Patna High Court
Shishir Kumar vs The State Of Bihar And Ors on 21 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.24644 of 2018
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Shishir Kumar Son of Nand Kishore singh Resident of Village- Basauli, P.S.-
Rajapakar, District- Vaishali At present residing Near S P'S Residence, S.D.O.
Road Hajipur, District- Vaishali
... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Panchayat Raj
Department, Government of Bihar, Patna
2. Zila Parishad, Vaishali through its Chief Executive Officer.
3. The Deputy Development Commissioner-cum- Chief Executive Officer, Zila
Parishad, Vaishali
4. Addl. Chief Executive Officer, Zila Parishad, Vaishali
5. District Certificate Officer, Vaishali District
... ... Respondent/s
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Appearance :
Appearance :
For the Petitioner/s : Mr. Prakritita Sharma, Advocate
For the State : Mr. Rohit Singh, AC to GP 6
For the Zila Parishad : M/s Shri Nandan Pd. Singh, Sr. Advocate
Surendra Prasad, Advocate
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 21-07-2026
1. The petitioner has filed the Writ
application for the following reliefs:
"i. To issue a writ in the nature of
certiorari to quash the entire
proceeding of certificate case No. 2
of 2016-17, pending before
Respondent no. 5, the District
Certificate Officer, Vaishali
registered and initiated on the
basis of a 28. 5. 16 (Annexure-3)
Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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wrongly requisition dated
mentioning Addl. Chief Executive
Officer, Zila Parisad Vaishali as
Certificate Holder for the recovery
of certain amount allotted /
advanced for performing work
under Schemes of Zila Parishad
Vaishali only on the ground that
the adjustment bill has not been
submitted without any finding of
defalcation. The amount sought to
be recovered does not qualify the
definition of Public Demand as
defined U/S 3 (6) of the Bihar
Public Demand Recovery Act
(herein after referred as the Act)
and is not recoverable Under
Article 15 (iii) of Schedule I of the
Act in absence of any written
agreement and also the Certificate
signed and filed without
application of the mind leaving
gaps and blanks unfilled vitiating
the entire proceeding and the
notice U/S 7 served without
certificate
ii. To quash the notice under
section 7 of the Act as well as the
order dated 5. 10. 2018 (Annexure
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-6) passed by the District
Certificate officer rejecting the
objection filed U/S 9 of the Act by
the petitioner without following the
procedure U/S 10 as well as
without considering and dealing
with the points raised therein.
iii. To grant leave to add, amend,
modify or otherwise vary the
grounds in support of this writ
application.
iv. To grant such other relief or
reliefs to which the petitioner may
be found entitle in equity and/ or in
law by Your Lordships in the facts
and circumstances of this case."
2. Heard the Learned counsel for the
petitioner as well as the Learned counsel for the
State.
3. At the very outset, the Learned
counsel for the petitioner contended that the issue
involved in the present Writ petition is no longer
res integra. It is contended that the issue stands
squarely covered by the order dated 03.09.2025
Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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passed in CWJC No. 19096 of 2018 (Ram Lagan
Prasad Vs. The State Bihar & Ors.) by this
Court in which this Court has passed the order in
light of a judgment passed by a Co-ordinate Bench
of this Court in CWJC No. 4332 of 1995 (Akhauri
Bijoy Kumar Sinha Versus The State of Bihar
& Ors), wherein an identical issue was considered
and adjudicated. The Learned counsel for the
parties, therefore, submit that in view of the
aforesaid judgment, the present Writ petition may
also be disposed of, in terms of the order dated
03.09.2025.
4
. In Ram Lagan Prasad (supra) this
Court has held as follows:
“5. I find substance in the
argument of the learned Counsel. The
money advanced by Rohtas Zila Parishad to
the Petitioner for execution of certain
construction work, while he was working as
Junior Engineer, is not a public demand
within the meaning of the Act. Public
demand has been defined in Sub-section (6)
of Section 3 of the Act as under:
“Public demand’ means any
arrear or money mentioned or referred to in
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5/13Schedule I, and includes any interest which
may, by law, be chargeable thereon upon
the date on which a certificate is signed
under Part II.”
