Patna High Court
Sone Valley Rice Mill vs The State Of Bihar & Ors on 22 July, 2014
Equivalent citations: AIR 2015 PATNA 35, (2014) 3 PAT LJR 819
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13746 of 2013
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Sone Valley Rice Mill At- P.O. Sahuka, Ramgarh, District- Kaimur (Bhabhua)
Through Its Proprietor Sudhakar Singh, Son Of Sri Jagdanand Singh, At-P.O.-
Sahuka, P.S.- Ramgarh, District- Kaimur (Bhabhua)
.... .... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Govt. Of Bihar, Patna
2. The Bihar State Food and Civil Supply Corporation Through Its Managing
Director, Sone Bhavan, Veerchand Patel Path, Patna
3. The District Manager, State Food Corporation, Kaimur at Bhabhua
4. The Certificate Officer-Cum-Senior Deputy Collector, Kaimur at Bhabhua
5. The Circle Officer, Ramgarh, District- Kaimur at Bhabhua
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Vinod Kantha, Senior Advocate
Mr. Dinu Kumar, Advocate
Mr. Arvind Kumar Sharma, Advocate.
For the F.F.S.C. : Mr. R.S.Pradhan, Sr. Advocate.
Mr. Shailendra Kumar Singh, Advocate.
Mr. Amrendra Narain Rai, Advocate.
For the FCI : Mr. Prabhakar Tekriwal, Advocate.
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
ORAL JUDGMENT
Date: 22-07-2014
Heard learned counsel for the parties.
2. The prayer of the petitioner in this writ application
reads as follows:-
"1(I) For quashing the proceeding of Certificate Case No.
36(Y)2012-13 initiated against the petitioner by
Certificate Officer-cum-Senior Deputy Collector,
Kaimur at Bhabhua under the Bihar & Orissa Public
Demand Recovery Act, 1914 with regard to alleged
Public demand of Rs. 4,66,68,330/-.
(II) Also for quashing the notice as contained in
Annexure-8 issued by the Certificate Officer, Kaimur
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at Bhabhua in Case No. 36(Y)2012-13 with regard to
certificate for Rs. 4,66,68,330/- (Rs. Four Crores,
Sixty Six Lac, Sixty Eight Hundred, Three Hundred
Thirty) to that extent office order vide memo no. 12
dated 13.05.2013 was issued under the signature of
Certificate Officer, Kaimur at Bhabhua whereof copy
was also issued to the Circle Officer, Ramgarh,
District-Bhabhua for service of notice.
(III) Also for directing the respondents especially
Certificate Office-cum-Senior Deputy Collector,
Kaimur at Bhabhua to not proceed with in case no.
36(Y)2012-13 instituted against the petitioner."
3. Mr. Vinod Kanth, learned senior counsel appearing for
the petitioner, has submitted that the initiation and continuation of the
certificate proceeding under the provision of the Bihar Public Demand
Recovery Act, 2014 (hereinafter to be referred to as 'the Act') against
the petitioner is wholly without jurisdiction, inasmuch as, the amount
involved in certificate proceeding is not a public demand as defined in
Section 3(6) of the Act. He has further submitted that there is infact an
inter-parte agreement between the petitioner and the Bihar State Food
& Civil Supplies Corporation (hereinafter to be referred to as 'the
Corporation') as with regard to performance of certain work by the
petitioner awarded by the Corporation but, the same does not envisage
that any amount allegedly due against the petitioner can be recovered
by taking recourse to certificate proceeding under the Act.
4. Mr. Kantha in this regard has also placed by him on a
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judgment of this Court in the case of M/s Murlidhar Sohanlal v. State of
Bihar and Others reported in 1998 (3) PLJR 526 which, according to Mr.
Kanth, squarely covers the case of the petitioner, inasmuch as, the
said judgment was rendered with regard to the similar contemplated
recovery of dues of a firm by this very Corporation wherein it was
held by this Court that in absence of a written instrument between the
certificate debtor and the certificate holder (Corporation), the recourse
to certificate proceeding in terms of Clause-15 of Schedule-I of the
Act was wholly without jurisdiction. Mr. Kanth has also disputed the
amount of dues claimed by the Corporation to the tune of Rs.
4,66,68,330/- which has been sought to be recovered from the
petitioner by way of certificate proceeding on various grounds
including non-fulfillment of the terms and condition of the agreement
by the Corporation and, according to him, the demand notice issued
by the Corporation to the petitioner for recovery of Rs. 4,61,49,152/-
was itself wholly unsustainable on fact and in law due to breach of
terms and conditions by the officials of the Corporation.
