IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2098 of 2011 SUSHILA DEVI . Versus THE STATE OF BIHAR & ORS . ----------- 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 3 authorities 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.)