IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.338 of 2011 IN CWJC No. 1777 of 2011 ====================================================== Alka Kumari, wife of Chunchun Kumar, resident of village-Khojagachhi, P.S. Barbigha District-Sheikhpura. - Petitioner - Appellant Versus 1. The State Of Bihar through the Principal Secretary, Panchayati Raj Department Government of Bihar, Patna. 2. The Deputy Director Panchayati Raj, Department Bihar, Patna 3. The District Magistrate, Sheikhpura. 4. The Sub-Divisional Officer Sheikhpura P.S & District-Sheikhpura. 5. The Block Development Officer, Barbigha, P.S. Barbigha, District- Sheikhpura - Respondents- Respondents ====================================================== Appearance : For the Appellant : Mr. Basant Kumar Chaudhary, Advocate Dr. Anjani Prasad Singh, Advocate For the Respondents: Mr. Syed Arshad Alam, SC-3 Mr. Gautam Kumar Yadav, A.C. to S.C. III ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3 07.03.2011 With the consent of the learned advocates the Appeal is heard and decided today. This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 2 4th February 2011 passed by the learned Single Judge in above C.W.J.C. No. 1777 of 2011. The appellant was an elected Mukhiya of village-Khojagachhi, Block-Barbigha, District- Sheikhpura. On 3rd October 2009 she was given a notice to show cause. She was informed that she had abused her authority and why she should not be removed from the office in exercise of power conferred under Section 18(5) of the Bihar Panchayati Raj Act 2006 (hereinafter referred to as “the Act of 2006”). The appellant replied to the said notice. By order dated 13th January 2011 made by the State of Bihar under Section 18(5) of the Act of 2006, the appellant was ordered to be removed from her office. The challenge to the said order before the learned Single Judge has failed. Therefore, the present Appeal. Learned Advocate Mr. Basant Kumar Chaudhary, has appeared for the appellant. He has submitted that the order of removal of the appellant from the office is made on a sole ground that she granted 3 licence for holding an animal fair on a piece of land which was earlier subject matter of dispute under Section 144 Cr.P.C. The proceeding under Section 144 Cr.P.C. had come to an end by efflux of time and by operation of law. In any view of the matter it was within her power to grant licence to hold the animal fair. Her decision to grant such licence on a particular piece of land may at worst be not a wise decision but it cannot be said to be an abuse of authority. He has submitted that though the charge was one and one alone while making the impugned order under Section 18(5) of the Act, there is a reference to the appellant’s not carrying out the directions of the District Magistrate. Mr. Basant Kumar has submitted that at first there was no direction issued by the District Magistrate. That too is noted in the order dated 13th January 2011 and secondly the District Magistrate has no authority to issue direction to the Mukhiya of a Gram Panchayat. He has submitted that the learned Single Judge has erred in holding that the proceeding under Section 145 Cr.P.C. was pending and that the appellant could not have ignored the direction issued by the District Collector. 4 Learned advocate Mr. Sayed Arshad Alam has appeared for the State of Bihar. He has supported the order dated 13th January 2011. He has submitted that it is a gross case of abuse of authority and that the order of removal of appellant from office was appropriate. We do agree with the appellant. It is not in dispute that being a Mukhiya, the appellant had the power to grant licence to hold animal fair. She had exercised that power in respect of a piece of land for which the owner of the land had no objection. Thus, it cannot be said to be an abuse of power. The prohibitory order dated 25th December 2008 made under Section 144 Cr.P.C. in respect of the land in question lapsed after two months as provided under Sub-Section (4) thereof. The restraint order under Section 145 Cr.P.C. made in respect of holding of the animal fair was stayed by this Court (CORUM: Navin Sinha, J.) under order dated 2nd April 2010 made in Cr.Misc.No.28125 of 2009. We have our own doubt whether the District Magistrate could have issued any direction to the elected 5 Mukhiya in respect of exercise of powers vested in her. Be that as it may, in our opinion the appellant by granting licence to hold animal fair, cannot be said to have abused her authority or power. As to the direction issued by the District Magistrate, it may be noted that the order of removal itself noticed that the District Magistrate had not issued any direction to the appellant in respect of licence to hold the animal fair granted/renewed by her. For the aforesaid reasons we allow this Appeal with cost. The impugned judgment and order dated 4th February 2011 passed in C.W.J.C. No. 1777 of 2011 is set aside. C.W.J.C. No. 1777 of 2011 is allowed. The order dated 13th January 2011 made by the State of Bihar under Section 18 (5) of the Bihar Panchayat Act 2006 removing the appellant from the office of Mukhiya, Gram Panchayat, Samas Khurd, Block-Barbigha District- Sheikhpura, is quashed and set aside. The legal consequences shall follow. Bibhash (R.M.Doshit, CJ.) (Jyoti Saran, J.)