5. Per contra, Mr. R.S. Pradhan, learned senior counsel
for the Corporation, has taken a stand that though it is true that there is
no written agreement between the petitioner and the Corporation for
recovery of the alleged dues of the Corporation by taking recourse to
certificate proceeding under the Act but, then, the paddy, in question,
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entrusted to the petitioner by the Corporation, was actually the
property of the State Government of Bihar and the Corporation had
only acted as a nodal agency either in entrusting such paddy to the
petitioner or making demand for dues from the petitioner. According
to Mr. Pradhan the certificate proceeding against the petitioner
therefore, will be very much maintainable in view of Entry No. 8A of
Schedule-I of the Act. Reference in this regard has been placed by
him on a judgment of this Court in the case of Binod Kumar Yadav v.
State of Bihar & Ors. reported in 2003 (1) PLJR 215. Mr. Pradhan has
highlighted that the petitioner was given 37,401.60 quintals of paddy
and since he did not returned the Customed Milled Rice to the
proportionate quantity of 249.08 quintals, it had become liable to pay
its price at the rate of Rs. 1903.13 per quintal totaling to the tune of
Rs. 4,61,49,152/-.
6. In the light of the aforementioned submission, the first
and foremost question which would go to the root of the matter is as
to whether a certificate proceeding against the petitioner under the Act
is maintainable?
7. From the facts of this case and in fact a large number
of cases which have been heard together today, it is absolutely clear
that such agreement for either supply of paddy or collection of rice on
payment of milling and transporting charges was entered into between
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the Corporation and the concerned rice mill. In the present case also in
fact an agreement much before the aforesaid government policy as
explained the letter of Corporation dated 24.1.2012 (Annexure-D to
the counter affidavit) had been entered on 22.12.2011 vide Annexure-
1 to the writ application which, for the sake of clarity, is quoted
hereinbelow:-
"Execitopm of bond frained under terms and
conditions with the District Manager, Bihar State Food &
Civil supplies Corporation Ltd. District Office, Bhabua
regarding lifting of Paddy and delivering of advance Rice
against paddy lying in the godowns/procurement Centres
under District Office of Bihar State Food & Civil Supplies
Corporation Ltd. Bhabua under custom milling of paddy.
I, the proprietor of M/s Sone Valley Rice Mill declared
that I am willing to mill, Bihar State Food & Civil Supplies
Corporation Ltd. Paddy lying at the Ramgarh centre under,
Bihar State Food & Civil Supplies Corporation Ltd. District
Office Bhabua on delivery of Rice RBC/RRC in advance as per
Govt. of India specification and as per terms and conditions of
Bihar State Food & Civil Supplies Corporation Ltd. in vogue.
1. M/s Sone Valley Rice Mill Registration No. 100311100565
date 05/06/2009 valid upto ............ issued by Directors of
Industry Govt. of Bihar, (VAT No. 10181599084) will
deliver advance rice raw/per boiled confirming to Govt. of
India uniform specification for KMS 2011-12 in 50 Kg. net
packing.
2. After deliver of advance rice proportionate paddy will be
issued to the miller by Bihar State Food & Civil Supplies
Corporation Ltd. Bhabua.
3. Rice will be accepted in the same Gunny Bags in which the
paddy is delivered by the corporation. For the First
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consignment/lot, rice will be delivered by the miller in new
SBT gunnies. The excess gunny will be paid by the miller
or deducted from the bills submitted by the miller.
4. The miller has already deposited Rs. 50000/- as security
money through DD No. 368252 dt. 21.12.2011 Rs. 50,000/-
in favour of District Manager Bihar State Food & Civil
Supplies Corporation Ltd. Bhabua.
5. Out turn ratio for par boiled rice is 68% and for raw rice
in 67% on "As is where is basis and by product, broken
etc. obtain from milling shall be property of miller.
6. Rs. 25/- per quintal of paddy milling charge will be paid
for par boiled rice and Rs. 15/- per quintal milling charge
will be paid for raw to the miller after getting the proper
bill from the miller.
7. Rice shall be bagged in standard weight of 50 Kg. and all
bags are to be double machine stitched in green thread and
bags should be duly stenciled with green colour showing
name of the miller and station, crop year, net weight
commodity, variety and lot No.
8. Price of Excess Gunny bags (in which paddy supply to
milder) will be deducted by the corporation at the rate of
60% of New Gunny bags price.
9. This miller will supply rice to be tagged depot of Food
Corporation of India in advance within 7 (seven) days on
getting Release order from Bihar State Food & Civil
Supplies Corporation of receipt of rice at F.C.I. and
proportionate paddy will be actually released by Bihar
State Food & Civil Supplies Corporation Ltd. Bhabua to
the miller from different procurement Center.
