IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 7893 of 2010 1. DINESH PANDEY, S/O SRI BASUDEO PANDAY, R/O VILLAGE- JHILWANIA,P.S.- GAURA, P.S.- KATEYA, DISTRICT- GOPALGANJ (BIHAR). Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, RURAL DEVELOPMENT DEPARTMENT,GOVT. OF BIHAR, PATNA. 3. THE SECRETARY, null STATE ELECTION COMMISSION, GOVT. OF BIHAR, PATNA (BIHAR). 4. THE SECRETARY PANCHAYAT RAJ, GOVT.OF BIHAR, PATNA (BIHAR) 5. THE DIRECTOR, PANCHAYAT RAJ, GOVT.OF BIHAR, PATNA (BIHAR) 6. THE DEPUTY DIRECTOR (ELECTION), PANCHAYAT RAJ DEPARTMENT, GOVT.OF BIHAR, PATNA. 7. THE DIVISIONAL COMMISSIONER, SARAN DIVISION AT CHAPRA. 8. THE DISTRICT MAGISTRATE, GOPALGANJ, DISTRICT GOPALGANJ (BIHAR). 9. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ, DISTRICT GOPALGANJ (BIHAR). 10. THE BLOCK DEVELOPMENT OFFICER, KATEYA, KATEYA, DISTRICT GOPALGANJ (BIHAR). 11. THE BLOCK EDUCATION EXTENSION OFFICER, KATEYA, KATEYA, DISTRICT GOPALGANJ (BIHAR). 12. THE PANCHAYAT SECRETARY,GRAM PANCHAYAT RAJ GAURA, BLOCK KATEYA,DISTRICT- GOPALGANJ (BIHAR). 13. KUMARI RANJANA MANI TRIPATHI, D/O SRI PRADEEP TIWARI, W/O SRI SHAILESH TIWARI, R/O VILLAGE- GAURA, P.S.- KATEYA,DISTRICT- GOPALGANJ (BIHAR). *** For the petitioner :Mr Umesh Kr Mishra, Advocate For respondent No 13 :M/s Ramakant Sharma, Sr Advocate With Mr Surya Kant Mishra, Advocate For the S t a t e :M/s Sanjay Kumar Sinha, SC 13 & Rakesh Prabhad, AC to SC 13 *** 2 13.05.2010 The petitioner was Mukhiya of Gram Panchayat Raj Gaura, Block – Kateya, District – Gopalganj. He challenges the order of the State passed with reference to Section 18 (5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) by which allegedly for abuse of power, the petitioner has been removed. Sub-section (5) of Section 18 is quoted hereunder : 2 “18. Resignation or Removal of Mukhiya or Up-Mukhiya.- … … … (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 wilfully 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 Government 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 on the charge of being found guilty of misuse of vested powers or of misconduct in the discharge of his duties shall not be eligible for election to any Panchayat bodies till further five years from the date of such removal. The Mukhiya or Up-Mukhiya so removed on rest of the charges 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.” The petitioner had earlier, for the term 2001-2006 was elected Mukhiya. The term having come to an end, fresh elections were held in 2006. Petitioner was elected Mukhiya once again. Upon being elected, in terms of Rule 122 of the Bihar Panchayat Election Rules 2006, he was duly administered a fresh oath as Mukhiya for the said Panchayat. In course of time, there seems to have been a grievance against him of 3 which State took cognizance and notices were issued to him for his removal in terms of Section 18 (5) of the Act. The gravemen of charge was that in the year 2005, in the process of selection of Shiksha Mitra, petitioner, as the then Mukhiya, has committed irregularity. He has refused to obey the directions of the District Superintendent of Education and refused to appoint persons including respondent No 13 who has appeared in this case. Petitioner filed his show cause and not being satisfied with the show cause, the State Government has passed the impugned order holding that in the process of appointment of Shiksha Mitra, the petitioner, as Mukhiya of the Gram Panchayat, was guilty of committing irregularities and, thus, was liable to be removed and removed as such. Having heard the learned counsel for the petitioner, learned counsel for the State and learned counsel for respondent No 13, upon whose complaint basically the whole action had been taken, and with their consent, this writ application is being disposed of at this stage itself. Two submissions have been made on behalf of petitioner. Firstly, in matters of selection and appointment of Shiksha Mitra, the Mukhiya did not take any decision individually. They were collective decisions of a Special Committee set up in this regard though it is headed by the Mukhiya. Thus, the question was of collective responsibility and Mukhiya could not be alone picked up to be punished. Secondly and more importantly, it is submitted that the dereliction, even if found to be correct, was in regard to tenure of Mukhiya for the period 2001 to 2006 which period had already ended. Petitioner was reelected in the year, 4 2006 and subscribed to a fresh oath in terms of Rule 122 of the Rules aforesaid. In that view of the matter, for a dereliction done in the period which had expired, no action could be taken in subsequent period. Having heard the parties and considered the arguments, the writ application must succeed. A reference to Section 18 (5) of the Act shows that the Mukhiya, who abuses his power as a Mukhiya, would be removed from the Post of Mukhiya. Here, the Mukhiya who abused the power ceased to be Mukhiya on the term of Gram Panchayat having come to an end. Once he ceased to be the Mukhiya on the term already expired, he could not be removed because he ceased to exist. One cannot be permitted to flog a dead horse. The tenure having ended, the position of Mukhiya having ended. The power under Section 18 (5) of the Act could not be exercised with regard to that dereliction. Presently, he is Mukhiya on a fresh oath which he subscribed in 2006 for the fresh term and there is no dereliction in respect thereof. The premise is a Mukhiya can be removed from the Post of Mukhiya if he is a Mukhiya and, as such, had committed a dereliction. That is not available in the present case. All the powers that the State had under Section 18 (5) of the Act expired with the expiry of the term. These proceedings were not initiated even prior to 2006 election. Thus, the order cannot be sustained. The order of the State Government removing the petitioner as Mukhiya is, thus, quashed and the writ application is allowed. M.E.H./ (Navaniti Prasad Singh)