Sachidanand Jaiswal v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.1872 of 2016 IN Civil Writ Jurisdiction Case No. 13190 of 2016 =========================================================== Sachidanand Jaiswal, Son of Sri Kako Prasad Jaiswal, resident of Gulab bag, P.S.- Sadar, District-Purnea, Proprietor M/s Vijay Mini Rice Mill, Purnea. .... .... Appellant/s

Versus

1. The State of Bihar.

2. The District Magistrate, Supaul.

3. The Superintendent of Police, Supaul.

4. The Additional District Magistrate, Supaul.

5. The Certificate Officer, Supaul.

6. The Managing Director, Bihar State Food & Civil Supplies Corporation, Limited, Patna.

7. The District Manager, Bihar State Food and Civil Supplies Corporation Ltd. Supaul.

.... .... Respondent/s =========================================================== Appearance :

For the Appellant/s : Mr. Shashi Bhushan Kumar, Advocate Mrs. Arti Kumari, Advocate For the State : Mr. Arvind Ujjwal-SC4 Mr. Upendra Pratap, Advocate For the BSFC : Mr. Aditya Sahay, Advocate =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date: 24-07-2017 Seeking exception to an order dated 26.08.2016 passed by the learned Writ Court in C.W.J.C. No. 13190 of 2016, this appeal has been filed under Clause 10 of the Letters Patent.

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2. A contract was entered into between the appellant and the Bihar State Food and Civil Supplies Corporation and in the execution of the contract in question, certain disputes seem to have occurred which ultimately resulted in proceedings being initiated and from the supplementary affidavit filed by the appellant, it seems that in accordance to the terms and conditions of the agreement arbitration proceedings are pending before the competent authority.

3. Be it as it may be, the respondent Bihar State Food and Civil Supplies Corporation in the meanwhile initiated certification proceedings under the Bihar and Orissa Public Demand Recovery Act, 1914 and in Certificate Case No. 63 of 2014-15 by an order passed on 17.03.2016, the certificate case of the respondent Corporation was allowed and challenging the order passed in the certificate case, the writ petition in question was filed.

4. The grievance of the appellant in the writ petition challenging the certification proceedings was that the amount in question is disputed. Until and unless the quantification of the amount is not undertaken by resolving the dispute or adjudicating the dispute in accordance to law by an appropriate forum, may be a civil suit or a common law remedy available, the certification proceedings was not maintainable and the learned Writ Court in the present case having not adverted to consider this question of law, learned counsel argues that

3/4 in relegating the appellant to take recourse to the statutory remedy available under the Act was unsustainable. He invites our attention to a judgment of the Patna High Court in the case of Budha Singh Vs. The State of Bihar and Ors.- A.I.R. 1981 Pat 149 to say that until and unless the amount in dispute is not adjudicated, the certification proceedings are not maintainable.

5. Even though learned counsel for the respondents refuted the aforesaid contention, we are of the considered view that while relegating the appellant to take recourse to the statutory alternate remedy available, the learned Writ Court has not considered the question as to whether the amount in question is a disputed amount or a non-disputed amount, whether the certification proceedings was maintainable without adjudication of the dispute and whether the Corporation was liable to recover the amount without resorting to any adjudicatory proceedings treating the amount to be an admitted amount beyond the realm of a disputed amount. This aspect of the matter having not been adverted to by the learned Writ Court, it is a fit case where this appeal should be allowed and the writ petition remanded back for reconsideration in accordance with law.

6. Accordingly, this Letters Patent Appeal is allowed, order dated 17.03.2016 passed in Certificate Case No. 63 of 2014-15 stands quashed and the writ petition is restored to its original file to be

4/4 considered by the appropriate Bench in accordance with law.

7. Till hearing on the interim prayer by the Writ Court, coercive steps shall remain stayed.

(Rajendra Menon, CJ) (Anil Kumar Upadhyay, J) S.Pandey/- AFR/NAFR N.A.F.R.

CAV DATE N.A.

Uploading Date 25.07.2017 Transmission Date