Schedule I, which runs into 15
Clauses contains various types of dues,
which can be recovered as a public demand
under the Act. Thus, in order to bring the
case within a public demand it has to be
shown that the amount sought to be
recovered from the Petitioner is covered by
some Clause of Schedule I. Learned Counsel
for the Respondents has failed to show that
the amount sought to be recovered from the
Petitioner is covered by any of the Clauses
of Schedule I. Since the amount in question
is not a public demand, it cannot be legally
recovered under the provisions of the Act.
6. The impugned order of
Respondent No. 3 rejecting the objection of
the Petitioner, that the amount in question
could not be legally recovered as public
demand, suffers from an error apparent on
the face of the record and is, therefore,
liable to be quashed.
7. In the result the writ petition
is allowed and the entire proceedings of
Certificate Case No. 1 of 1993-94 including
the impugned order dated 26.6.95 of the
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Respondent No. 3 is quashed. Quashing of
the certificate proceedings will not preclude
the Respondent No. 2 from recovering the
amount, if any, due from the Petitioner by
any other mode available to him under law.
5. In view of the fact that this
matter is squarely covered by the aforesaid
order, the Writ application is allowed, in light
of the order passed in Akhauri Bijoy Kumar
Sinha (supra), and accordingly, entire
proceedings of Certificate Case No. 14 of
1913-14 including the impugned order dated
18.09.2013 (Annexure-3), distress warrant
dated 10.07.2016 (Annexure-4) issued in the
Certificate Case No. 14 of 2013-14 are
quashed. Quashing of the certificate
proceedings will not preclude the concerned
respondent from recovering the amount, if
any, due from the Petitioner by any other
remedies available to respondent under law.
6. With the aforesaid observations,
this Writ petition is allowed in terms of order
passed in Akhauri Bijoy Kumar Sinha
(supra).”
5. The Learned counsel for the
petitioner further relied upon the judgment passed
in Rabindra Nath Singh Vs. State of Bihar
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reported in 2007(1) PLJR 192 as well as an
order passed by a Co-ordinate Bench of this Court
in Brij Mohan Prasad V. State of Bihar reported
in 2008 SCC Online Pat 1157.
6. The relevant paragraphs i.e.,
paragraph Nos. 6 to 9 of Rabindra Nath Singh
(supra) are quoted hereinabove:
“6. Having considered the
matter and with the consent of the
parties I dispose of this writ application at
the stage of admission itself. The question
is whether the said recoverable money is
a public demand or not. In other words,
whether any misappropriated or
defalcated automatically ipso facto
becomes a public demand and can be
recovered by process taken under the
Public Demand Recovery Act, 1914.
Learned counsel for the State has sought
to rely on Entry 8A Schedule I of the
Public Demand Recovery Act. He submits
that in view of Sec.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. In view
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8/13thereof Entry 8A of Schedule I is relied on
which is quoted:-“Any outstanding loans
and advances payable to State
Government or to a Department or official
of the State Government by anybody
whatsoever.”
7. In my view, this entry is
wholly inapplicable to a case of
defalcation of the present nature. The
Entry clearly speaks of loan and advance.
These expressions clearly denote that
some amount is given to a person who
has to return the same. It is not that he
has merely to account for. Therefore, it
appears that a money can be public
demand under Entry 8A of List I it must
be shown that this was a loan and
advance by the Government to the
person which the person was required by
law to refund or return or repay. In the
present case the money which was given
for distribution as scholarship cannot be
termed as a loan and advance bringing it
within the meaning of Entry 8A of
Schedule I of the Public Demand Recovery
Act.
8. That being so, it is not a
public demand. It follows that if it is not a
public demand then resort to the
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provision of the Public Demand Recovery
Act would be clearly illegal, without
jurisdiction and abuse of the process of
the Court. Needless to say that the
proceeding which is wholly without
jurisdiction a party is not required to
submit to the jurisdiction and take an
objection as regards the jurisdiction. A
party has an opportunity to come to this
Court directly and challenge the
jurisdiction and is entitled to relief by this
Court.
