JUDGMENT P.K. Kaul, J. - This is a Defendant's appeal in a suit for recovery of Rs. 2,900. It arose on the following facts: A market known as Bazar Kolotganj in Aligarh is vested in Aligarh Municipal Board. The right to collect dues for the year 1945-46 from persons who carried on business in this market was put to auction by the Board. The Appellant Sheikh Kalian was among the bidders at this auction. His bid of Rs. 1,900 was the highest offered and it was accepted by the Board. The transaction was later on confirmed by a resolution of the Board and the confirmation was communicated to the Appellant. Subsequently he applied to the Board to cancel the theka as he complained that on account of introduction of rationing he was not able to collect the dues. The Board did not cancel the theka. 2. It was averred on behalf of the Board that Sheikh Kalian collected the dues in the market but paid only Rs. 100 out of the amount due from him. Thus a sum of Rs. 1,800 was payable by him in respect of the theka for the year 1945-46. Owing to communal riots there was no fresh auction and Sheikh Kalian continued to collect the dues even in the following year, and that he had paid nothing on that account. The Board claimed Rs. 1,100 in respect of the dues collected for the year 1946-47. The suit which gave rise to this appeal was brought by the Board for recovery of Rs. 2,900 (Rs. 1,800 for 1945-46 and Rs. 1,100 for 1946-47). 3. The Defendant denied the claim and pleaded that the nilam was not completed as two of the conditions subject to which the auction was held were not fulfilled, (i) The highest bidder was to deposit one-fourth of the auction money within a certain period and (ii) he was to execute an agreement in writing within a week of the acceptance of his bid. That he neither deposited one-fourth of the auction money nor did he execute any agreement. He further pleaded that the auction sale was not confirmed by the Board and this being a contract involving a sum of more than Rs. 250 had u/s 97 of U.P. Municipalities Act, to be in writing and to be executed in the manner provided by that section. He further pleaded that the auction sale was not confirmed by the Board and this being a contract involving a sum of more than Rs. 250 had u/s 97 of U.P. Municipalities Act, to be in writing and to be executed in the manner provided by that section. This was not done and accordingly, it was argued, there was no contract enforceable at law. The Defendant further averred that he did not collect any dues. Limitation was also pleaded as a bar to the Board's claim. 4. The trial court held that the auction sale was confirmed by the Board and the confirmation was communicated to the Defendant. It was of opinion that the grant of a license to collect tehbazari dues could be made orally without being reduced to writing and that the conditions, subject to which the sale was held, were for the benefit of the Board and failure to deposit one-fourth of the auction money or, to execute an agreement within a week of the acceptance of the bid did not vitiate the transaction. It further found on the evidence before it, that the Defendant actually collected the dues for the year 1945-46. In view of its finding that there was a duly made contract which was not vitiated for the reasons urged by the Defendant, it held him liable to pay the balance of theka money, Rs. 1,800. As regards the claim for Rs. 1,100 for the year 1946-47 it held that there was no complete auction sale and it was not proved that the Defendant had realized tehbazari dues for that year. The plea of limitation was found against the Defendant. The Board's claim was decreed for Rs. 1,800 and proportionate costs. 5. Sheikh Kalian preferred an appeal. The lower appellate court confirmed the findings of the trial court that the Board by a resolution dated 29-3-45, had accepted the Appellant's bid at the auction sale. It took the view that the transaction between the Board and the Appellant was not vitiated in law on account of the failure of the Appellant to deposit one fourth of the auction money or to execute an agreement within a week of the acceptance of his bid. The learned judge was of opinion that these conditions were for the benefit of the Board and it could waive them. The learned judge was of opinion that these conditions were for the benefit of the Board and it could waive them. He was further of opinion that a transaction like this, where a Municipal Board grants a license on charge of certain fees, is not one which should be governed by the provisions of Indian Contract Act, but falls under the provisions of Section 293 of the U.P. Municipalities Act and should be governed by that section. With regard to the argument based on Section 97 of the U.P. Municipalities Act he appears to have taken the view that it did not apply. The finding that the Appellant had not collected any dues for the year 1916-47 was confirmed. Sheikh Kalian's appeal was accordingly dismissed. The present appeal was preferred against this decision. 