IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15650 of 2021 ======================================================

Shiv Ranjan Kumar, aged about 49 years, male, Son of Late Bidhyadhar Prasad Singh, at present residing at Harihar Chambers, Boring Road, P.S.

Budha Colony, District Patna, Bihar.

... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, Rural Works Department, Government of Bihar, Patna.

2. The Engineer in Chief, Rural Works Department, Government of Bihar, Patna.

3. The District Magistrate, District Bhagalpur, Bihar.

4. The District Certificate Officer, District Bhagalpur, Bihar.

5. The Executive Engineer, Rural Works Department, Works Division, Naugachhia, District Bhagalpur.

... ... Respondents ======================================================

Appearance :

For the Petitioner : Mr.Prabhat Ranjan, Advocate For the Respondents : Mr. Kameshwar Pd. Gupta, GP-10 with Mr. Satyavart, AC to GP-10 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

Date : 21-03-2022 By this writ application, the petitioner has sought quashing of the entire proceedings arising out of Certificate Case No. 3 of 2021-2022, including the notice dated

14-07-2021 issued under Section 7 of the Bihar and Orissa Public Demands Recovery Act, 1914 ( for short ‘the Act’). The petitioner has also sought a direction restraining the respondents from proceeding further with the Certificate Proceedings.

2. It is submitted by Mr. Prabhat Ranjan, learned counsel for the petitioner that the amount of Rs. 13,53,362/-, which is sought to be recovered, as a ‘public demand’ within the meaning of Section 3(6) of the Act, is not a public demand.

3. In view of the said submission, it is considered useful by this Court to reproduce Section 3(6) of the Act which defines “public demand”.

“3(6) “Public demand” means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upto the date on which a certificate is signed under Part II; and”

4. In view of the reference to Schedule I in the definition of “Public demand” Schedule I also requires to be considered. Schedule I of the Act enumerates the circumstances in which any arrear of revenue which remains due may come within “Public demand”. The petitioner’s counsel has laid emphasis on Clause 9 of Schedule I which reads as follows:-

“9. Any money payable to a servant of the Government or any local authority, in respect of which the person liable to pay the same has agreed, by a written instrument, that it shall be recoverable as a public demand.”

5. The submission, therefore, is that unless an agreement by written instrument authorizing recovery of any money by resort to the Act, the Certificate Officer, as in the instant case, would have no jurisdiction and the proceeding, before the Certificate Officer, in the Certificate Case No. 3 of 2021-22, impugned in the instant writ petition, is without jurisdiction.

6. In support of this submission, he has submitted that Clause-32 of General Conditions of Contract (for short ‘GCC’) regarding defect liability period and routine maintenance of roads construction/ upgradation under the Pradhan Mantri Gram Sadak Yojana (‘PMGSY’ for short), for five years could be applied only after the works were completed. In the instant case, the work of road was not completed and the quantification of defect liability sought to be recovered as a public demand under Clause 53.1(ii) of the Standard Bidding Document (‘SBD’ for short) is thus not a public demand within the meaning of Section 3(6) of the Act. Institution of Certificate Proceedings is, therefore, wholly without jurisdiction. It is, however, not in dispute that the Contract contains an agreement in Clause 53.1(ii) of the SBD for PMGSY that money payable which remains unreco