KIRAN DEVI v. THE STATE OF BIHAR

Having heard Mr.D.K.Sinha, leaned Senior Counsel for the petitioner and learned counsel for the State and with their consent this application is being disposed of a this stage itself. If one examines the scheme of the Bihar Panchayat Raj Act, one would find that Mukhiya is an elected of a democratically elected - 2 - self- government. He is not a paid employee much less an employee of the State Government. He is not the subordinate to the state officials. The exceptional power given to the State to remove a democratically elected member by an executive order, thus, has drastic civil consequences . It not only removed her but disqualified her from future election. It is a grave stigma on the person . Such power has thus to be exercised by the State Government not in a routine mechanical manner in very exceptional cases where interference inevitable. Unfortunately, all these are forgotten by the State Government. It is acting as an appointing authority and is exercising superintendence and control over the Mukhiya. There are two “charges” , as framed by the District Magistrate-cum- Collector, Purnea, against the petitioner. These two charges upon favour of the State Government merely because State enquiry is taken to be a graceful truth in the matter that is not the law nor the legal requirement. The charges are that in one case the Panchayat of which the petitioner is the Mukhiya and the Selection Committee of the Panchayat of which petitioner is the Chairman did not appoint a person on the ground that his father-in-law is a permanent railway employee and in the second case he employed a person of backward class ignoring the claim of extremely backward class. All that I can say is firstly that it is not the sole independent responsibility of the Mukhiya of selection and appointment, it is the Committee and hence a joint responsibility. Mukhiya individually cannot be pulled out for such a decision. Secondly, it is admittedly not a case where powers - 3 - are abused with ulterior motive. It is not a case which justifies interference at all under section 18(5) of the Act. In this connection I can do no better then refer to a recent decision of the Apex Court in the case of Sharda Kailash Mittal –v- State of Madhya Pradesh & ors. Since reported in (2010)2 Supreme Court Cases 319 wherein Apex Court was considering similar provision of the Madhya Pradesh Municipality Act and a similar exercise of power. Their Lordships also referred to earlier judgment of the Apex Court in the case of Tarlochan Dev Sharma –v- State of Punjab since reported in (2001) 6 SCC 260 = AIR 2001 SC 2524 and this is what the Apex Court had to hold: “ 24. In Tarlochan Dev Sharma –v- State of Punjab this Court while dealing with the removal of a President of the Council under the Punjab Municipal Act of 1911, held in para 7 as under : (SCC pp. 268-69) “7. In a democracy governed by the rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. ... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held.” “ 24.In para 11 this Court observed as under ;(Tarlochan Dev Sharma case, SCC pp. 270-71) “11. ... A singular or casual aberration or failure in exercise of power is snot enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is..... The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” The same consideration must be taken into account while interpreting Section 41-A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer, and the removal of such an officer is an extreme step which must be restored to only in grave and exceptional circumstances.

25. For taking action under Section 41-A for removal of the President, Vice – President or Chairman of - 4 - 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 office –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 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 view of the aforesaid facts and circusmtances, I find that impugned order of the State Government dated 2.2.2010 cannot be sustained and is accordingly set aside. The writ petition is, accordingly, allowed. (Navaniti Prasad Singh,J)