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.)