IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.16105 of 2010
1. MAHADEO DAS S/O LATE SAHTU DAS R/O VILL.- GARHA, P.S.-
RUNI SAIDPUR, DISTT.- SITAMARHI
Versus
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY
PANCHAYATI RAJ DEPARTMENT, BIHAR, PATNA
2. THE DISTRICT MAGISTRATE, SITAMARHI
3. THE DEPUTY DEVELOPMENT COMMISSIONER, SITAMARHI
4. THE DISTRICT PANCHAYAT RAJ OFFICER, SITAMARHI
5. THE SUB DIVISIONAL OFFICER, SITAMARHI, SADAR,
SITAMARHI
6. THE BLOCK DEVELOPMENT OFFICER, RUNNI SAIDPUR,
DISTT.- SITAMARHI
-----------
2. 22.02.2011 Heard learned counsel for the petitioner and
the State.
The petitioner is stated to be the Mukhiya of
the Bahilbada @ Gadha Gram Panchayat, Block-Runi
Saidpur, District-Sitamarhi. He is aggrieved by the order
dated 27.8.2010 unseating him from the post of Mukhiya
in exercise of powers under Section 18(5) of the Bihar
Panchayat Raj Act, 2006 (hereinafter called the ‘Act’)
passed by the Principal Secretary, Department of
Panchayati Raj.
Relying upon A.I.R. 2001 SC 2524 (Tarlochan
Dev Sharma Vs. State of Punjab & Ors.) it is submitted
that removal of an elected Mukhiya in exercise of
executive powers as distinct from a no-confidence motion
and debarring him from contesting election for the next
five years is a serious matter. The impugned order
2
suffers from serious procedural infirmities. The
comments of the District Magistrate on the cause shown
by the petitioner was not made available to the petitioner
with opportunity to rebutt the same. The Secretary has
relied upon these comments to reject the defence of the
petitioner for indicting him. Evidence has therefore been
admitted behind his back denying him reasonable
opportunity to defend himself as enshrined in Section
18(5) of the Act. It is next submitted in so far as charge
no. 1 is concerned, the impugned order recites that the
District Magistrate had found the cause shown by the
petitioner to be unsatisfactory. There is no finding of the
statutory authority by his own independent application of
mind. The order therefore suffers from the vice of
abdication of statutory power acting at the dictates of the
District Magistrate. With regard to charge no. 2, it is
submitted that the comments furnished by the District
Magistrate themselves did not satisfy the Secretary when
he holds that it was not clear as to what exactly was the
amount sanctioned, the amount which was allegedly mis-
utilized to arrive at a speculative finding on assumptions
and presumptions.
Counsel for the State finds it difficult to
satisfy the Court from the recitals in the order dated
27.8.2010 of independent application of mind by the
3
statutory authority on charge no. 1 or that the comments
of the District Magistrate relied upon by the Secretary to
indict the petitioner were furnished to the petitioner.
Likewise, the Court finds that in so far as charge no. 2 is
concerned, the Secretary himself states that the facts
were not clear with regard to the allocation made and the
alleged amount of diversion etc. Counsel for the State
submits that the matter may be remitted to the Secretary
to pass fresh orders in accordance with law.
The Court in C.W.J.C. No. 10659 of 2009
(Narayan Pd. Viswas) and C.W.J.C. No. 18905 of 2010
(Vijay Singh Vs. State of Bihar) has already discussed the
issues at length of the nature of power and its manner of
exercise under Section 18(5) of the Act.
If a statutory authority passes an order in
exercise of statutory powers, such an order has to be
passed within the confines of the statutory jurisdiction.
If the authority exceeds the jurisdiction or abdicates it
and the order visit an elected person with serious
consequence of the nature noticed above, it is not for the
Court to give any directions. When an order is
challenged before a Court it is required to pronounce on
its validity/invalidity. The principal followed in a
departmental proceeding to remand the matter for
passing fresh orders in accordance with law from the
4
stage of illegality shall not apply in the present facts. The
order dated 27.8.2010 is therefore set aside. What the
respondents may wish to do is their statutory jurisdiction
and not for the Court to direct.
The writ application stands allowed.
P. Kumar ( Navin Sinha, J.)