Binod Kumar vs The State of Bihar
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4286 of 2026
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Binod Kumar, Son of Sadhu Sharan Prasad, Resident of Village and Post
Office- Baksanda, Police Station+ Block- Akbarpur, District- Nawadah.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of
Panchayati Raj, Government of Bihar, Patna.
2. The Secretary, Department of Panchayati Raj, Government of Bihar, Patna.
3. The Divisional Commissioner-cum-Lok Prahari, Magadh Division, Gaya.
4. The District Magistrate, Nawadah.
5. The Deputy Development Commissioner (i.e. D.D.C), Nawadah.
6. The Senior Deputy Collector, Nawadah.
7. The District Panchayati Raj Officer, Nawadah.
8. The Block Development Officer, Akbarpur, District- Nawadah.
9. The Block Panchayati Raj Officer-cum-Executive Officer, Panchayat
Samittee, Akbarpur, District- Nawadah.
10. The Panchayat Secretary, Gram Panchayat Raj, Baksanda, Block-
Akabarpur, District- Nawadah.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. P.N. Shahi, Sr. Advocate
Mr. Arun Kumar, Advocate
For the Respondent/s : Mr. Sanjay Kumar Ghosarvey, AC to AAG-3
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
C.A.V. JUDGMENT
Date : 08-07-2026
Heard Mr. P.N. Shahi, learned Senior counsel assisted
by Mr. Arun Kumar, learned counsel for the petitioner and Mr.
Sanjay Kumar Ghosarvey, learned counsel for the State of
Bihar.
2. The petitioner has filed the instant application for
the following reliefs :-
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“(i) For issuance of a writ in the
nature of certiorari setting aside the impugned
order bearing Memo No. 3734 dated 26.02.2026
issued under the signature of Respondent No. 2
whereby and whereunder in purported exercise
of power under Section 18(5) of Bihar
Panchayat Raj Act, petitioner being elected
Mukhiya of Gram Panchayat, Baksanda under
Block- Akbarpur, District- Nawadah has been
removed from the post of Mukhiya and has been
declared in eligible for election of any
Panchayat Bodies till further 5 years from the
date of the order (Annexure-P/11)
(ii) For issuance of an appropriate
writ/order/direction in nature of certiorari
setting aside the report of Lok Prahari-cum-
Divisional Commissioner, Gaya (Respondent No.
3) dated 14.06.2024 (Annexure-P/8) whereby
and whereunder without conducting any enquiry
in view of Section 152(5) of Bihar Panchayat Raj
Act read with Section 18(5) of the Act despite
having issued Official Gazette dated 28.11.2022
in respect of declaration of Respondent No. 3 as
Lok Prahari but only relying upon enquiry report
submitted by Respondent District Magistrate,
Nawadah it has been conducted that petitioner is
guilty under Section 18(5) of the Bihar
Panchayat Raj Act 2006 which is not proper in
the eye of law.
(iii) For further quashing the Letter
No. 2334 dated 18.11.2023 issued form the level
of Respondent District Magistrate, Nawadah
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(Respondent No. 4) which is addressed to
Respondent No. 3 whereby relying upon enquiry
report conducted by Respondent No. 6 to
Respondent No. 5 without supplying the said
enquiry report to the petitioner prior make to
necessary recommendation is in gross violation
of Principle of Natural Justice as also non
application of judicial mind of Respondent No. 4
causing much prejudice to the petitioner.
(iv) For issuance of an appropriate
writ/order/direction in the nature of mandamus
commanding and directing upon the
Respondents concerned to reinstate the
petitioner to the post of Mukhiya of Baksanda
Gram Panchayat Raj with consequential reliefs.
(v) For issuance of any other
relief/reliefs for which the petitioner is found
entitled to in the facts and circumstances of the
case by this Hon’ble Court.”
3. The case of the petitioner in brief is that he was
elected as Mukhiya of Gram Panchayat Raj, Baksanda under
block- Akbarpur in the district of Nawada on 20.11.2021.
4. As per the petitioner’s case, after holding gram
sabha certain schemes were earmarked on priority for executing
the same from the funds made available under the Sixth State
Finance Commission recommendation. A sum of Rs.3,70,400/-
on 30.4.2022 and Rs.4,64,300/- on 4.5.2022 i.e. a total sum of
Rs.8,34,700/- was withdrawn by the Panchayat Secretary for
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execution of the scheme. On an objection being raised by the
Technical Assistant (Junior Engineer) that till date he had not
received any official letter for execution of the schemes from
the fund made available under the Sixth Finance Commission to
the panchayat, the petitioner directed the Panchayat Secretary
not to execute the scheme and the entire amount was returned
back by crediting the same in the nodal account of the
panchayat on 15.6.2022.
