IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5197 of 2009 Baidhyanath Prasad, son of Late Raghunath Prasad, resident of village Ratanmala, P.S.Majhaulia, District-West Champaran. ….Petitioner Versus 1. The State of Bihar. 2. The Principal Secretary, Panchayati Raj, Bihar, Patna. 3. The Director (Election) Panchayati Raj, Bihar, Patna. 4. Deputy Director (Election) Panchayati Raj, Bihar, Patna. 5. The Secretary, Panchayati Raj, Bihar, Patna. 6. The District Magistrate Cum District Election Officer, West Champaran. 7. The Sub divisional Officer, Bettiah Sadar, Bettiah, West Champaran. 8. The Block Development Officer, Majhaulia, West Champaran. 9. The Executive Magistrate, Bettiah, Sadar, West Champaran . 10. Up Mukhiya, Panchayati Raj Ratan Mala Mancholia, West Champaran, Bettiah. …Respondents ---- 3. 12.05.2009 Heard Mr. Yogesh Chandra Verma, learned counsel for the petitioner, and Mr. Mani Kant Mishra, learned Government Pleader No.21. The petitioner challenges the vires of section 18 (5) of the Bihar Panchayat Raj Act,2006(hereinafter to be referred to as the Act). Learned counsel for the petitioner submits that the provisions of Sub-section 5 of Section 18 of the Act confers unbridled and unguided powers on the State Government to remove a Mukhiya or an Up-Mukhia of the Gram Panchayat. He next submits that such arbitrary powers cannot be - 2 - conferred on the State Government to remove an elected body in a situation where Part IX of the Constitution devoted to Gram Panchayat. An elected body cannot be removed in the manner provided for by section 18 (5) of the Act. He relies on the judgment of the Supreme Court in the case of A. L. Kalra Vs. The Project and Equipment Corporation of India Ltd. (AIR 1984, Supreme Court, 1361). Learned Government Pleader has opposed the writ petition. We have perused the materials on record and considered the submissions of learned counsel for the parties. Section 18 (5) of the Act is reproduced hereinbelow for the facility of quick reference. "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 - 3 - 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.” It is relevant to state that the expression “Commissioner” has since been replaced by the expression “State Government”. It is evident on a bare reading of Section 18(5) of the Act that the powers vested in the Commissioner/the State - 4 - Government to remove a Mukhiya or an Up- Mukhiya can be exercised, is clearly indicated therein. A Mukhiya or an Up-Mukhiya can be removed under the following circumstances:- (i) if Mukhiya or an Up-Mukhiya has absented himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions, (ii) or abuses the power vested in him, (iii) or is found to be guilty of misconduct in the discharge of his duties, (iv) or becomes physically or mentally incapacitated for performing his duties, (v) or is absconding being an accused in a criminal case for more than six months. We are thus convinced that provisions do not confer arbitrary or unguided powers. There are sufficient guidelines for the safe and sound exercise of the powers for removal of a Mukhiya or an Up- - 5 - Mukhiya. Learned counsel for the petitioner has also contended that there is no provision for appeal etc. Therefore, the power exercised by the Commissioner earlier, and now by the State Government, can never be tested in the court of appeal. The contention is rejected. Law is well- settled by the judicial pronouncements that a right of appeal has to be conferred by the statute and absence of it does not render the provision ultra vires. In the absence of a provision for appeal, the matter can always be challenged under Articles 226, 227 or 32 of the Constitution of India. The aggrieved party is, therefore, not remedyless. Learned counsel for the petitioner next contended that a democratically elected body cannot be removed in the manner prescribed in Section 18 (5) of the Act. It is not possible to entertain the submission in view of the provisions contained in Part XVIII of the Constitution. Article 356 of the Constitution provides for imposition - 6 - of the President’s Rule in a situation where there has been failure of constitutional and democratically elected machinery in the State. The contention is rejected. Learned counsel for the petitioner next contended that a Pramukh has not been given such treatment and the Mukhiya and Up-Mukhiya have been subjected to hostile discrimination. Section 44(4) of the Act provides identical provisions for the removal of Pramukh & Up-Pramukh. The contention is rejected. We, therefore, do not find any fault in the impugned order. The writ petition is dismissed. hr ( S. K. Katriar ) ( Kishore K. Mandal )