IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18905 of 2010 VIJAY SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 3. 17.01.2011 Heard learned counsel for the petitioner and the State. The writ petition was filed on 18.11.2010. Counter affidavit is stated to have been filed after hearing commenced on 14.01.2011 and which is not available on record. The Court therefore requested the counsel for the State to make available his copy for perusal so as not to hold up the proceedings on that ground. Let the office retain a Xerox copy of the counter affidavit of the State counsel. The petitioner is aggrieved by the order dated 4.11.2010, passed by the State Government in the Department of the Panchayati Raj 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‟). 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 2 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.” Learned counsel for the petitioner submits that he was given a show cause notice by the State Government on 10.6.2009 enclosing a report of the District Magistrate dated 5.5.2009. The report of the District Magistrate in turn relied upon a report of the Sub-divisional Officer. The petitioner submitted his reply to the show cause notice. The State Government then considered the cause shown by him in light of the comments received from the District Magistrate on the cause shown by the petitioner which was never made available to the petitioner and he had no opportunity to meet the same. Counsel for the State submits that copy 3 of the report of the District Magistrate dated 5.5.2009 upon which notice under Section 18(5) of the Act was issued to the petitioner was given to him. He has filed his reply to the same and therefore he has not been prejudiced in any manner by non- furnishing of the comments of the District Magistrate to him before issuance of the final order. 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 4 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. In (1989) 2 SCC 505 (State of U.P. Vs. 5 Maharaja Dharmander Prasad Singh) the Supreme Court at Paragarph-64 has held as follows:- “64. On the point of denial of natural justice, we agree with conclusion of the High Court, though not for the same reasons, that there has been such a denial in the proceedings culminating in the order of cancellation…... On a matter of such importance where the stakes are heavy for the lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of this case, have afforded a personal hearing to the lessees. We, therefore, agree with the conclusion of the High Court that both the show-cause notice dated 9-1- 1986 and the subsequent order dated 19-4-1986 would require to be quashed, however, leaving it open to the statutory authority, should it consider it necessary, to issue a fresh show-cause notice setting out the precise grounds, and afford a reasonable opportunity including an opportunity of personal hearing and of adducing evidence wherever necessary to the respondent lessees. In view of this liberty, reserved to the authority, it is necessary to set aside the findings recorded by the High Court on the merits of the grounds” The Court exercising powers of judicial review under Section 18(5) of the Act is not concerned with the merit of the decision unless there be allegation of arbitrariness, perversity and irrationality. But the Court is concerned with the decision making process. Natural justice prohibits a procedure where 6 materials are furnished by an authority and decision is taken by another authority without furnishing full particulars to the person concerned and likely to be affected by such decision making process. The report of the District Magistrate sent to the State Government dated 5.5.2009, undoubtedly has been furnished to the petitioner. If the petitioner had filed his reply to the same and the authorities after granting him a personal hearing had proceeded to pass final orders, different issues may have arisen for consideration by the Court. But in the present case, the State Government calls for a report from the District Magistrate on the cause shown by the petitioner. The petitioner is not given a copy of the same and does not have the benefit of knowing what comments have been furnished by the District Magistrate and whether they are correct or incorrect, to reject the cause shown by the petitioner without furnishing a copy of the comments of the District Magistrate to the petitioner. The position is akin to an accusation in a departmental proceeding on a specific issue, a reply filed by the delinquent and punishment based on a report not furnished to the delinquent. The fact that the decision was to be taken 7 by the State Government and not by the District Magistrate made it all the more imperative that the comments of the District Magistrate were furnished to the petitioner. The Court holds absence of this procedure to be a serious infirmity in the decision making process. The petitioner has been denied reasonable opportunity to defend himself under Section 18(5) of the Act. In ,(2009) 2 SCC 192 (Kothari Filaments v. Commr. of Customs) the Supreme Court at Paragraph-15 has held as follows:- “15. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with misdeclaration is entitled to know the ground on the basis whereof he would be penalised. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply.” The respondents in their counter affidavit have enclosed as Annedure-C/1, the comments of 8 the District Magistrate on the cause shown by the petitioner. The alertness which the respondents have shown in proceedings before the Court was required at the stage when they were exercising their statutory powers under Section 18(5) of the Act. The impugned order dated 4.11.2010 is set aside. The petitioner stands reinstated. The Court considers it proper to give this direction in view of the fact that he acquired the post not by appointment but by election. Nothing precludes the State Government from proceeding afresh after furnishing a copy of the comments of the District Magistrate to the petitioner with an opportunity to file a fresh show cause and then grant him a personal hearing and pass final appropriate orders in accordance with law. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)