IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2332 of 2010 1. Ram Saran Paswan S/O Late Nandu Paswan R/O Vill.- Sondiha, P.S.- Sarmera, Distt.- Nalanda Versus 1. The State Of Bihar Through The Principal Secretary Panchayati Raj Department, Government Of Bihar, Patna 2. The Secretary Panchayati Raj Department, Government Of Bihar, Patna 3. The Deputy Director (Election) Panchayati Raj Department, Government Of Bihar, Patna 4. The Director Panchayati Raj Department, Government Of Bihar, Patna 5. The District Magistrate Nalanda At Biharsharif 6. The Block Development Officer Sarmera, Distt.- Nalanda ----------- 07/ 24.06.2011 Heard Mr. Basant Kumar Chaudhary, learned counsel appearing on behalf of the petitioner and Mr. Dilip Kumar, Assisting counsel to G.A. 7 for the State and its authorities. The writ petition filed under Article 226 of the Constitution of India questions the order dated 21.12.2009 passed by the respondent Secretary, Panchayati Raj Department, Government of Bihar in purported exercise of power vested under Section 18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the ‘Act’), whereby and whereunder the petitioner has been removed from the post of Mukhiya, Gram Panchayat Raj-Husaina, Block and P.S. Sarmera in the district of Nalanda. Shorn of unnecessary details the allegations in short which led to the proceeding in question is that on an enquiry being made by the Block Development Officer, 2 Sarmera, it was ascertained that the entry made in the measurement book with regard to certain work having been carried out under the ‘NAREGA’ Scheme did not match the actual work carried out at the site. The District Magistrate, respondent no. 4 carried out the enquiry in relation to the allegations set out against the petitioner, copy whereof is placed at Annexure-11 to the writ petition and found them to be correct. The District Magistrate in his report forwarded to the Director, Panchayati Raj mentioned that the petitioner in collusion with others, was involved in defalcation and misappropriation of government money by making incorrect entries in the records. The matter thereafter traveled up to the Secretary, Panchayati Raj Department in terms of Section 18(5) of the Act and who passed the impugned order dated 21.12.2009 (Annexure-1), upholding the finding of the District Magistrate as contained in his report placed at Annexure-11 of the writ petition. Learned counsel for the petitioner raises a very short issue. He submits that even if the allegation as set out in the report of the District Magistrate is assumed to be true, the petitioner was entitled for a copy of the report enabling him to respond to the same. He submits that even the respondent- Secretary before passing the impugned order neither supplied the copy of the report nor was the petitioner given any opportunity to defend his case. He further submits that the entire 3 proceedings leading to the impugned order stands vitiated having been conducted in gross violation of the principles of natural justice. It is submitted that being a case of removal of an elected Mukhiya, the petitioner was entitled to a hearing. He submits that Section 18(5) of the Act providing an extreme and a stringent measure, has to be exercised with due care and caution and which requires a minimum opportunity of hearing to the affected. Learned counsel in support of his submission relies upon a Bench decision of this Court reported in 2011(2) P.L.J.R. 681 (Indu Devi Vs. The State of Bihar and Ors.), more particularly paragraph-5 thereof which reads as follows; “5. 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 on sue, 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 rebut 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 4 under Section 18(5) of the Act.” He thus submits that in the circumstances where admittedly the order impugned is in the teeth of the principles of natural justice the same cannot be sustained. He further submits that it is in these circumstances that this Court, while affording opportunity to the State to respond to this basic issue, had granted an interim stay in favour of the petitioner. Though two sets of counter affidavit has been filed, one on behalf of respondent nos. 5 and 6 and the other on behalf of respondent no. 2 who is the Secretary of the Department but unfortunately none of the two orders respond to the issue framed by this Court in its order dated 31.3.2010 requiring the respondents to place on record as to whether the report was handed over to the petitioner and whether the order impugned had been passed after affording reasonable opportunity to the petitioner. In paragraph-10 of the counter affidavit filed on behalf of respondent no. 2, the Secretary of the Department very candidly admits that the order was passed after considering the recommendation of the District Magistrate, Nalanda the explanation of the Mukhiya and the recommendation of the Rural Development Department. It is thus clear beyond doubt that no opportunity much less any reasonable opportunity was provided to the petitioner before passing the order impugned. For the reasons aforesaid, the impugned order cannot be sustained and as a consequence the order dated 5 21.12.2009 passed by the Secretary, Panchayati Raj Department is set aside. This order, however, would not preclude the Secretary, Panchayati Raj Department to proceed further in the matter in accordance with law. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)