IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2431 of 2011 RAMESH CHAND @ RAMESH CHANDRA . Versus THE STATE OF BIHAR & ORS . ----------- 2/ 22/2/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner, elected Mukhiya of Gram Panchayat Hilalpur, Vaishali unseating him from the elected post in exercise of executive powers under Section-18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act). Learned counsel for the petitioner submits that the cause shown by the petitioner as contained at Annexure-3 has not been considered in the final order which is cryptic and unreasoned. The defence that the Mukhiya alone could not be singled out in an act of collective responsibility has not even been considered. The comments of the District Magistrate on the cause shown by the petitioner and on which the Secretary has relied was not made available to the petitioner with an opportunity to rebut the same. The allegations were singular in nature for appointing one candidate as „Angan Bari Sevika‟ wrongly. Learned counsel for the State points out from 2 the impugned order dated 18.1.2011 that he acknowledges having made the appointments in question as noticed in paragraph-3 of the order. He next prays for adjournment to file counter affidavit. When a statutory authority passes an order in exercise of statutory powers, the order has to be tested on the basis of the recitals contained in the order and no counter affidavit can supplement the same to explain what were the reasons passing the mind of the authority. Consequently, a good order cannot be set at naught by a counter affidavit. The petitioner in his show cause took the specific defence of collective responsibility and that the decision for the appointments from the general category was taken collectively in presence of the departmental Supervisor, the departmental Officer, the C.D.P.O. who concurred with the appointments. It was pointed out that if wrong appointments were being made, as is now alleged, the Government functionaries should have objected there and then rather than signed the proceedings in confirmation. There are no allegations of any mala fides against the petitioner. The final order dated 18.1.2011 at paragraph-3 notices the defence of collective responsibility taken by the petitioner, but refuses to deal with it. It further relies upon the comments furnished by 3 the District Magistrate on the cause shown by the petitioner to indict the petitioner without furnishing the copies of the same to the petitioner with an opportunity to rebut the same amounting to admission of evidence behind his back. In AIR 2001 S.C. 2524 (Tarlochan Dev Sharma. Vs. State of Punjab) discussing the status of an elected person as distinct from one appointed and the meaning of the words abuse of powers/misconduct, that a single act shall not suffice, it has been held as follows at paragraph-6 and 10 as follows: “6. In a democracy governed by 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. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. 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. “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 4 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 C.W.J.C. No.18905/2000 it has been held that a personal hearing has to be provided under Section-18(5) of the Act considering the serious consequences that ensue. It has further been held that the comments of the District Magistrate on the cause shown had mandatorily had to be furnished before it can be taken into account in the final order. Failure to do so amounts to admitting evidence behind the back vitiating the final order. 5 The Court considers the aforesaid sufficient grounds violating the reasonable opportunity provided for under the Act to hold that the order dated 18.1.2011 stands vitiated particularly when the consequences are as serious as debarring the petitioners from contesting elections afresh for the next five years. The order dated 18.1.2011 is set aside. The application is allowed. KC ( Navin Sinha, J.)