10. Transportation charge @ 17 paise per quintal per
kilometer for distance upto 100 Kms excluding 8 K.M. is
adurissible for milling of paddy. Transportation charges in
respect of delivery of rice will be restricted to the nearest
F.C.I. rice receipt centre.
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11. In case of any deviation from above agree to terms and
conditions any default on the part of the miller, security
money deposited by the miller will be forfeited by the
corporation and legal action against the miller shall be
taken.
12. The miller also agreed to abide by the instruction issued
from time to time by the Bihar State Food & Civil Supplies
Corporation/relating to miller of procured paddy.
Sd./- 22.12.11 Sone Valley Rice Mill
District Manager SD./- Sudhakar Singh
Bihar State Food & Civil Proprietor
Supplies Corporation
Date 22.12.11"
(underlining for emphasis)
8. From a bare reading of the aforementioned agreement
between the petitioner and the Corporation and specially its
underlined portion it is absolutely clear that such agreement was
entered between the Corporation and the petitioner regarding lifting of
paddy and delivery of advance rice against paddy lying in the go-
down in the authorized district offices of the Corporation. Added to it
the said agreement was made only after the petitioner had deposited
the security money to the Corporation to the tune of Rs. 50,000/- on
21.12.2011. The different clauses of agreement, therefore, will leave nothing for speculation that a relationship for performance of the contract of either procuring paddy by the petitioner, a rice mill, from the Corporation or its being returned in the form of CMR to Corporation was confined exclusively between the petitioner and the Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 8/19 Corporation.
9. The term of agreement in fact also makes it clear that it was the Corporation which had to pay the milling charges of CMR after getting the bill from the rice mill, in question. The accounting procedure given by deducting the price of excess gunny bags supplied to the rice mill by the Corporation is again a proof of the fact that the entire amount with regard to supply of paddy to the rice mill and its being returned by the rice mill in the form of CMR was between the Corporation and the concerned rice mill. As a matter of fact, Clause- 11 & 12 of the agreement will be a complete answer to the submission of Mr. Pradhan that the transaction, in question, in the form of agreement between the Corporation and the rice mill had no where indicated the said paddy to be the property of the State Government being made available to the petitioner rice mill on or on behalf of the State Government. As a matter of fact when on deviation on the part of the rice mill by way of default, the security money deposited by the petitioner miller as per clause 11 of agreement could be forfeited by the Corporation and even legal action was to be taken against the petitioner only by the Corporation, it will be too late in the day to now read into this agreement with the Corporation was a mere name lender and had entered into the agreement on behalf of the State Government.
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10. Let it be noted that the Corporation is a government company under Section 617 of the Company Act in which the State of Bihar and its officials hold 100% shares. The Corporation however as per the Memorandum of Article of Association having set out its object in detail including undertake the business of purchasing, storing, transporting, distributing, stocking and movement of food grain and other food stuffs in the State of Bihar and elsewhere cannot be heard to say that when it had entered into the agreement with the petitioner on 22.12.2011, it was not acting in its independent capacity. As a matter of fact, Clause-14 of the Memorandum of Association of Corporation would make it further clear that the Corporation itself had set out its one of the object to enter into any arrangement with the Government of India or Government of Bihar for the purpose of carrying out the object of the company and, therefore, whatever may have been the government policy decision with regard to procurement of paddy and obtaining CMR, the same was well within the framework of the object of the Corporation. Article 76(7) of the Article of Association of the Corporation infact also authorizes the Corporation to institute, contact, defer, compound or abandon any legal proceedings by or against the company or its officers or otherwise concerning the affairs of the Company and also to compound and allow time for payment of satisfaction of any claims or Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 10/19 demands by or against the Company i.e. Corporation.
11. Therefore, when an agreement was entered into between the Corporation and the petitioner in keeping with the objects, power and function of Corporation as set out in Memorandum and Article of Association of the Corporation, it will be difficult to accept the submission of Mr. Pradhan that the paddy, in question, was government property and the same was given by way of advance to the petitioner so as to make entry no. 8A of Schedule-I of the Act applicable. Entry No.8A of Schedule-I of the Act has to be essentially read in the light of the definition of the expression (Public demand) as per under Section 3(6) of the Act, which reads as follows:-
"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;"
12. It thus becomes clear that in order to institute a certificate proceeding for recovery of any money by way of public demand it has to be essentially covered by any of the entry made in Schedule-I. Schedule-I has 15 entries including entry no. 8A, which reads as follows:-
"8-A. Any outstanding loans and advances payable to State Government or to a Department or Official of the State Government by any body whatsoever."
