IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10659 of 2009 NARAYAN LAL VISWAS . Versus THE STATE OF BIHAR & ORS . ----------- 3/ 25/01/2011 Heard learned counsel for the petitioner and the State. The petitioner successfully contested elections for the post of Mukhiya in the Gram Panchayat- Pothia Mangauli Gram Panchayat Block- Amour, District- Purnea. He is aggrieved by the order dated 5.10.2007 passed by the Commissioner, Purnea Division, unseating him from his elected post in exercise of powers under Section-18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act). His appeal before the Board of Revenue No.47 of 2007 has been dismissed on 4.8.2009. It is submitted that the petitioner as the Mukhiya was the Chairman of a Selection Committee for appointment of teachers. A person holding Maulvi qualification came to be appointed against a general seat. The matter was brought to attention by the District Superintendent of Education on 8.6.2007. No sooner that the error was detected, a fresh meeting of the Selection Committee was held on 4.6.2007 and the fault rectified by cancelling the appointment. This was a suo motu - 2 - action by the Committee which the petitioner headed. Thus, there was no justification for a show cause issued to him subsequently on 28.8.2007 on allegations of abuse of powers or misconduct. The petitioner filed his reply to the show cause pointing out that no sooner was the error detected, it was rectified. This aspect has not even been noticed by the Commissioner in his order dated 5.10.2007. The admission of the mistake by the petitioner, has been held by the Commissioner and the Appellate Authority to be conclusive, holding that but for the District Superintendent of Education pointing out the wrong the petitioner was not inclined to take action. There is no material in support of this finding. Relying upon a judgement of the Supreme Court in AIR 2001 SUPREME COURT 2524 "Tarlochan Dev Sharma v. State of Punjab" learned counsel has propounded a two fold submission. The first submission is that a person holding an elected post cannot be lightly interfered with by an order in exercise of statutory powers as distinct from unseating him by a „No Confidence Motion‟. The second submission is that a solitary act may not be sufficient to constitute an abuse of power or misconduct in the nature of the post held. This submission was qualified with the rider that the petitioner had in fact committed no abuse of power or - 3 - misconduct in the facts of the case. Learned counsel for the State contended that the corrective action was taken as late as 14.6.2007 only after the report of the District Superintendent of Education dated 8.6.2007 and therefore it was not a suo motu action. Section-18(5) of the Act reads as follows:- “18(5). Without prejudice to the provisions under this Act, if, in opinion of the Commissioner having territorial jurisdiction over the Gram Panchayat, a Mukhiya or an Up-Mukhiya of Gram Panchayat absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Commissioner may, after giving the Mukhiya or Up-Mukhiya a reasonable opportunity for explanation, by order, remove such Mukhiya or Up-Mukhiya, as the case may be, from office. The Mukhiya or Up-Mukhiya so removed shall not be eligible for re-election as Mukhiya or Up-Mukhiya or Member of Gram Panchayat during the remaining term of office of such Gram Panchayat.” In the case of Tarlochan Dev Sharma (supra) relied upon by the petitioner, the appellant was the elected President of the Municipality. Under Section-22 of the Punjab Municipal Act, 1911, containing like provisions, he was served a show cause notice why he should not be removed from the post of President. He replied to the same. After grant of a personal hearing it - 4 - was held to be a case of abuse of power and a conduct unbecoming of the President leading to orders for his removal. The High Court had held that it could not act as an appellate court merely because a different conclusion could be arrived at from that arrived at by the authority. The Supreme Court allowed the appeal, setting aside the removal 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 having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within S. 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of S.22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case.” “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 - 5 - 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 the facts of the present case, an erroneous appointment was made. No sooner that the error was pointed out, barely 5 days later on 14.6.2007 the petitioner rectified the order. If he was interested in abusing his powers, he would not have done so. On the contrary, he would have persisted with justification. An error in a decision shall not per se amount to abuse of powers. To invoke an abuse of power something further is required. There has to be a finding that despite awareness of the provisions prohibiting the appointment, a decision to the contrary was deliberately taken without justification. There is no discussion either in the order of - 6 - the Commissioner or of the Appellate Authority to this effect. The mere fact that the rectification may have been made after the error was pointed out shall not be sufficient. A suo motu action was taken in time. An error may be detected by the one who committed it or it may be brought to his attention by another. Merely because he rectified the error after it was brought to his attention by another, in absence of any conclusive finding that the error was deliberate supported by necessary materials and discussions for such a finding, this Court finds it difficult to sustain the impugned orders. In fact, on the date that the show cause was given i.e. 28.8.2007 the error stood rectified and there was no abuse of power subsisting to justify the show cause notice. His reply to the show cause notice on 13.9.2007 pointed out the fact that the error stood rectified on 14.6.2007 has been brushed aside very lightly while interfering with a matter as serious as one elected to an office as distinct from a delinquent appointed to an office. Furthermore, there does not appear to be any allegations against the petitioner of persistent abuse of power or misconduct as discussed in paragraph-10 of the judgement of the Supreme Court in Tarlochan Dev Sharma (Supra). In C.W.J.C. 18905 of 2010 (Vijay Singh Vs. The State of Bihar & Ors.) disposed on 17.1.2011 this - 7 - Court has held as follows:- “The petitioner is stated to be a Mukhiya of the Gram Panchayat. He holds an elected post reflecting the will of the people. If those who elected him are not satisfied with his performance they can move a No-confidence Motion against him under Section 18(4) of the Act. The yardstick on which a No-confidence Motion challenged before this Court shall be tested, will be fundamentally different as it is based on the will of the electorate. In contra- distinction to the same, the provisions of Section 18(5) of the Act purporting him to remove an elected person in a manner other than the will of the people, the flexibility that may be available in challenge to an action of no confidence reflecting the will of the people, shall be replaced by a rigorous compliance of the statutory provisions, if the elected person is to be removed in exercise of executive statutory powers. It may perhaps be described as a procedure akin to a departmental proceeding as the Mukhiya is sought to be faulted with in exercise of powers and duties to be visited with a punishment of removal. There can be no standardized yardstick of the words “reasonable opportunity” mentioned in Section 18(5) of the Act. What will be the meaning assignable to “reasonable opportunity” shall depend upon the facts of the case. The Court has no hesitation in holding that if instead of allowing grassroots democracy to work, an elected person is sought to be removed in a manner other than by a No-confidence Motion, Section 18(5) of the Act mandates a personal hearing to the individual concerned. The Court reads this into the statutory provisions as a facet of the principles of natural justice. Serious consequences ensue on the Mukhiya when an order is passed under Section 18(5) of the Act. If a delinquent in a departmental proceeding is heard, and the present proceedings under Section 18(5) of the Act have a semblance of similarity with the same, there is no reason why the hearing given to the delinquent in a departmental proceeding should be denied to a person under Section 18(5) of the Act.” The impugned orders dated 5.10.2007 and - 8 - 4.8.2009 are not sustainable and are therefore set aside. The Court expects that in view of the pronouncement of the Supreme Court laying down the parameters for exercise of executive powers in a para materia provision, the State Authorities shall appropriately act in accordance with law while exercising powers under Section-18(5) of the Act so that not only are the democratically elected representatives not lightly interfered with, but unwarranted litigations are also prevented from coming to this Court. The writ application stands disposed. KC ( Navin Sinha, J.)