record that the authorities concerned had adopted the proper
procedure in accordance with law and only thereafter had passed
the impugned order. Hence, the authorities concerned have not
committed either any illegality in law or any irregularity in the
procedure while passing the impugned order.
14. Considering the entire facts and circumstances of
this case as well as the pleadings of the parties and the materials on
record, it is quite apparent that at first the District Magistrate and
thereafter the Panchayati Raj Department had taken all due steps in
the matter and impugned order had been passed after fulfilling all
the formalities, including issuance of show cause notice to the
petitioner and also after considering the show cause of the
petitioner. Merely by showing a report of the investigating officer
in the criminal case the petitioner cannot prove that the entire
proceeding adopted by the authorities was illegal and baseless. In
the said circumstances, this court does not find any illegality or
irregularity in the process adopted by the authorities concerned.
15. Furthermore, it is quite apparent that inquiries were
made in which it was specifically found that some of the
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beneficiaries appeared and gave their statements supporting the
allegation against the petitioner, whereas with respect to the
remaining beneficiaries, it was found that they were fake persons.
This was a very serious allegation against the petitioner who was
the Mukhiya of the Gram Panchayat, but his action was
detrimental to the interest of the people of the Gram Panchayat
which he represented. Hence, it is quite apparent that he not only
committed grave illegality, but also eroded the confidence of the
people who had elected him as their Mukhiya.
16. So far the decision of the Apex court relied upon
by the petitioner in case of Sharda Kailash Mittal (supra) is
concerned, it is quite apparent that the petitioner had not
committed any minor irregularity, rather he had committed a very
serious illegality detrimental to the system of Panchayat Raj and
basic democracy itself. Furthermore, the allegations having been
well proved as is apparent from the impugned order as well as
inquiry report and the communications of the District Magistrate
and other materials available on record, the authority concerned
was quite justified in passing the impugned order against the
petitioner.
17. Accordingly, this court does not find any illegality
in the impugned order nor does it find any merit in this writ
petition which is, accordingly, dismissed.
(S. N. Hussain, J.)
Sunil