9. The proceedings being
wholly without jurisdiction, in my view,
leaves no discretion to this Court. It is
established that no person can be
deprived of his life, liberty or property
except by authority of law and by
procedure established by law. As in the
present case the petitioner is sought to
be deprived of his life and liberty
(Coercive steps contemplated under
Public Demand Recovery Act) and his
property (Attachment and other provision
of the Public Demand Recovery Act)
under the law which has no application.
Thus, it has to be held that the
proceedings are in violation of Articles 14,
21 as well as 300A of the Constitution.”
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7. The relevant paragraphs i.e.,
paragraphs of Brij Mohan Prasad (supra) are
quoted hereinabove:
“8. Learned counsel for the petitioner
relies on Board’s Instruction 10 in respect
of implementation of the Act.
“Certificate procedure not to be used
where there is any doubt of debtor’s
liability.– Requiring officers should bear
in mind that the certificate procedure is
intended only for the recovery of sums
regarding which there is no doubt of the
liability of the debtor. Cases in which the
debtor is likely with some show of reason
to deny his liability should be reported
with a view to institution of civil suits.
No such certificate shall be made in
respect of any demand the recovery of
which is barred by any law of limitation
for the time being in force. In the case of
rent due to Wards and Government estate
the period of limitation depends upon the
Tenancy Act applicable and is determined
by Schedule-III Part-I of the Bihar Tenancy
Act or Section 234 of the Chota Nagpur
Tenancy Act, as the case may be.
The period of limitation for certificate filed
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11/13by the examiner of Local Account under
the Local Fund Audit is three years from
the date of the order of surcharge.”
11. Certificate proceedings are
proceedings for recovery of ascertained
dues. It is not a proceeding where the
Certificate Officer is to act like a Civil
Court and determine the liability. The
liability is, prima facie, predetermined
and the proceedings are only for recovery
of those predetermined liability.
13. Board’s Instruction 10, as quoted
above, also comes to the aid of the
petitioner. The petitioner could only be
proceeded against if in any departmental
proceeding he is held guilty. In such a
departmental proceeding petitioner would
have a right to defend himself against the
alleged defalcation. The department
would be required to establish defalcation
by evidence and the petitioner would
have a right to rebut the same.
14. Regrettably, no such proceedings
were ever taken up against the petitioner,
yet the petitioner is held guilty of
defalcation and is being proceeded
against for recovery of the assumed
liability of the petitioner. This cannot be
permitted. Therefore, this Court has been
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left with no option but to set aside the
certificate proceeding on the ground, as
indicated above, in so far as the
petitioner is concerned. The certificate
proceeding would continue as against the
rest. The writ petition is thus allowed and
the certificate proceeding as against the
petitioner being Certificate (Misc) No.
17/04-05 pending before the Certificate
Officer, Patna, is quashed.”
8. In view of the fact that this matter is
squarely covered by the aforesaid order, the Writ
application is allowed, in light of the order passed
in Ram Lagan Prasad (supra), and accordingly,
entire proceedings of certificate case No. 2 of
2016-17, pending before Respondent no. 5, the
District Certificate Officer, Vaishali including the
requisition dated 28.05.2016 (Annexure-3), Notice
dated 5. 10. 2018 (Annexure -6) ) issued in the
certificate case No. 2 of 2016-17, are quashed.
Quashing of the certificate proceedings will not
preclude the concerned respondent from
recovering the amount, if any, due from the
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Petitioner by any other remedies available to
respondent under law.
9. With the aforesaid observations, this
Writ petition is allowed in terms of order passed in
Akhauri Bijoy Kumar Sinha (supra).
10. Interlocutory Application(s), if any,
shall stand disposed of.
(G. Anupama Chakravarthy, J)
Spd/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 23.07.2026 Transmission Date
