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2010 DIGILAW 325 (PAT)

Anita Devi v. State Of Bihar

2010-03-10

NAVANITI PRASAD SINGH

body2010
JUDGEMENT 1. The petitioner is elected Mukhiya of Gram Panchayat-Shitalpur of Azamnagar Circle in the district of Katihar. She has filed this writ application challenging the order dated 1.12.2009 passed by the State Government removing her in terms of Section 18(5) of the Bihar Panchayat Raj Act. The impugned order is contained in Annexure-16. 2. Having heard the learned counsel for the petitioner and learned counsel for the State and with their consent, the writ petition is being disposed of at this stage itself. 3. Under the Act, a Mukhiya is a democratically elected head of the local self-Government. He is neither an employee of the State nor an officer subordinate to any State official. He heads local self- Government. He can demit the office in three situations either by resigning himself or consequent to vote of no confidence expressed by members in the House (Panchayat) or in exceptional case by exercise of power under Section 18(5) of the Act by the State Government. This Court has used the expression exceptional case as being an elected member and not an employee of the State nor subordinate to any State officials, the power to remove otherwise than in a democratic process is an extreme power that is being conferred. A removal under Section 18(5) of the Act not only removes him from existing post but also debars him from future election. There is no appeal against the said order. The powers are drastic and, thus, must be exercised with due care and caution and not in a mechanical manner. Keeping this in my view as also a recent Supreme Court judgment in the case of Sharda Kailash Mittal V/s. State of Madhya Pradesh and Others since reported in (2010)2 Supreme Court Cases 319 which was rendered under similar circumstances dealing with the provisions of Madhya Pradesh Municipalities Act which judgment has noticed the earlier judgment of the Apex Court in the case of Tarlochan Dev Sharma V/s. State of Punjab since reported in AIR 2001 Supreme Court 2524 wherein Apex Court has held thus: "24.........." 7. In a democracy governed by the rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. ... In a democracy governed by the rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. ... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held." In para-11, the Apex Court further observed: "11.... 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. ... 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." The same consideration must be taken into account while interpreting Section 41-A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer, and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances. 25. For taking action under Section 41-A for removal of the President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office-bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office-bearer. 26. There are no sufficient guidelines in the provisions of Section 41A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation." 4. Here, in the present case, apart from the order clearly showing that it was mechanically passed with little or no application of mind, all that I can say is that the dispute is with regard to payment of wages of one Panchayat Teacher. The Mukhiya maintains that the Teacher was illegally appointed and Mukhiya would not sanction payment of wages to him. State asserts that payment must be made. This has been taken to be an affront by the State officials and that is the solitary ground on which Mukhiya is being removed. I am afraid, an action under Section 18(5) of the Act cannot be taken to resolve such a situation. It was open to the aggrieved Teacher to take recourse to whatever procedure available in law but surely the State could not take upon itself to wield the weapon of Section 18(5) to coerce the Mukhiya into taking a decision to which she is not agreeable. Surely, that is not the scope of Section 18(5) of the Act. 5. In view of the aforesaid, on this ground alone, the impugned order cannot be sustained and is set aside. The writ application is allowed.