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13. A question however would be was any loan and/or advance given to the petitioner by the State Government or by the Department of the State Government or by the officer of the State Government. There is infact nothing on record to show any transaction directly involving the petitioner as with regard to procurement of paddy by way of loan/advance from the State Government or Department of State Government or official of the State Government.
14. The reliance placed by Mr. Pradhan on a government policy of procuring paddy contained in memo no. 9624 dated 7.12.2011 issued by the Department of Food and Consumer Protection wherein was the Corporation which had been nominated as a nodal agency to implement the government programme for procurement of paddy is also wholly misplaced. As a matter of fact, from a bare reading of the aforesaid government letter dated 7.12.2011, it would be clear that the Government had only fixed the price for procurement of paddy as also authorized the Corporation to work as a nodal agency for implementing the programme. The aforesaid government decision however, does not in any way make the government directly responsible for entering into any agreement with the rice mill to whom the paddy was to be handed over by the Corporation for its being returned in the form of Customed Milled Rice (CMR) only to Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 12/19 the Corporation. This would in fact become very clear from the contents of follow up letter issued by the Corporation on 24.1.2012 as contained in Annexure-D to the counter affidavit wherein it was said that a decision was taken at the level of cabinet minister that for implementing the aforesaid government decision dated 7.12.2011 it was that the district administration which should enter into agreement with rice mills and the Corporation had to only ensure that the stored paddy is made available to the concerned rice mill.
15. Let it be noted that had it been a government loan or advance in terms of the Entry 8A, the requisition was to be filed by the State Government and/or its officials of the Department but here it is on record that such a requisition in terms of Form-I for the certificate of public demand was filed by the District Manager of the Bihar State Food Civil Supply Corporation, Kaimur, Bhabhua in capacity of Certificate Holder. Consequently, notice issued under Form-III against the petitioner on 13.5.2013 as contained in Annexure-A also bore a clear endorsement that the certificate against the petitioner for Rs. 4,66,68,330/ which was said to be payable by way of dues on account of District Manager, Bihar State Food Civil Supplies Corporation, Kaimur was to be recovered from the petitioner. Thus, the requisition of the District Manager, Bihar State Food Supply Corporation, Bhabua dated 10.5.2013 in Form-II in Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 13/19 terms of Section 5 of the Act will again leave nothing for speculation that such requisition was out and out a requisition of the Corporation in terms of the agreement but if that agreement being a written instrument itself did not contemplate realization of the amount from the petitioner by way of recovery of the amount from him by way of public demand, the consequential certificate issued by the Certificate Officer on 11.5.2013 in Form-I and the notice under Section 7 of the Act issued on 13.5.2013 as also the further entire proceeding of the Certificate Case No. 36(Y)/2012-13 would be essentially wholly without jurisdiction.
16. As noted above, there is an agreement only between the Corporation and the petitioner, rice mill, that on supply of paddy by the officials of the Corporation, the petitioner, rice mill, shall return CMR and would be entitled to get milling and transporting charges. In the event of failure of the rice miller to do so, legal action could be only be taken by the Corporation, which had also power to confiscate the security amount of the rice miller. Thus, this Court will have no difficulty in holding that the only way the Corporation could have instituted certificate proceeding for recovery of the amount under the demand notice issued to the petitioner was in the event of there being a written instrument wherein the petitioner had agreed for recovery of amount by way of public demand. This would become Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 14/19 absolutely clear from entry no.15 to the Schedule-I of the Act which reads as follows:-
"15. Any money payable to
(i) State Bank of India constituted under the State Bank of India Act, 1955 (No. 23 of 1955)
(ii) a Bank specified in column (2) of the first schedule to the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (Act V of 1970); or
(iii) a company or a statutory body, including a registered society carrying on financial transaction, owned by or in which, Government has a majority of shares or which is managed by an authority appointed under any law for the time being in force;
or
(iv) the Bihar State Electricity Board.
in respect of which the person liable to pay the same has agreed, by a written instrument that it shall be recoverable as public demand."
17. In the present case and in fact the other similar cases which have been heard today, all the agreements entered into between the Corporation and the concerned rice mill including the petitioner for the year 2011-12, there is no stipulation that the amount payable by the rice mill in the event of not returning the CMR could be realized by taking recourse to certificate proceeding. On the other hand, this Court, while hearing the batch of writ applications listed today, has found that in all the agreement entered into between the Corporation and the Rice Miller for the year 2012-13, there is a Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 15/19 specific provision in Clause-15 for recovery of such amount from the concerned rice miller by taking recourse to the certificate proceeding and that has been agreed by the concerned rice miller.
