G. P. Singh C J.-
Mahua flowers belonging to the State were auctioned on 15 September 1972 by the Divisional Forest Officer, Raigarh, in accordance with the terms and conditions of sale contained in the sale notice Annexure-A. The petitioner was a bidder at that auction and his bids were accepted in respect of nine lots. The petitioners, however; did not deposit the amount of 10% of the bids as earnest and 25% as first instalment as required by the conditions of sale. The said nine lots were therefore re-auctioned. The State started proceedings for recovery of Rs. 29,063.32 as deficiency on re-auction from the petitioner as arrears of land revenue. By this petition under Article 226 of the Constitution, the petitioner challenges the said recovery.
2. It was pointed out by the learned counsel for the petitioner that mahua flowers ceased to be a specified forest produce under the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969, with effect from 12th June 1972 and the auction sale was, therefore, not in exercise of statutory powers under the Adhiniyam. The learned Government Advocate who appeared for the respondents did not dispute this position.
3. The learned counsel for the petitioner contended that in accordance with the terms and conditions of auction (Annexure-A) a person who wanted to bid at the auction was required to deposit 10% us earnest and he could not be permitted to bid unless he had complied with that condition, and as the petitioner did not deposit 10% as earnest, the bids made by him were not valid bids which could be accepted. The learned counsel for the petitioner in support of this contention relied upon the cases of State of Madhya Pradesh v. Firm Gobardhan Dass, A I R 1973 S C 1164 and Ramdhan Agarwal v. The State of M. P. and others, M.P. No. 499/74 decided on 17th January 1976, decided by a Division Bench of this Court. The submission of the learned Government Advocate on this point is that the condition of deposit of 10% before a bid could be validly made was a condition for the benefit of the Government and on the request of the petitioner the condition was waived by the Divisional Forest Officer who conducted the auction and who was fully authorised to waive the condition. In our opinion, the submission on this point of the learned Government Advocate is sound and must be accepted. In State of Madhya Pradesh v. Firm Gobardhan Dass (supra) it was no doubt held that according to the conditions of sale in that case the tenders could be validly made only by depositing 25% of the purchase price as offered in the tender and that if the tender made was invalid, its acceptance could not give rise to any binding contract. It was, however, observed that there was no proof that the Chief Conservator of Forests who had accepted the tender had the authority to waive the condition of deposit of 25% subject to which tenders could be validly accepted. These observations clearly imply that if the officer accepting the tender has authority to waive the condition of deposit, he can accept the tender although there is no initial deposit as required by the tender notice. In Ramdhan Agarwal v. The State of M P. and others (supra) a Division Bench of the High Court followed the Supreme Court case of Firm Gobardhan Das without adverting to the question whether in that case the condition of initial deposit at the time of making the bid or tender was waived or not. In the instant case it is specifically stated in the return that the Divisional Forest Officer at the request of the petitioner waived the condition of making the deposit of 10% before offer of the bid and that he had requisite administrative authority to do so on behalf of the State Government. The petitioner did not file any rejoinder in answer to the return. The statement made in the return on this point has, therefore, to be accepted. It is also noteworthy that the conditions of sale (Annexure-A) were issued by the Divisional Forest Officer and it looks reasonable to infer that if he was the author of these conditions, he could also modify or waive any of them at the request of a bidder or bidders. It has, therefore, to be held that on the petitioner's request the Divisional Forest Officer waived the condition of making the deposit of 10% of the purchase price offered by way of bid and that be had requisite authority to do so. The bids made by the petitioner, therefore, did not suffer any invalidity on the ground that they were not preceded by a deposit of 10%.
4. The learned counsel for the petitioner next contended that 25% of the price offered by the petitioner in his bids was also not deposited and therefore there was again a non-compliance with condition No. 11 of the sale conditions and for this reason also the bid was invalid. In our opinion, this contention is devoid of any substance. Condition No 11 requires that immediately after completion of the auction the successful bidder should deposit 25% of the price offered. The words "successful bidder" as they occur in condition No. 11 refer to the bidder whose bid has been accepted because unless a bid is accepted it cannot be said that a particular bidder is a successful bidder. The deposit of 25% of the price offered cannot therefore be taken to be a condition precedent for validity of a bid.
