IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.942 of 2010 SARMA DEVI W/O RAVAN PASWAN R/O VILL KAINDI, P.S.HALSI,DISTT- LAKHISARAI VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, PANCHAYAT RAJ ACT BIHAR,PATNA 3. THE DIVISIONAL COMMISSIONER MUNGER DIVISION ,MUNGER 4. THE COLLECTOR LAKHISARAI 5. THE PANCHAYAT RAJ OFFICER LAKHISARAI 6. THE ANCHAL ADHIKARI HALSI, BLOCK,DISTT-LAKHISARAI ----------- 02 10.03.2010 The petitioner challenges the order dated 24.12.2009, passed by the State Government by which petitioner, who was Mukhiya of Gram Panchayat, Kaindi disqualifying her under Section 18(5) of the Bihar Panchayat Raj Act. The impugned order is contained in Anneuxre-2. A bare perusal of the impugned order shows absolutely no application of mind. The impugned order only notes that the Collector, Lakhisarai had found one allegation of dereliction against the petitioner and informed the State Government for her removal. The matter at the district level had been enquired into as also by the Vigilance Department and they had held petitioner guilty of dereliction because of which an F.I.R. has been filed against the petitioner and petitioner is facing trial. The State Government issued notice to the petitioner to show cause. The petitioner submitted his show cause. Her show cause was then forwarded to the Collector of the district for his comments. The Collector reaffirmed his finding in the report to the State Government. The said report would also not disclose to the petitioner. The order merely states that in view of the reports - 2 - of the State Government and its officials, the show cause as filed by the petitioner, cannot be accepted. There are no reasons in support of the order. The order is absolutely mechanical. The report submitted by the district authorities and other State officials as the last word and the gospel truth, that is not law. It must be remembered that petitioner was an elected member in a democratic local self-government. The exercise of power under Section 18(5) has drastic consequences. It not only removes the petitioner from the post but also debars the petitioner in future. It is well settled that more drastic power, the stricter adherence of formalities to be sought for by the Courts. Similar action of the State Government was called in question before the Apex Court in the recent judgment in the case of Sharda Kailash Mittal Vs. State of Madhya Pradesh & Ors. since reported in (2010) 2 Supreme Court Cases 319 wherein the President of Nagar Palika was removed under similar provisions of the Madhya Pradesh Municipality Act, 1961. The Apex Court placed reliance on the earlier judgment in the case of Tarlochan Dev Sharma Vs. State of Punjab since reported in (2001) 6 Supreme Court Cases 260 = AIR 2001 SC 2524 and held thus:- “……23. As directed earlier, Section 41-A of the Act gives power to the State Government to remove the President, Vice- President or Chairman of a Committee on four broad grounds, namely, (a) public interest; - 3 - (b) interest of the Council; (c) incapability of performing his duties; and (d) working against the provisions of the Act or the Rules made thereunder. In addition, under Section 41-A (2), the State Government at the time of removal from office may also pass an order disqualifying the person from holding the office of the President, Vice-President or Chairman for the next term. The question to be determined is what is the scope of the application of Section 41-A and what is the nature of power of the Government? 24. In Tarlochan Dev Sharma v. State of Punjab this Court while dealing with the removal of a President of the Council under the Punjab Municipal Act of 1911, held in para 7 as under: (SCC pp. 268-69) “7. In a democracy governed by the rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law………Removal from such - 4 - an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held.” In para 11 this Court observed as under: (Tarlochan Dev Sharma case, SCC pp.270-71) “11……..A singular or casual aberration or failure in exercise of power is not enough; a course of conduct of plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is……..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.” The same consideration must be taken into account while interpreting Section 41-A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically - 5 - elected officer, and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances. 25. For taking action under Section 41-A for removal of the President, Vice- President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office- bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an officer-bearer……….” In view of the aforesaid facts and the law as laid down by the Apex Court and the mechanical manner in which the State Government has proceeded, I have no option but to set aside the impugned, as contained in Anneuxre-2, and allow the writ application. Trivedi (Navaniti Prasad Singh, J.)