18. Thus, it is this basic difference in the two types of agreements whereas for the financial year 2011-12 including the case in hand and the other cases where Clause-15 of the agreement for the year 2012-13, that would be clincher on the issue that the Corporation itself became subsequently wise to make a provision for recovery of its dues against the concerned rice miller by taking recourse to certificate proceeding. This Court, therefore, will have no difficulty in holding that in all the agreement including one of the petitioner of the financial year 2011-12 where there is no provision for recovery of the amount by taking recourse to certificate proceeding under the Act, the same cannot be realized by way of instituting and/or continuing with the certificate case.
19. The view that this Court has taken in the present case also finds support from an earlier judgment in the case of M/s Murlidhar Sohanlal (supra) wherein as with regard the action of this very Corporation of realization of the dues by taking recourse to certificate proceeding under the Act was considered at length after noticing the provision of Entry No. 15 of Schedule-I of the Act and it was held as follows:-
Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 16/19 "4. From a bare perusal of the aforesaid provision, it would appear that dues of the respondent Corporation can be realized through a certificate proceeding and treated as public demand if the person liable to pay the same has agreed by a written instrument that it shall be recoverable as public demand. In the present case, the petitioner has categorically stated in the writ application that no such agreement has been entered into by the petitioner with the respondent Corporation.
5. A counter affidavit has been filed on behalf of the respondent Corporation, paragraph 10 whereof reads thus:-
"10. That in reply to the statement made in paragraph 12 of the writ application, it is submitted that it is not correct that there was no agreement all together. In this regard Clause 23 of the agreeemnt is referable, "all sums due to the Corporation can be realized by any manner the Corporation deems fit."
Hence the claim to this effect enlarges scope for jurisdiction under the Act and impliedly there is an agreement to recover the dues by any mode including as public demand."
From a bare perusal of paragraph 10 of the counter affidavit, wherein relevant clause of agreement has been quoted, it would appear that the Corporation could realize its dues in the manner it deemed fit and proper. It has nowhere been stated in the agreement that the dues shall be recoverable as public demand.
6. This being the position, in my view, in absence of any agreement as required under law the dues of the Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 17/19 Corporation against the petitioner could not be treated a public demand within the meaning of the Act and realized thereunder. Therefore, action for realization of the same through a certificate proceeding initiated by the District Certificate Officer, Saharsa and impugned orders passed therein are per se invalid and liable to be quashed."
20. This Court, therefore, is of the opinion that the case in hand of the petitioner is also squarely covered by the ratio laid down in the case of M/s Murlidhar Sohanlal (supra).
21. The reliance placed by Mr. Pradhan on the judgment of this Court in the case of Binod Kumar Yadav (supra) is wholly misplaced, inasmuch as, from reading of the same, it would be clear that the petitioner in that case had taken an advance for construction of RCC Road Bridge from the government department and, therefore, the provision of Entry 8A was sought to be relied for holding that the certificate proceeding as with regard to the advance given by the State Government or its officials of the Road Construction Department was maintainable. Thus, there would be no difficulty for this Court to hold that the ratio in the case of Binod Kumar Yadav (supra) will be of no help and avail to the facts of the present case.
22. There is also no escape from the settled position in law that unless the money due is a public demand, the certificate proceedings under the Act cannot be instituted much less continued. Patna High Court CWJC No.13746 of 2013 dt.22-07-2014 18/19 Reference in this connection may be usefully made to the division bench judgment of this Court in the case of Narendra Narayan Singh Vs. State of Bihar and others reported in 2002(2) PLJR 176.
23. Thus when the amount sought to be recovered from the petitioner is not public demand within the meaning of Section 3(6) of the Act, there can also be no escape from the irresistible conclusion that recourse to certificate proceedings against the petitioner under the Act would be clearly illegal without jurisdiction and abuse of process of court. This aspect of the matter has also been considered in an earlier judgment of this Court in the case of Rabindra Nath Singh Vs. State of Bihar & Ors. reported in 2007(1) PLJR 192 relevant portion whereof reads as follows:-
"8. ...... 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 partly 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 others 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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24. That being so, this writ application is allowed and the entire proceeding of Certificate Case No. 36(Y)/2012-13 including the impugned notice under Section 7 of the Act dated 13.05.2013 as contained in Annexure-8 is hereby quashed.
25. It is, however, made clear that nothing said in this judgment shall stand as a bar in realization of the dues amount from the petitioner by taking appropriate legal action in terms of Clause-11 of the agreement between the petitioner and the Corporation.
(Mihir Kumar Jha, J) Patna High Court Dated 22nd of July, 2014 A.F.R./Sujit/Rishi U