5. It was then contended by the learned counsel for the petitioner that there was no contract as required by Article 299 of the Constitution and therefore the recovery proceedings were invalid. In this context it was pointed out that the only document which was signed by the petitioner and the Divisional Forest Officer was the bid-sheet which did not constitute a contract within the meaning of Article 299. Article 299 (1) has been construed by the Supreme Court in a number of cases which establish that to comply with its requirements the contract (1) must be expressed to be made by the President or the Governor, as the case may be, (2) it must be executed, and (3) it must be executed by such person and in such manner as the President or the Governor, as the case may be, direct or authorise [K. P. Choudhary v. State of M. P., A I R 1967 S C 203 and State of M. P. v. Ratanlal, 1967 M P L J 104 (S C) p. 106]. It is true that it is not necessary that there should be a deed or a formal contract as held in Union of India v. Ralliaram, A I R 1963 S C 1685 and Union of India v. N. K. Private Ltd., A I R 1972 S C 915, but even when a contract comes into existence by correspondence or by acceptance of tender, the aforesaid three conditions have to be satisfied. Therefore a tender made in pursuance of an invitation issued by or on behalf of the Governor and acceptance in writing of the tender made in the name of the Governor and executed on his behalf by a person authorised may be sufficient to constitute a valid contract. But a contract by correspondence or by acceptance of tender which is not expressed to be made by the Governor and which is not executed by a person authorised by him cannot meet the requirements of Article 299 [see Bhikraj v. Union of India, A I R 1962 S C 113 and Ram Ratan v. State of M. P., 1974 M P L J 95 at p. 110]. In the instant case, we have only a bid which was signed by the petitioner and the Divisional Forest Officer. The bid list bears the heading "Forest Department, Madhya Pradesh." It is not possible to infer that this contract was expressed to be made in the name of the Governor. Moreover, it has not been shown that the Divisional Forest Officer though competent to accept a bid was also competent to execute a contract on behalf of the Governor. It is, therefore, not possible to hold that the bid list conforms to the requirements of Article 299 (1). In view of this finding, the respondents cannot rely upon section 155 (b) of the Madhya Pradesh Land Revenue Code, 1958, for supporting the recovery of the deficiency on re-auction as arrears of land revenue. Section 155 (b) provides that all moneys falling due to the State Government under any grant, lease or contract which provides that they shall be recoverable in the same manner as an arrear of land revenue, may be recovered as arrears of land revenue. The point to this extent is entirely covered by K. P. Choudhary's case (supra).
6. It was contended by the learned Government Advocate that although the deficiency cannot be recovered under section 155 (b) of the Land Revenue Code, it can be recovered under section 82 of the Forest Act, 1927 as substituted by Madhya Pradesh Act No. 9 of 1965. Section 2 (4) (a) of the Forest Act defines "forest produce" to include mahua flowers, whether found in or brought from a forest or not. In view of this definition, mahua flowers constitute forest produce. Section 82 as substituted by Act No. 9 of 1965, reads as follows :
"82. Recovery of money due to Government.-All money other than fines, payable to the State Government under this Act, or under any rules made thereunder or, on account of timber or other forest produce, or under any contract relating to timber and other forest produce including any sum recoverable thereunder for the breach thereof, or in consequence of its cancellation, or under the terms of a notice relating to the sale of timber or other forest produce by auction or by invitation of tenders issued by or under the authority of a Forest Officer and all compensation awarded to the State Government under this Act may, if not paid when due, be recovered, under the law for the time being in force, as if it were an arrear of land revenue."
