IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2882 of 2011 INDU DEVI . Versus THE STATE OF BIHAR & ORS . For the Petitioner:- Mr. Shashi Bhushan Kumar Mangalam & Mrs. Anita Kumari, Advocates For the State:- Mr. Pushkar Narain Shahi, AAG-XIV & Mr. Ritesh Kumar No.1, AC to AAG-XIV ----------- 02. 22.02.2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner, an elected Mukhiya of Gram Panchayati Raj, Mujauna, Block- Dariyapur, District- Saran at Chapra is aggrieved by the order dated 3.2.2011 unseating her from the post in exercise of executive powers under Section 18 (5) of the Bihar Panchayati Raj Act (hereinafter referred to as the Act). It is submitted that the allegations related to stoppage of salary and cancellation of appointment of a Teacher, solitary in nature. The petitioner was not given a personal hearing. The comments of the District Magistrate on the cause shown by her have been relied upon to indict her without giving a copy of the same with an opportunity to rebutt. Learned counsel for the State submits that a show cause notice was given to the petitioner along with preliminary enquiry report. She filed her reply. 2 Thereafter the final order has been passed. There is no infirmity in the decision making process warranting interference. This Court in C.W.J.C. No. 18905 of 2010 has already held that when an elected person is sought to be unseated not by a “No Confidence Motion” but by use of executive powers, considering the consequences that onsue, more particularly debarring the person from contesting election for the next five years, personal hearing has to be read into under Section 18 (5) of the Act. If the final order relies upon the comments of the District Magistrate, in response to the cause shown by the petitioner without furnishing copy thereof to the petitioner with opportunity to rebutt the same, clearly evidence has been taken behind the back of the petitioner to indict her, which does not fulfill the requirements of “reasonable opportunity” provided for under Section 18 (5) of the Act. The allegations relate to a solitary Act of stoppage of salary. The defence was of collective responsibility. The Supreme Court in AIR 2001 SUPREME COURT 2524 "Tarlochan Dev Sharma v. State of Punjab" explaining the meaning of the words “abuse of powers and misconduct” in context of a similar provision under the Punjab Municipal Act has 3 held at paragraph-10 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 light of the aforesaid discussion, the 4 impugned order dated 3.2.2011 is not sustainable. It is accordingly set aside. The writ application stands allowed. P.K. ( Navin Sinha, J.)