5. A complaint was filed by a ward member of the
panchayat on 24.7.2023 before the Deputy Development
Commissioner, Nawada (‘DDC’ in short) alleging that a total
sum of Rs.8,34,700/- had been withdrawn from the account of
the Sixth State Finance fund in conspiracy with the Mukhiya and
the Panchayat Secretary. The said amount was retained for 45
days and on an oral complaint being made before the Block
Development Officer and the Block Panchayat Raj Officer, the
amount had been deposited in the Government account. A
notice dated 20.9.2023 was issued by the DDC, Nawada to the
petitioner that the matter was got inquired into by the Senior
Deputy Collector, Nawada who submitted his report dated
8.9.2023 recommending action under section 18(5) of the Bihar
Panchayat Raj Act, 2006 (herein after referred to as ‘the Act’).
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The petitioner submitted his explanation on 25.9.2023 denying
the allegations levelled in the notice.
6. A letter dated 18.11.2023 was written by the
District Magistrate, Nawada to the Divisional Commissioner–
cum– Lok Prahari , Magadh Division, Gaya enclosing the
inquiry report dated 8.9.2023 of the Senior Deputy Collector,
Nawada. Having received the notice from the Office of the
Divisional Commissioner–cum– Lok Prahari , the petitioner
submitted his explanation on 19.1.2024. The Divisional
Commissioner–cum– Lok Prahari passed an order dated
14.6.2024 making recommendations to the Principal Secretary,
Panchayati Raj Department, Government of Bihar for removal
of the petitioner from the post of Mukhiya under section 18(5)
of the Act.
7. The petitioner was served with a copy of the order
dated 14.6.2024 of the Divisional Commissioner–cum– Lok
Prahari asking the petitioner to appear. The petitioner appeared
and submitted his response. Thereafter, the Secretary,
Panchayati Raj Department, Government of Bihar came out
with the order dated 26.2.2026 removing the petitioner from the
post of Mukhiya under section 18(5) of the Act and with the
further order that he will not be eligible to contest any
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panchayat elections for the next 5 years.
8. The petitioner by way of this writ application has
challenged both the order dated 14.6.2024 of the Divisional
Commissioner–cum– Lok Prahari , Magadh Division, Gaya as
also the order dated 26.2.2026 passed by the Secretary,
Panchayati Raj Department, Government of Bihar.
9. It is submitted by learned Senior counsel appearing
for the petitioner that in view of the proviso to section 18(5) of
the Act, the Divisional Commissioner having been made Lok
Prahari vide notification dated 23.11.2022 published in the
Bihar Gazette (Extraordinary) on 28.11.2022 (Annexure-P/4),
the Mukhiya /petitioner could be removed only in light of an
inquiry and recommendation of the Lok Prahari which had not
been done in the instant case. The recommendation of the Lok
Prahari as contained in order dated 14.6.2024 was on the
recommendation of the District Magistrate, Nawada.
10. It was further contended by learned Senior counsel
for the petitioner that removal of Mukhiya in exercise of powers
under section 18(5) of the Act may be done by an order of
removal passed by the Government. So far as the order of
removal dated 26.2.2026 is concerned, the order is passed by the
Secretary of the Department which states that it has the approval
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of the Government and thus does not satisfy the requirement
under the proviso to section 18(5) of the Act.
11. Reliance has been placed by learned Senior
counsel on the judgment in the case of Anil Thakur vs. State of
Bihar & Ors.; 2021 (4) BLJ 663 .
12. The application is opposed by learned counsel
appearing for the State of Bihar. It is submitted that the
petitioner having accepted that on a complaint being filed by a
ward member, he deposited the misappropriated money
amounting to Rs.8,34,700/- with the Government and the money
having remained with him for 45 days for his personal use, the
illegal conduct and misappropriation of Government money has
been admitted by the petitioner. The allegations were further
found proved in the inquiry report submitted on 8.9.2023 by the
Senior Deputy Collector, Nawada, the inquiry conducted on the
direction of the District Magistrate, Nawada. It was submitted
that the Government money under the scheme is withdrawn
under the signature of the Mukhiya and the instant matter being
one of financial misappropriation, the judgment in the case of
Anil Thakur ( supra ) will not be of assistance to the petitioner.
Further reliance was placed by the respondents on the judgment
dated 25.2.2011 passed in CWJC no.1525 of 2011 (Shyamli
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Devi vs. The State of Bihar & Ors.) .
13. Heard learned counsel for the parties and perused
the material on record.
14. On perusal of the contents of the writ application
and the affidavits filed it transpires that the petitioner was
elected as a Mukhiya of the gram panchayat on 20.11.2021.
15. A total sum of Rs.8,34,700/- was withdrawn in
two instalments on 30.4.2022 and 4.5.2022 and subsequently on
a complaint being filed and an objection being raised by the
Technical Assistant (Junior Engineer), the total amount was
deposited back on 15.6.2022.
16. Pursuant to a complaint being filed, the District
Magistrate got an inquiry conducted by the Senior Deputy
Collector wherein the charges levelled against the petitioner
were found to be proved. A copy of the inquiry report dated
8.9.2023 was provided to the petitioner to which he submitted
his reply. The District Magistrate after receiving the show-cause
of the petitioner as also examining the contents of the inquiry
report found the petitioner to be guilty of misconduct in
discharge of his duties as Mukhiya .
