DAVE, C. J. - (1.) BOTH the writ applications noted above have been filed under Art. 226 of the Constitution of India and since common questions of law are involved in them, they are disposed of together.
(2.) IN order to appreciate the points which have been raised in this Court, it would be proper to narrate the facts of the first case No. 294 of 1962. The case of first petitioner Dhannaram son of Dungaram is that he was appointed as an authorised retail dealer in food grains by the erstwhile Jodhpur State in the year 1946 under the Marwar Rationing Order, 1946. An agreement dated the 7th June, 1946, was accordingly executed between him and the Chief Rationing Officer. The petitioner used to supply rationed wheat in terms of the said agreement. The petitioner proceeds to say that on the 10th May, 1958, a certificate under sec. 4 of the Rajasthan Public Demands Recovery Act, 1952 (Act No. V of 1952, hereinafter referred to as the Act) was issued against him for recovery of Rs. 1504/8/- for the cost of 1316 empty gunny bags supplied to him during the said period. The petition is not happily drafted, but the case as put up by the petitioner's learned counsel at the time of arguments, is that his client did not dispute the fact that 1316 empty gunny bags were supplied to his client. It is however urged that his client was required to pay the cost of the said bags at the rate of Rs. 1/6/- per bag which was never settled between the parties. According to him, the prevailing prices during the period in which the gunny bags were supplied 10 him ranged between 11 and 12 annas per bag and his client did not express his unwillingness to pay up the cost at the rate. The rate of Rs. 1/6/-per bag fixed by the opposite party was arbitrary and unilateral and so the petitioner was under no obligation to pay the amount demanded from him at that rate. It is contended that the demand raised against the petitioner was not covered by sec. 2 (5) of the Act. It is, therefore prayed that the certificate of demand issued against him should be quashed. The facts of the next case No. 313 of 1962 are similar to those of the first one except that the amount demanded from the petitioner is Rs. 481/8/- in respect of 572 empty gunny bags. Both the applications are contested on behalf of the respondents, and it is pointed out that the petitioners were bound according to their agreement, either to return the empty gunny bags which were supplied to them or to pay their cost at the rate of Rs. 1/6/- per bag, which was fixed by the Commissioner, Civil Supplies, Rajasthan, Jaipur by his circular Ex. 2, dated the 3rd/4th April, 1961. It would appear from the above narration of facts that the main question which arises for our determination is whether the amounts in respect of which the certificates under the Act have been issued against the petitioners are covered by sec. 2 (5) of the Act. The term 'public demand' has been defined by sec. 2 (5) of the Act as follows: "public demand" means any arrear of money mentioned or referred to in the schedule to this Act, and includes any interest which may by law be chargeable thereon upto the date of the signing of a certificate in respect thereof under sec. 4. " The schedule referred in the said definition contains ten clauses and it is unnecessary to reproduce all of them because according to the learned Deputy Government Advocate, the demand made from the petitioners would be covered only by clause (6) which runs as follows: "any money payable to the Government or to a department or an officer of Government under or in pursuance of a written instrument or agreement. " It is obvious from the language of clause (6) that it would cover only that amount which may be payable to the Government or to department or an officer of the Government under or in pursuance of a written instrument or an agreement. It is common ground between the parties that the only agreement which was executed between them was the one which is marked as Ex. A. They have not referred to any other agreement or written instrument. We have carefully gone through Ex. A and we find that there is no reference therein to gunny bags much less to the cost thereof. It cannot, therefore, be urged with any justification on the part of the respondents that the dispute between the parties was governed by Ex. A. Learned Deputy Government Advocate has no doubt referred to the circular of the Commissioner, Civil Supplies, Rajasthan, Jaipur dated the 3rd/4th April, 1951, marked as Ex. 2, but that circular cannot take the place of an agreement or written instrument referred in clause (6) of the Schedule, firstly because it is unilateral and secondly because it was issued in April, 1951, and could not have a retrospective effect. In the reply which has been filed on behalf of the non-petitioners, it is admitted that the cost of empty gunny bags due from the petitioners related to supplies made to them during the period commencing from the 21st July, 1946, to the 20th July, 1949. It is apparent from the respondents' own reply that the circular Ex. 2 was issued long after the said period of time and it could not operate retrospectively. Moreover, the Commissioner, Civil Supplies, could not unilaterally fix the rate of the gunny bags and public demand could not be raised on its basis under clause (6) of the Schedule. It may be further pointed out that a plain reading of Ex. 2 shows that a meeting of the Deputy Commissioners, Civil Supplies, was held on the 2nd April, 1951, and in that meeting, the question of revision of the sale-rates of gunny bags was discussed. After discussion, it was decided that in view of the increase in purchase rates, the existing sale-rate may be raised to Rs. 1/6/- per bag. According to this decision, all Deputy Commissioners, Civil Supplies, and others who were concerned in the matter were advised that the charge at the rate of Rs. 1/6/- per bag should be made at the time of issuing old bags of grain with immediate effect. It is clear from the language of this circular that the rate of gunny bags was lower and different before the 2nd April, 1951. The circular does not mention what the old rates were but it certainly gives an indication that a lower rate was being charged before that date, and the question about the revision of rates was under consideration. It was thought proper to raise the cost of the gunny bags because the purchase rate in the market had increased. The circular further shows that it did not mean to advise the Deputy Commissioner and others concerned to charge the rate of Rs. 1/6/- per bag in respect of old transactions. The said rate was to be charged with effect from the date of the circular. The opposite parties themselves have not been able to establish if a public demand as defined by the Act was properly raised against the petitioners. It is not meant to suggest that the non-petitioners would not be able to realise the cost of the gunny bags from the petitioners but that amount cannot be realised by issuing a certificate under the Act because the demand is not covered by sec. 2 (5 ). Both the writ applications are, therefore, allowed and the certificates issued against the petitioners are hereby quashed. In view of the fact that the petitioners have not denied their liability and the dispute is only about the rates, we leave the parties to bear their own costs. . ;