IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17498 of 2009 1. SATYANAND THAKUR S/O LATE JAI RAM THAKUR R/O VILL.- JAGMAL BIGHA, P.S.- KHUSHRUPUR, DISTT.- PATNA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, PANCHAYATI RAJ DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. THE DEPUTY DIRECTOR (ELECTION) PANCHAYATI RAJ DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE COMMISSIONER PATNA DIVISION, PATNA 5. THE DISTRICT MAGISTRATE PATNA 6. THE DISTRICT PANCHAYATI RAJ OFFICER PATNA 7. THE BLOCK DEVELOPMENT OFFICER KHUSHRUPUR, PATNA 8. THE CHIEF DEVELOPMENT PROJECT OFFICER, FATAHA ----------- 4. 5.05.2010 The petitioner challenges the order of the State Government by which in purported exercise of power under Section 18(5) of the Bihar Panchayat Raj Act, 2006 petitioner has been removed from the post of Mukhiya of Gram Panchayat Raj Hardas Bigha, District- Patna. Intervention application has been filed in the writ petition on behalf of the people who had complained and who have complains. Upon hearing the matter of intervention, I rejected the Intervention applications as they have no locus standi in the matter. Its statutory order passed by the State Government and the State Government is to defend the order. The petitioner who was the Mukhiya has been dismissed, as noted above, on two grounds, firstly it is alleged 2 that serious irregularities were committed in appointment of “Anganwari Sewika”. It is alleged that without holding meeting and by manipulating records of meeting, appointments were made. The second was with regard to irregularity in allotment of Indira Awas. When the matter was earlier taken up, learned counsel on behalf of the State pointed out that State would bring on record proceedings of meeting to show that there were serious manipulation to show meetings have been held when in fact no such meetings were held. The matter was twice adjourned and even though a counter affidavit has been filed and no such document has been brought on record. As noted above, the basis of allegation with regard to appointment of Anganwari Sewika were that they were all appointed in a cooked up proceeding of the Gram Sabha which remained unsubstantiated before this Court. To the contrary, learned counsel appearing on behalf of the petitioner with leave of the Court produced photographs to show that meeting had taken place in presence of Government Officials, but for some reasons which is now being denied. Those photographs have been filed before the Government as a part of show-cause which fact is not denied 3 by the State. Mr. Ashok Kumar Singh, learned Senior Counsel appearing for the petitioner submits that appointment of “Aangawari Sewika” is not the decision of the “Mukhiya” alone, it is a collective decision of the Gram Sabha and under no circumstance, Mukhiya alone can be charged or proceeded with. Having considered this aspect of the matter, in my view, State having failed to establish the primary charge of interpolation in records, meeting having not taken place or irregularity in meeting of appointment. An adverse inference has been drawn against the State in this regard. Moreover, it must be kept in mind that the decisions to appoint are not decision of the Mukhiya alone. They were collective decision of a duly elected body. Mukhiya alone cannot be proceeded again thus. Now, coming to the second charge of irregularity in allotment of Indira Awas. If one goes through the order of the State Government would find that the only basis for proceeding on this charge is that petitioner has been charge- sheeted pursuant to inquires having been made and case having been instituted. The State Government has proceeded 4 on the basis that once the person is charge-sheeted pursuant to a police case is lodged, he is guilty. Unfortunately, the law is other wise. A person is presumed to be innocent till found guilty and finding of guilt can only be in a trial. Charge-sheet by no stretch of imagination is a finding of guilt. I find that there is no material to proceed against the petitioner. At this stage, I may refer to a recent decision of the Apex Court in the case of Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rai & Ors. since reported in (2010) I SCC 466. This case was dealing with the similar provision of Madhya Pradesh Panchayat Raj Act. While dealing with those provisions, the Apex Court has relied upon on its earlier judgment in AIR 2001 SC 2524 wherein they had interpreted similar provision of the Punjab Municipal Act. The Apex Court has in no uncertain terms held that this is a very extraordinary power given to the executive without any guidelines. It is by executive power that democratically elected person is to be removed. The Apex Court has cautioned the exercise of power under this provision in a mechanical manner. The Apex Court has pointed out that the power must be exercised with due care and caution and in exceptional circumstances only. 5 I may only add that Mukhiyas are elected representatives who head a local self Government. They are neither under the disciplinary control of the State Government nor are they employees of the State Government. The State Government, thus, exercise no disciplinary control over them in the manner in which it is shown to do in the present case. It is basically for abuse of position that the power can be exercised and that too in exceptional cases. In that view of the mater, I have no option to allow the writ application and set aside the order of the State Government removing the petitioner as Mukhiya. Accordingly, this writ application is allowed. V.K. Pandey (Navaniti Prasad Singh, J.)