IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2666 of 2011 BINAY KUMAR RAI . Versus THE STATE OF BIHAR & ORS . ----------- 02. 04.03.2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is stated to be an elected Mukhiya of Panchayat Raj- Dedhpura, Block- Mahnar, District- Vaishali. He is aggrieved by the order dated 19.1.2011 passed by the Secretary, Pachayatati Raj unseating him from the post in exercise of powers under Section 18 (5) of the Panchayati Raj Act, 2006 (hereinafter referred to as the Act). Learned counsel for the petitioner submits that the allegation relate to one solitary transaction of a wrong appointment of an Anganwari Sewika allegedly contrary to the dominant caste in the captive area. The petitioner in his reply to the show cause notice at page-2 in the last paragraph had specifically asserted that the selection committee, apart from him, consisted of others, including three Government servants, the C.D.P.O., an Officer nominated by the District Magistrate and the Headmaster/In-charge Teacher of the nearest Middle School. It was therefore not his independent decision. This ground has not been considered in the impugned order. It is next 2 submitted that one solitary act of an alleged wrong appointment, in a wrong exercise of decision making taken collectively cannot be the foundation for an order against an elected person under Section 18 (5) of the Act as held in AIR 2001 SC 2524 (Tarlochan Dev Sharma Versus the State of Punjab). It is next submitted that the order by the statutory authority is unreasoned, non-speaking, displaying no consideration, abdicating statutory powers acting at the behest of the District Magistrate. Learned counsel for the State is unable to satisfy the Court why the law laid down by the Supreme Court in the case of Tarlochan Dev Sharma (supra) is not applicable in the case from the discussions in the impugned order holding 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 3 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 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 (2010) 2 SCC 319(Sharda Kailash Mittal v. State of M.P) following the case of Tarlochan Dev 4 Sharma it has been held at paragraph 27 as follows:- “27. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41-A.” The Court has considered the impugned order dated 19.1.2011. It is unreasoned and non- speaking in nature. Merely because the District Magistrate may have said so in his comments on the cause shown by the petitioner, the statutory authority abdicates his individual decision making to act at the behest of the District Magistrate. There has been complete abdication of statutory jurisdiction. There is no discussion by the statutory authority of the allegation, the defence, the comments of the District Magistrate, followed by a brief discussion showing application of mind by the statutory authority with findings for a particular conclusion arrived at by him. The law vitiating such an order stand explained in 1952 SCR 135 (Commr. of Police v. Gordhandas Bhanji) has held at paragraphs 10, 11 and 13 as follows:- “10. It will be necessary at this stage to determine whether this was a cancellation by the Commissioner on his own authority acting in the exercise of some power which was either vested in him or of which he bona 5 fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other authority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely intimation by him of an order passed and made by another authority, namely, the Government of Bombay. 11. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 13. If the Commissioner of Police had the power to cancel the license already granted and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.” If the statutory authority persists and insists on passing orders contrary to the well settled law, ignoring its duties and responsibilities given in trust as noticed in paragraph 15 of Tarlochan Dev Sharma (supra) the court has no option but to set aside such 6 orders. The order dated 19.01.2011 is accordingly set aside. The application stands allowed. P.K. ( Navin Sinha, J.)