IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18665 of 2010 MD.ASGAR ALI . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioner: M/s Om Prakash Upadhyay & Mithilesh Kumar Upadhyay, Advocates For the State : SC 12 ------ 3. 11.01.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner who is stated to be an elected Mukhiya is aggrieved by order dated 6.10.2010 by which he has been removed from his post by the State Government in exercise of power under Section 18(5) of the Bihar Panchayati Raj Act, 2006 ( hereinafter referred to as ‘the Panchayat Act’). The writ petition was filed on 10.11.2010 after serving two copies in the office of the Advocate General, the second one to facilitate early filing of a counter affidavit by the respondents to assist the Court in timely dispensation of justice. Notwithstanding the adjournment granted on 26.11.2010 prayer has again been made today for further adjournment to file counter affidavit. The Court is not persuaded to grant further indulgence if the respondents do not appear to be appreciating their duty to assist the Court in timely dispensation of justice. The Court therefore proceeds to dispose of the writ application on basis of the averments on record. It is submitted that for certain allegations against the petitioner an enquiry was held by the Sub Divisional Officer on 9.12.2009. The report was adverse. The petitioner objected to the same when a fresh enquiry was directed leading to a report by the Additional Collector dated 3.7.2010 at variance with the report dated 9.12.2009. In view of the two contradictory reports the District Magistrate constituted a three men committee on 30.8.2010. While the report of this committee was still awaited the impugned order has been passed based on the reply to the show cause furnished as far back as 16.4.2010 when no further opportunity was given to the petitioner to place the developments of 3.7.2010 and 30.8.2010 on record. The Court under Article 226 of the Constitution exercises powers of judicial review over an order passed under Section 18(5) of the Panchayat Act. The Court shall not sit as an appellate authority over the decision. Therefore the Court shall primarily examine the decision making process and then may examine the merits of the order if there is any allegation of arbitrariness, perversity etc. In view of failure of the respondents to file any counter affidavit accepting the averments of the petitioner to be correct, if the impugned order has been passed based on his reply to show cause submitted on 16.4.2010 when in fact the authorities themselves were in the process of reexamining the matters to their satisfaction, clearly the impugned order is premature based on a report dated 9.12.2009 which remains inconclusive. Clearly the impugned order suffers from an infirmity in the decision making process and for that reason is not sustainable. The order dated 6.10.2010 is accordingly set aside. In view of the interim order dated 26.11.2010 the petitioner shall not be disturbed from his post as Mukhiya for a period of next four weeks only. Let the petitioner submit a representation before the Principal Secretary, Department of Panchayati Raj along with a copy of the present order whereafter the Principal Secretary shall pass fresh reasoned and speaking order in accordance with law after due opportunity to the petitioner within this period of four weeks from the date of receipt and/or presentation of a copy of this order before him. If the Principal Secretary finds justification in the claim of the petitioner the matter shall abide by such fresh orders to be passed by the Principal Secretary. If the Principal Secretary holds otherwise by a reasoned and speaking order the petitioner shall stand divested of his position as Mukhiya when it shall be open to him to assail the same in a fresh proceeding. The writ application stands allowed to the extent indicated. Snkumar/- (Navin Sinha,J.)