NAVIN SINHA, J.:–The Respondent was allotted work for ‘Protection of Araria– Bahadurganj-Thakurganj Road in the year 1999- 2000 in two parts. Non-payment after completion of works led to the institution of CWJC No. 3742 of 2000 seeking directions for payment of contractual dues amounting to Rs.65,85,364/-. The respondents inter alia objected that a writ petition was not maintainable for payment of contractual dues. On 24.4.2003, noticing that the matter was pending examination by the Cabinet Vigilance [Technical Examination Cell] Department, the Learned Single Judge opined that no positive direction could be given to make payment. After report was received and if the dues were found admitted payment should be made expeditiously.

2. The Cabinet Vigilance report dated 28.11.2003 opined that there were deficiencies in the manner in which the works were allotted and for which the officers named in the report were answerable. The work plan for construction of spurs was technically flawed. Estimate for the works had not been approved and allotment had not been received before inviting tenders. Procedures prescribed in Rule 130 ‘A’ and ‘B’ of the PWD Code had been violated in the award of works by the Superintending Engineer. Consequently the Secretary, Road Construction Department, by reasoned order dated 16.3.2004 held that the works were done without departmental approval or allotment. Provisions of the PWD Code had been violated in award of works. Government procedures for notice inviting tenders were not followed. The work plan was technically flawed. The execution of works and measurements were raising questions regarding genuineness of the bills. In the circumstances he declined to approve payment.

3. The respondent then instituted CWJC No.6525 of 2004. The Learned Single Judge held that the Cabinet Vigilance report did not dispute allotment of works, completion and quality of works. The appellants had not informed the Court about the action, if any, taken against the officers named in the Cabinet Vigilance report. Approving reliance by the respondent on 2004 [4] PLJR 371 [Binay Kumar Singh Vs. State of Bihar] and 2000 [2] PLJR 164 [M/s. S. S. L steel Ltd. Vs. Union of India] it was held that the respondent could not be answerable for procedural deficiencies on part of the authorities in awarding the works or execution as required by them. Directions were given for payment within 3 months failing which interest was to be paid at the rate of 9% till actual payment. Aggrieved, the appellants have preferred the present appeal.

4. Learned counsel for the appellants contended that the Secretary had rejected the claim by a reasoned order. The execution of the works in question was in dispute. The bills were doubtful. Procedures for award of works had not been followed. The work order itself was technically flawed. Serious and complex disputed facts were involved. Jurisdiction could not have been exercised under Article 226 of the Constitution for payment of a money claim arising out of a contract as it could not be said that they were admitted dues. The report of the Cabinet vigilance has not been properly appreciated and discussed. Part of the four spurs had been launched with no boulder pitching or inadequate boulder pitching. Twelve spurs were to be constructed under the work order. The measurement book dated 2.7.1999 records eleven spurs. Seven of them were old existing spurs. Only four new spurs had been constructed. The measurement of spur no.1 in measurement book no. 533 dated 2.7.1999 is shown as 7‘6’. In measurement book no.534 dated 19.7.1999 the same spur has been shown as approximately 10 feet. The measurement book was therefore not prepared at the site but sitting in the office. The entries in the measurement book were fictitious. Two measurement books i.e.533 and 534 had been prepared by the same Junior engineer of the same date for the same works entries which were contradictory. If the entire procedure for preparation o

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