IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.961 of 2011 In Civil Writ Jurisdiction Case No. 6557 of 2010 With Interlocutory Application No. 4368 of 2011 ====================================================== Arun Kumar Singh, S/o Late Yamuna Prasad Singh, R/o Village/Mohalla- Purani Durga Asthan, Sultanganj, P.O. & P.S.-Sultanganj, District- Bhagalpur. At present Chairman, Nagar Parishad, Sultanganj, District- Bhagalpur. .... .... Appellant/s Versus 1. The State of Bihar through the District Magistrate, Bhagalpur. 2. The District Magistrate, Bhagalpur. 3. The Bihar State Election Commission, through the Election Commissioner, Bihar at Patna. 4. The State Election Commissioner, Bihar at Patna. 5. The Secretary, Urban Development Department, State of Bihar at Patna. 6. The Additional Collector (Land Ceiling), Bhagalpur. 7. The Executive Officer, Nagar Parishad Sultanganj, Bhagalpur. 8. Subhash Poddar, S/o Sri Ramdeo Poddar, Ward Councillor/ Commissioner, Ward No. 15, Nagar parishad, Sultanganj, Bhagalpur. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Basant Kumar Chaudhary, Sr. Advocate. Mr. Praveen Kumar, Advocate. For the State : Mrs. Namrata Mishra, GP 17. For the respondent no. 7: Mr. Dhananjay Kumar Gupta, Advocate. For the respondent no. 8: Mr. Purusotham Kumar Jha, Advocate. For the respondent nos. 3 & 4: Mr. R.S.Pradhan, Sr. Advocate. Mr. Sanjeev Nikesh, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 08-07-2011 This Appeal preferred under Clause 10 of the Letters Patent arises from the order dated 4th May 2011 made by the learned single Judge in above CWJC No. 6557 of 2010. The appellant was an elected Chairman of the Nagar Parishad, Sultanganj. During the tenure of his chairmanship, it was Patna High Court LPA No.961 of 2011 (2) dt.08-07-2011 2 found that the name of his son was entered into the list of the persons living below the poverty line. It was alleged that the said entry was made at the instance of the appellant. The appellant was thus charged for abuse of power. For the said act of abuse of power, after following due procedure, he was removed from the office on 31st March 2010. The challenge to the said order of removal from office before the learned single Judge in above CWJC No. 6557 of 2010 has failed. Therefore, the present Appeal. Learned counsel Mr. Basant Kumar Chaudhary has appeared for the appellant. He admits that the name of the son of the appellant was indeed entered in the list of persons living below the poverty line. Mr. Chaudhary also admits that the said son of the appellant was living with the appellant; he could not have been living below the poverty line. Mr. Chaudhary has further submitted that the name of the son of the appellant was entered in the list without the knowledge of the appellant. When it was brought to the knowledge of the appellant, the appellant got it removed from the list. The son of the appellant did not gain any benefit on account of such entry. Besides for a single wrong act the appellant could not have been charged for misuse or abuse of power; nor could he be removed from the office. In support of the above submission, Mr. Chaudhary has relied upon the judgment of the Hon’ble Supreme Court in the matter of “Tarlochan Dev Sharma V. State of Punjab and Others [A.I.R. 2011 SC 2524]. He has particularly relied upon the observations made in paragraphs 10 and 6 of the judgment. In paragraph 10 of the judgment, the Hon’ble Supreme Court has observed: “the expression „abuse of powers‟ in the Patna High Court LPA No.961 of 2011 (2) dt.08-07-2011 3 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 paragraph-6 of the judgment the Hon’ble Supreme Court has discussed the right of an elected person to enjoy the office for the full-term and that the removal from the office of an elected person is a serious matter. Patna High Court LPA No.961 of 2011 (2) dt.08-07-2011 4 As to the proposition of law, there cannot be but total agreement with the above referred observations of the Hon’ble Supreme Court. The only question is whether or not the particular wrong act committed by the appellant did amount to abuse of power. In our opinion, the wrong admittedly committed by the appellant can not be termed as unreasonable or inappropriate use of power. It was out and out an act of abuse of power. A single act of abuse of power also may justify removal from office. It is in case of ‘failure to perform duty’, a singular act of failure may not warrant removal from office. In the present case the charge was not that of ‘failure to perform duty’ but was that of ‘abuse of power’. The learned single Judge rightly refused to interfere with the same. No case for interference is made out. The Appeal is dismissed in limine. Interlocutory application stands disposed of. Sujit/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)