Shishir Kumar vs The State Of Bihar And Ors on 21 July, 2026

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    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
         ======================================================
         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
         ======================================================
         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
    
         ======================================================
             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
     Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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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:

    SPONSORED

    “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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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    Schedule 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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
    7/13

    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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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    thereof 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.”
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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    by 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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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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
    Patna High Court CWJC No.24644 of 2018 dt.21-07-2026
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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
     



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