IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.920 of 2010 IN CIVIL WRIT JURISDICTION CASE NO.3119 OF 2010 ======================================================== WITH INTERIM APPLICATION NO.5562 OF 2010 IN LETTERS PATENT APPEAL NO.920 OF 2010 WITH INTERM APPLICATION NO.5093 OF 2010 IN LETTERS PATENT APPEAL NO.920 OF 2010. ======================================================== Aruna Devi W/O Prem Lal Yadav, Up Mukhiya, Gram Panchayat Raj, Madhuban , Police Station Janki Nagar, District- Purnea, R/O Village Madhuban, P.O. Janki Nagar, District- Purnea.-------------- APPELLANT. Versus 1. The State Of Bihar. 2. The Secretary, Panchayat Raj Department, Govt. Of Bihar, Patna. 3. The District Magistrate, Purnea. 4. The Deputy Director, Panchayat Raj Department, Govt. Of Bihar, Patna. 5. The District Panchayat Raj Officer, Purnea. 6. The Block Development Officer, Banmankhi, District Purnea. 7. Rajendra Prasad Yadav, S/O Late Chunni Lal Yadav, Mukhia Of Gram Panchayat, Madhuban, P.S. Janaki Nagar, District- Purnea.--- RESPONDENTS =============================================== Appearance : For the petitioner : Mr. Anil Kumar Dwivedi, Advocate For the State : None. ================================================ CORUM : HONOURABLE THE CHIEF JUSTICE AND HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE) 4. 13.8.2010. Heard the learned advocate. 2 This Letters Patent Appeal is preferred by one Aruna Devi against the order dated 31st March, 2010 passed by the learned Single Judge in C.W.J.C.No.3119 of 2010. The appellant made a complaint against the respondent no.7 Rajendra Prasad Yadav, Mukhiya of Madhuban Gram Panchayat, District, Purnea that he had suffered paralytic attack and that he was physically incapacitated for performing his duties of a Mukhiya. Pursuant to her complaint, report of the District Magistrate and the report of the Medical Board, the State Government, under its order dated 1st February 2010, removed the said Rajendra Prasad Yadav from the post of the Mukhiya, Madhuban Gram Panchayat, District- Purnea. Feeling aggrieved, the said Rajendra Prasad Yadav filed C.W.J.C.No.3119 of 2010. The learned single Judge allowed the writ petition and set aside the order of the State Government. Learned Single Judge has relied upon Section 18(5) of the Bihar Panchayat Raj Act, 2006. It is held that the Divisional Commissioner is empowered to exercise power of removal of Mukhiya under Section 18(5) of the Act. The State Government was not empowered to take any action under section 18(5) of the Act. On the sole ground, the impugned order of removal has been set aside. Feeling aggrieved, the appellant has preferred this appeal. She has also filed Interim Application No.5562 of 2010 for leave to file appeal and Interim Application No.5093 of 2010 for condonation of delay of 11 days occurred in filing the Letters Patent Appeal. Learned Advocate Mr. Anil Kumar Dwivedi has appeared for the appellant. He has submitted that it was the appellant who brought to the notice of the authority the factum of physical incapacity of the aforesaid Rajendra Prasad Yadav. She therefore, 3 has a right to maintain this appeal against the impugned order. He has also submitted that the learned Single Judge has failed to consider the correct legal position. Since its amendment by the Act 8 of 2008, it is the State Government and not the Divisional Commissioner who is authorized to make order of removal of a Mukhiya under section 18(5) of the Act. Learned Advocate Mr. Anil Kumar Dwivedi is right. Since its amendment by the Act 8 of 2008, power to remove the Mukhiya under Section 18(5) of the Act, hitherto conferred upon the Divisional Commissioner, has now been conferred upon the Government. It may be noted that this amendment was not brought to the notice of the Learned Single Judge. The learned Single Judge had no occasion to consider the amendment. It may however be noted that sub section (5) of section 18 of the Act, provides- “if, in opinion of the Commissioner having territorial jurisdiction over the Gram Panchayat, a Mukhiya,------ of Gram Pacnahayat------or becomes physically or mentally incapacitated for performing his duties----.’’ Thus the State Government is empowered to remove the Mukhiya on the basis of the opinin of the Divisional commissioner having territorial jurisdiction over the Gram Panchayat. In the present case, indisputably, the State Government acted upon the opinion of the District Magistrate, an officer subordinate to the Divisional Commissioner. Order made by the State Government was, therefore, vitiated. Besides, though it is the order of the State Government, which is set aside by the learned Single judge, the State Government has not preferred appeal. Moreover, the impugned order passed by the learned Single Judge does not preclude the state Government from making order for 4 removal of Mukhiya under Section 18(5) of the Act afresh after obtaining the opinion of the Divisional Commissioner. In our opinion, the order of the State Government though did not suffer from total lack of jurisdiction but certainly was irregular. For the aforesaid reason, we are of the opinion that the appeal is devoid of any merit. Leave to appeal is refused. Letters Patent Appeal and the Interim Applications stand disposed of. (R.M.Doshit, CJ) (Jyoti Saran,J) Ahk/