IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3119 of 2010 RAJENDRA PRASAD YADAV S/O LATE CHUNI LAL YADAV MUKHIYA, GRAM PANCHAYAT- MADHUBAN, P.S. JANKI NAGAR, DISTT.- PURNEA. VERSUS 1. THE STATE OF BIHAR. 2. THE SECRETARY, PANCHAYAT RAJ DEPTT., GOVT. OF BIHAR, PATNA. 3. THE DISTRICT MAGISTRATE, PURNEA 4. THE DEPUTY DIRECTOR, PANCHAYATI RAJ DEPTT., GOVT. OF BIHAR, PATNA. 5. THE DISTRICT PANCHAYATI RAJ PADADHIKARI, PURNEA. 6. THE BLOCK DEVELOPMENT OFFICER, BANMANKHI, DISTT.- PURNEA. ----------- For the Petitioner : Mr. Rajendra Pd. Singh, Sr. Adv. Mr. Nawal Kishor Singh, Adv. Mr. Rakesh Kr. Singh, Adv. Mr. Alok Kr. Singh, Adv. For the State : GP-19. ----------- 02 31.03.2010 The solitary question in this present writ application is, whether a duly elected Mukhiya can be removed by the government in purported exercise of powers under Section 18(5) of the Bihar Panchayat Raj Act, 2006. In view of the fact that there is no dispute with regard to facts, the writ petition has been heard at length and being disposed of at this stage itself. The only ground on which the petitioner has been removed is that he is paralyzed from waist downwards and, as such, he is effectively unable to perform his functions. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing in support of the writ application submits that petitioner being a Mukhiya is not required to perform any function with his body waist downwards. As a Mukhiya, he has to perform his - 2 - function with brain and hand. There is no report that he is mentally incapacitated in any manner. On the contrary, the report is he is mentally fit and capable. He refers to the provisions of Section 18(5) of the Bihar Panchayat Raj Act and points out that this is being not a ground contemplated in taking action in this regard. For consideration Section 18(5) of the Bihar Panchayat Raj Act, 2006, is quoted hereunder:- 18. Resignation or Removal of Mukhiya or Up-Mukhiya. “………(5) Without prejudice to the provisions under this Ordinance, 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 willfully omits or refuses to perform his duties and functions under this Ordinance, 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 Commissioner 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 - 3 - 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………” At the very beginning, I may notice that there is neither an appeal provided nor any guidelines provided as to the exercise of such a power. This Court has been repeatedly cautioned the State Government upon exercise of such power except in exceptional circumstances. This Court in several decisions earlier pointed out that this is interference by executive in matters of democratically elected persons. These view of this Court now stands affirmed by the Apex Court in the case of Sharda Kailash Mittal Vs. State of Madhya Pradesh and others since reported in (2010) 2 Supreme Court Cases 319, while relying upon the earlier decision of the Apex Court in the case of Tarlochan Dev Sharma since reported in (2001) 6 SCC 260, the Apex Court held thus:- “……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 officer- 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 office-bearer. 26. There are no sufficient guidelines in the provisions of Section 41-A - 4 - as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation..........” In that view of the matter, the order of the State Government cannot be sustained and it is quashed accordingly. The writ application is allowed. Trivedi (Navaniti Prasad Singh, J.)