IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12245 of 2010 1. DAROGA PRASAD S/O LATE BALI RAM R/O VILL.- KALHANUA, P.O.- KALYANPUR, P.S.- DURGAWATI, DISTT.- KAIMUR Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, PANCHAYATI RAJ DEPARTMENT NEW SECRETARIAT, PATNA 3. THE DEPUTY DIRECTOR (ELECTION) PANCHAYATI RAJ DEPARTMENT, NEW SECRETARIAT, PATNA 4. THE DISTRICT MAGISTRATE, KAIMUR (BHABHUA) 5. THE SUB DIVISIONAL OFFICER, MOHANIA, KAIMUR (BHABHUA) 6. MR. THAKUR MALLAH S/O SRI GURFEKAN MALLAH R/O VILL.- BAHERA, P.O. & P.S.- DURGAWATI, DISTT.- KAIMUR ----------- 03. 28.04.2011 Heard learned counsel for the petitioner and for the State. The petitioner is the elected Mukhiya of Gram Panchayat Raj, Chehriya, Durgawati Block District- Kaimur, aggrieved by the order dated 16.7.2010 of the Principal Secretary, Department of Panchayat Raj, unseating him on alleged grounds of abuse of powers and misconduct under Section 18 (5) of the Bihar Panchayat Raj Act, 2006. Learned counsel for the petitioner submits that a show cause notice was issued duly replied on 6.5.2010. The Principal Secretary, the statutory authority then called for the comments of the District Magistrate on the defence of the petitioner. The District Magistrate submitted a cryptic reply. The Principal Secretary then completely abdicated his own statutory powers in favour of the 2 District Magistrate to hold that it was apparent from the comments of the District Magistrate that the petitioner had misused his powers. There has been no independent and satisfaction consideration by the statutory authority of the defence taken by the petitioner. Counter affidavit has been filed on behalf of the State. The Court is primarily concerned with the legality of the decision making process and not the decision itself The petitioner replied to the allegations. The statutory authority called for the comments of the District Magistrate on his defence. The defence of the petitioner runs into nine pages itemwise. The District Magistrate furnished his comments to the statutory authority on 24.5.2010 in which he simply stated that the defence of the petitioner was not satisfactory. He had earlier rejected the defence. A recommendation had already been made to unseat him from the elected post. If the Principal Secretary sought comments from the District Magistrate, no fault can be found with it as a matter of procedure. But thereafter the application of mind and satisfaction had to be of the statutory authority, the Principal Secretary. If the power was vested in the State Government, acting through the Secretary under Section 18 (5) of the Act, the power was to be exercised by the statutory 3 authority on his own application of mind at not at the behest of the District Magistrate abdicating statutory powers vitiating the order. The District Magistrate on 24.5.2010 considers the matter with a closed mind reiterating his earlier opinion. The statutory authority did not consider it necessary to apply his independent mind to the item wise charges and the defence put forth simply opining that the District Magistrate had stated that the defence of the petitioner was not acceptable. There is no reasoned consideration or discussion on what grounds the statutory authority was not satisfied with the defence of the petitioner. When a statutory authority acts at the behest or dictates of another abdicating statutory powers, the order stands vitiated. The legal status of an order which suffers from abdication of statutory powers is explained in Administrative Law by H.W.R. Wade (Seventh Edn.) at p. 358 which reads thus:- “Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra 4 vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them. In this class might be included the case of the cinema licensing authority which, by requiring films to be approved by the British Board of Film Censors, was held to have surrendered its power of control and also the case of the Police Complaints Board, which acted as if it were bound by a decision of the Director of Public Prosecutions when only required to „have regard‟ to it. This doctrine has even been applied to voting by local councillors. Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise. The Minister of Housing and Local Government made it a rule to refuse planning permission for gravel-working on top-class agricultural land whenever the application was opposed by the Minister of Agriculture. The court held that this was to put the decisive power into the hands of the wrong minister and that a decision so taken must be quashed. Similarly the court invalidated a reinstatement order made under wartime labour regulations by a national service officer, who was empowered to direct reinstatement of workers dismissed for misconduct. For the officer was acting under directions from the minister, whereas he was a statutory authority in his own right and should have exercised his personal discretion”. The impugned order dated 16.7.2010 is therefore not sustainable. It is accordingly set aside. The application stands allowed. P.K ( Navin Sinha, J.)