IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2098 of 2011
SUSHILA DEVI .
Versus
THE STATE OF BIHAR & ORS .
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02. 22.02.2011 Heard learned counsel for the petitioner and
learned counsel for the State.
The petitioner, an elected Mukhiya of Gram
Panchayat Raj, Arai -Birdipur, Block- Sinhwara,
District- Darbhanga is aggrieved by her unseating
under Section 18 (5) of the Bihar Panchayati Raj Act by
order dated 3.1.2011.
Learned counsel for the petitioner denying
the allegations submits that at best it relates to non-
production of records in context of a Government
scheme hindering an enquiry. Even if that were so, the
penalty was too extreme for a solitary Act relying upon
AIR 2001 SUPREME COURT 2524 “Tarlochan Sharma
v. State of Punjab”.
Learned counsel for the State submits that
the petitioner in her reply to the show cause has
virtually acknowledged non-production of the records
by taking the stand that it was not her duty to produce
official records.
The distinction between a person holding an
elected post and an appointed post the connotation of
the words “abuse of power and misconduct”, in context
2
of the same for removal by exercise of executive powers
as distinct from a “No Confidence Motion” in a grass
root democracy has all been discussed in paragraph-
10 of the case relied upon on behalf of the petitioner
holding as follows:-
“10. The expression ‘abuse of powers’ in
the context and setting in which it has been
used cannot mean use of power which may
appear to be simply unreasonable or
inappropriate. It implies a wilful abuse or an
intentional wrong. An honest though erroneous
exercise of power or an indecision is not an
abuse of power. A decision, action or
instruction may be inconvenient or unpalatable
to the person affected but it would not be an
abuse of power. It must be such an abuse of
power which would render a Councillor
unworthy of holding the office of President.
Inasmuch as an abuse of power would entail
adverse civil consequences, the expression has
to be narrowly construed. Yet again, the
expression employed in S. 22 is ‘abuse of his
powers or habitual failure to perform his
duties.’ The use of plural powers, and the
setting of the expression in the framing of S. 22
is not without significance. It is suggestive of
legislative intent. The phrase ‘abuse of powers’
must take colour from the next following
expression ‘or habitual failure to perform
duties.’ A singular or casual aberration or
failure in exercise of power is not enough; a
course of conduct or plurality of aberration or
failure in exercise of power and that too
involving, dishonesty of intention is ‘abuse of
powers’ within the meaning of S. 22 of the Act.
The legislature could not have intended the
occupant of an elective office, seated by popular
verdict, to be shown exit for a single innocuous
action or error of decision.”
In view of the fact that the allegations only
relate to a single act for alleged non-production of
records, taking the defence that it was for the
3authorities concerned to produce the same the Court
finds it difficult to sustain the impugned order in light
of the law laid down by the Supreme Court.
The order dated 3.1.2011 is accordingly set
aside.
The application stands allowed.
P.K. ( Navin Sinha, J.)