A reading of section 82 goes to show that all moneys other than fines payable to the State Government under the terms of a notice relating to the sale of timber or other forest produce by auction or by invitation of tenders issued by or under the authority of a Forest Officer may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue. Before section 82 can be applied, it has to be seen whether the amount of deficiency which is being recovered from the petitioner is due under the terms of the notice relating to the sale of forest produce by auction issued by or under the authority of a Forest Officer. We have already stated that the auction of mahua flowers in which the petitioner was the highest bidder in respect of nine lots was conducted under the terms of notice (Annexure-A) which also contains the terms and conditions of auction. This notice was issued by the Divisional Forest Officer. Conditions Nos. 11, 12 and 13 of this notice are material. We have already noticed that condition No. 11 provides that a successful bidder will have to deposit 25% of the sale price offered immediately after the completion of the auction. Condition No. 12 provides, that the balance of the offered price should be deposited within seven days of the acceptance of the bid. Condition No. 13 provides that in case of breach of conditions Nos. 11 and 12 the lot would be re-auctioned and the former purchaser would be liable for payment of deficiency to the Government. We have already stated that after the petitioner's bid was accepted, he did not deposit 25% of the purchase price offered. The petitioner also did not deposit the remaining amount of the purchase price within seven days. The nine lots of which the petitioner was the highest bidder were then re-auctioned and the petitioner is being made liable by the State Government for the deficiency. This liability of the petitioner is clearly covered by condition No. 13 of the sale notice. The petitioner's case falls within the four corners of section 82 of the Forest Act and the recovery as arrears of land revenue of the deficiency is fully covered by that provision. It was argued by the learned counsel for the petitioner that section 82 does not create a new liability and that it only provides for a procedure for enforcing a liability and that in the absence of any contract in the manner provided in Article 299 (1) there could be no liability to pay the deficiency. In our opinion, this argument cannot be accepted. Section 82 properly construed creates a statutory liability for recovery of the amount payable to the Government under the terms of a notice relating to the sale of forest produce by auction. This statutory liability can be enforced even though there is no contract as envisaged under Article 299 of the Constitution. This construction of section 82 is strongly supported by the decision of the Supreme Court in A. Damodaran v. State of Kerala, A I R 1976 S C 1533. In that case revenue recovery proceedings were started for realisation of the remainder of the amounts due on account of bids at auction sales of toddy shops. The contention of the appellants in that case was that there was no contract as required by Article 299 of the Constitution and therefore there could be no recovery as arrears of land revenue under section 28 of the Kerala Abkari Act. The Kerala High Court rejected the contention of the appellants by holding that the liability to satisfy the dues arising out of a bid was enforceable under section 28 quite apart from any contractual liability. This view of the High Court was upheld by the Supreme Court. Section 28 of the Kerala Act provides that all duties, taxes, fines and fees payable to the Government direct under any of the foregoing provisions of this Act or of any licence or permit issued under it and all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person on account of any contract relating to the Abkari revenue may be recovered from the person primarily liable to pay the. same or from his surety as if they were arrears of land revenue In upholding the recovery under section 28, the Supreme Court held that statutory duties and liabilities may be enforced in accordance with statutory provisions and that it was not a condition precedent for recovery of an amount due under section 28 that the amount due and recoverable should be due under a formally drawn up and executed contract. These observations fully apply here. section 82 of the Forest Act as substituted in Madhya Pradesh by Act No. 9 of 1965 permits recovery as arrears of land revenue of all moneys payable to the State Government under the terms of a notice relating to the sale of timber or other forest produce by auction or by invitation of tenders issued by or under the authority of a Forest Officer. The section does not make it a condition precedent to the recovery of an amount due that there should be a formally drawn up and executed contract between the purchaser and the Government. In view of section 82 the State is fully justified in taking the recovery proceedings against the petitioner.
7. Before concluding, we would like to point out that in K. P. Chowdhary's case the Supreme Court expressly left open the question whether the amount that was being recovered in that case from the appellant could be recovered under section 82 or section 85 of the Indian Forest Act. Indeed, the case was remanded to the High Court for deciding that point. After remand, K. P. Chowdhry's petition (M. P. No. 153 of 1961) was decided by a Division Bench on 22nd July 1969. A perusal of that judgment will go to show that section 82 as substituted by the Madhya Pradesh Act No. 9 of 1965 was not brought to the notice of the learned Judges and reference was made to section 82 in the shape as it stood before the Amending Act, may be, because the recovery proceedings challenged in that case were started before the enactment of the Amending Act. The learned Judges of the Division Bench had, therefore, no occasion in that case to consider whether the recovery could be supported under the new section 82. Similarly, in Ramdhan Agarwal v. State of M. P. and others, M. P. No. 499/74, decided on 17th January 1976, the attention of the Division Bench deciding that case was not drawn to the new section 82.
8. The petition fails and is dismissed. There shall, however, be no order as to costs. Security amount be refunded to the petitioner.
Petition dismissed.