C. M. LODHA, C. J. - (1.) THIS is a writ petition under Art. 226 of the Constitution of India whereby the petitioner has challenged the recovery of an amount of Rs. 11879/-, from him under the provisions of the Rajasthan Public Demands Recovery Act, 1952 (Act No. V of 1952) (hereinafter to be referred to as the Act) and has prayed that the orders passed by the Additional Collector, Udaipur, dated February 3, 1972, as also the appellate order passed by the Revenue Appellate Authority, Udaipur, dated December 23, 1972, upholding the order of the Additional Collector and the order passed by the Board of Revenue for Rajasthan Ex. 5 dismissing the petitioner's revision-application be set aside.
(2.) THE relevant facts giving rise to this writ-petition are these : - A contract for the excise shop of Hati Pol City No. 1 was sanctioned for Samvat year 2006 for Rs. 23000/-, in favour of the petitioner, against whom a sum of Rs. 11879/-, was found to be outstanding. The District Excise Officer, Udaipur, therefore, submitted a requisition for recovery of the said sum to the Collector, Udaipur, under sec. 3 of the Act. On receipt of the requisition, the Collector, after satisfying himself that the said amount was recoverable under the provisions of the Act, signed the certificate and issued a notice in the prescribed form to the defaulter Kalu, accompanied by the said certificate, directing the defaulter to deposit the amount of Rs. 11879/-, or to show cause, if any, within 30 days from the service of the notice as to why the said amount be not recovered. In response to the notice, the defaulter submitted a petition in which he denied his liability for payment of the alleged outstanding dues. It was pleaded, inter-alia, that no written instrument or contract had been ex-cuted between the State and the petitioner and, therefore, the amount could not be recovered under the provisions of the Act. The Additional Collector, Udaipur, by his order dated February 3, 1972, (Ex. 3) rejected the objections filed by the petitioner and the certificate was sent to the Tehsildar for execution and realisation of the amount due. Aggrieved by the order of the Additional Collector, the defaulter filed an appeal before the Revenue Appellate Authority Udaipur, who, by his order dated December 23, 1972 (Ex. 4) upheld the order of the Additional Collector and dismissed the appeal. The petitioner then filed a revision-petition before the Board which too was dismissed by order dated December 31, 1977 (Ex. 5 ). The learned counsel for the petitioner has urged that the amount in question sought to be recovered from the petitioner does not fall within the defi-nition of the word "public-demand" contained in the Act. It is submitted that the bid given by the petitioner for the 'theka' of the liquor shop was accepted on September 30, 1949, when the Rajasthan Administration Ordinance, 1949 was in force and that according to secs. 8 and 9 of the Ordinance, which are analogous to Article 299 (1) of the Constitution of India, all contracts made for the purpose of the United State of Rajasthan should be expressed to be made by the Raj Pramukh and authenticated by a person authorised under sec. 8 to authenticate orders and instruments executed in the name of the Raj Pramukh. The contention of the learned counsel for the petitioner is that in absence of a written instrument or an agreement evidenced by writing any money payable to the State Government or to a Department cannot be -recovered as a public demand. In support of his contention the learned counsel has relied upon K. P. Chowdhary vs. State of M. P. (1) and Kirorilal vs. The State of Madhya Pradesh and Rajasthan (2 ). On the other hand, Mr. D. S. Shishodia, learned Government Advocate, has urged that the writ-petition is not maintainable inasmuch as the petitioner had an alternative remedy by way of a suit under sec. 20 of the Act. It has also been argued by him that since the amount is due from him and the petitioner has raised a technical ground to evade payment, no relief should be granted to him by this Court in exercise of its extraordinary jurisdiction. As regards the merits of the case, he has contended that the auction-list (Phard Nilami) contains the highest bid offered by the petitioner and acceptance of the same by the Deputy Commissioner, Excise and there is further the endorsement by the Surety on the auction-list itself. It is submitted by Mr. Shishodia that the auction-list containing the acceptance of the bid by a duly authorised person should be construed as an agreement evidenced by a writing and, consequently, the outstanding amount should be treated as a public-demand. S. 2 (5) of the Act defines 'public-demand' as under: - "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 PUBLIC DEMANDS (See Sec. 2 (5) ). (6) Any money payable to the State Government or to a department or an officer of Government - (i) Under or in pursuance of written instrument, or (ii) Under or in pursuance of an agreement evidenced by a writing, a correspondence or otherwise in repayment of any advances or in lieu of any services rendered or supplies made by the Government or such department or officer of Government. "
(3.) NOW, we have to see whether the demand in question falls within the definition of money payable to a Department in pursuance of an agreement evidenced by a writing. In Union of India vs. N. K. Private Ltd. (3) the Supreme Court observed as follows: - "it is now settled by this Court that though the words 'expressed' and 'executed' in Article 299 (1) might suggest that it should be by a deed or by a formal written contract, a binding contract by tender and acceptance can also come into existence if the acceptance is by a person duly authorised in this behalf by the President of India. . . . . . . " In Demodaran vs. State of Ktrala (4) it was observed that even if no contracts were entered into in pursuance of the auctions, as soon as the hammer fell, there were concluded contracts between the highest bidders and the State. And the highest bidders became liable too when they started running the trade, and the amounts which they are liable to pay can be collected as arrears of revenue, even in the absence of formal contracts. In Limba Reddy vs. The Special Tehsildar for Collection of Forest Revenue, Nizamabad (5), both the sale and the bid list for the lease of right of plucking and collecting Biri leaves in the auction held by the Divisional Forest Officer were signed by the highest bidder as well as by the Divisional Forest Officer. It was held that the sale notice and the bid list amounted to a contract expressed to be made by the Government and, therefore, by the Governor. In that case the Divisional Forest Officer while subscribing his signature to the two documents had not stated that he was doing so on behalf of the Governor, but having regard to the statutory rule prescribing that the sale of the right to collect abnus leaves must be by auction, there can be little doubt that he was acting on behalf of the Governor. In these circumstances, the requirements of Article 299 were held to have been satisfied. ;