17. It further transpires that the District Magistrate by
his letter dated 18.11.2023 recommended for action against
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Mukhiya /petitioner under section 18(5) of the Act.
18. By order dated 14.6.2024, the Divisional
Commissioner–cum– Lok Prahari , Magadh Division, Gaya in
light of the recommendation of the District Magistrate, Nawada
recommended to the Principal Secretary, Panchayati Raj
Department, Government of Bihar, Patna for removal of the
Mukhiya /petitioner under section 18(5) of the Act.
19. Section 18(5) of the Act is reproduced herein
below for ready reference :-
“18. Resignation or Removal of
Mukhiya or Up-Mukhiya. –
… … …… … … … … … … … ...
(5) Without prejudice to the
provisions under this Act, 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 Act, or abuses the power
vested in him or is found to be guilty of
misconduct in the discharge of his duties
[Disobedience of order of an authority
established by law or] 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 [Government]
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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.
Provided when a system of Lok
Prahari, instituted under sub-section (5) of
Section 152 comes into force by a valid
notification of the State Government, the
Government may only pass order of removal of
such Mukhiya or Up-Mukhiya, as the case may
be, in the light of inquiry and recommendation of
Lok Prahari for the removal.
[The Mukhiya or Up-Mukhiya so
removed on the charge of being found guilty of
misuse of vested powers or of misconduct in the
discharge of his duties shall not be eligible for
election to any Panchayat bodies till further five
years from the date of such removal. The
Mukhiya or Up-Mukhiya so removed on rest of
the charges 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.]”
20. On perusal of the proviso to section 18(5) of the
Act it transpires that firstly the removal of Mukhiya is to be
done on the inquiry and recommendation of the Lok Prahari and
secondly the order of removal may only be passed by the State
Government.
21. It is not in dispute that by Gazette notification
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dated 28.11.2022 (Annexure-P/4) the Divisional Commissioner
came to be declared as Lok Prahari .
22. So far as the ‘inquiry and recommendation’ of
Lok Prahari in the instant case is concerned, from the contents
of the order dated 14.6.2024 of the Lok Prahari it transpires
that the same refers to and relies upon the inquiry report of the
Senior Deputy Collector, appointed on a complaint being filed,
by the District Magistrate, Nawada and further the
recommendation is made by the Lok Prahari in light of the
recommendation of the District Magistrate, Nawada.
23. It may observed here that section 18(5) of the Act
came to be amended in the year 2011 and a proviso as quoted
herein above was introduced which specifically requires that the
order of removal of a Mukhiya is to be passed in light of inquiry
and recommendation of Lok Prahari . It is settled law that where
a statute requires a thing to be done in a particular manner, it
must be done in that manner alone or not at all. Reference may
be made to the judgments in the case of Taylor vs. Taylor;
(1875) 1 Ch. D. 426 , Nazir Ahmad vs. King Emperor; AIR 1936
PC 253 and State of Uttar Pradesh vs. Singhara Singh & Ors.;
AIR 1964 SC 358 .
24. Thus in view of the above, the judgment relied
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upon by learned counsel for the respondents dated 25.2.2011
passed in CWJC no.1525 of 2011 (Shyamli Devi vs. The State of
Bihar & Ors.) will not be of any assistance to the respondents.
25. So far as instant case is concerned, as seen above,
the removal of the Mukhiya /petitioner on the basis of the order
dated 14.6.2024 of the Divisional Commissioner–cum– Lok
Prahari , Magadh Division, Gaya not being on the inquiry and
recommendation of the Lok Prahari but being based on the
inquiry conducted by the Senior Deputy Collector and
recommendation of the District Magistrate, Nawada, in the
opinion of the Court, the order dated 14.6.2024 is not
sustainable and fit to be set aside.
26. It may further be observed here that proviso to
section 18(5) of the Act further requires that on the inquiry and
recommendation of the Lok Prahari , the order of removal of
the Mukhiya may be passed by the Government. Taking into
consideration the judgment in the case of Anil Thakur ( supra ),
the decision of the Secretary of the Department stating therein
that the same has the approval of the Government does not
satisfy the requirement of proviso to section 18(5) of the Act of
being an order passed by the Government. In this view also the
order dated 26.2.2026 of the Secretary, Panchayati Raj
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Department, Government of Bihar removing the petitioner from
the post of Mukhiya under section 18(5) of the Act and
restraining him from contesting any elections of the panchayat
bodies for a period of 5 years is not sustainable and fit to be set
aside.
27. In view of the above, in the facts and
circumstances of the case, the order dated 14.6.2024 (Annexure-
P/8) of the Divisional Commissioner–cum– Lok Prahari ,
Magadh Division, Gaya as also the order bearing no.3734 dated
26.2.2026 (Annexure-P/11) of the Secretary, Panchayati Raj
Department, Government of Bihar are both set aside.
28. This order will not come in way of the respondent
authorities in proceeding against the petitioner in accordance
with law.
29. The writ application stands allowed with the
above observations.
(Partha Sarthy, J)
avinash/-
AFR/NAFR NAFR
CAV DATE 30.06.2026
Uploading Date 08.07.2026
Transmission Date