6. It was contended on behalf of the Appellant that the lower appellate court was in error in taking the view that the transaction between the Appellant and the Board was not a contract governed by the provisions of the Indian Contract Act. It was argued further that the provisions of Section 97 of the U.P. Municipalities Act were mandatory and could not be disregarded. There being no contract enforceable under the law the Respondent Board, was not entitled to any relief. 7. When the Board invited bids at an auction sale it was an invitation to the people to make offers or ''proposals" to use the language of the Indian Contract Act. The Appellants bid of Rs. 1,900 for the grant of a right to collect tehbazari dues for the year 1945-46 was a proposal within the meaning of that expression as defined in Section 2(a) of that Act. Under that section when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. Sheikh Kalian signified his willingness to pay the Board Rs. 1,900 if it allowed him to collect tehbazari dues in Kilotganj market for the year 1945-46. The Board signified its assent to the proposal made by Sheikh Kalian by passing the resolution of 29-3-1946 and communicating it to him. The proposal made by Sheikh Kalian was thus accepted by the Board. Thus there came into existence an agreement. 1,900 if it allowed him to collect tehbazari dues in Kilotganj market for the year 1945-46. The Board signified its assent to the proposal made by Sheikh Kalian by passing the resolution of 29-3-1946 and communicating it to him. The proposal made by Sheikh Kalian was thus accepted by the Board. Thus there came into existence an agreement. u/s 10 of the Indian Contract Act all agreement are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and not extremely declared to be void by that Act. The Act further provides: Nothing herein contained shall affect any law in force in British India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents. In the present case there is no question that there was want of free consent of parties to the agreement. The consideration moving from either side was lawful and so was the object of the agreement. Thus ordinarily it would be a contract, and except for what is going to be said presently, it would be enforceable at the instance of either party. Section 97 of the U.P. Municipalities Acts reads as follows: Execution of contracts--(1) Every contract made by or on behalf of a board whereof the value of the amount exceeds Rs. 250 shall be in writing. Provided that unless the contract has been duly executed in writing, no work including collection of materials in connexion with the said contract shall be commenced or undertaken. (2) Every such contract shall be signed (a) by the (President) or a (Vice-President) and by the executive officer or a secretary or (b) by any person or persons empowered under Sub-section (2) or (3) of the previous section to sanction the contract if further and in like manner empowered in this behalf by the board. (3) If a contract to which the foregoing provisions of this section apply is executed otherwise than in conformity therewith it shall not be binding on the board. 8. It will thus be seen that under the law this contract must be in writing. Admittedly no agreement was executed. To enter into a contract when of the amount exceeds Rs. 250 verbally by Municipal Board would be a breach of Section 97. 8. It will thus be seen that under the law this contract must be in writing. Admittedly no agreement was executed. To enter into a contract when of the amount exceeds Rs. 250 verbally by Municipal Board would be a breach of Section 97. An attempt was made, to explain away the absence of a written contract in this instance. It was said that as Sheikh Kallan was an old theka-dar so the usual formalities which would be adopted with a new thekadar were dispensed with in his case. This is no reply to the objection raised on behalf of the Appellant. The provisions of Section 97 are mandatory and cannot be ignored. There being no contract in writing it must be held in view of the mandatory character of the provisions of Section 97 of the U.P. Municipalities Act, that there was no valid contract. 9. Reference was made by the learned Counsel for the Appellant to the provisions of Section 293 of U.P. Municipalities Act. That section reads as follows: Fees for use otherwise than under a lease of municipal property: (1) The board may charge fees to be fixed by bye-law or by public auction or by agreement, for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the board, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. (2) Such fees may either be levied along with the fee charged u/s 294 for the sanction, licence or permission or may be recovered in the member provided by Chapter VI. 10. It was contended that the Board in this case charged a fee of Rs. 1,900 from Sheikh Kalian for the grant of a license and it could do so under that section either by framing a bye-law or by holding an auction or by an agreement. It will be noted that Section 293 applies to fee chargeable for the use or occupation (other than under a lease) of any immovable property vested in, or entrusted to the management of the Board. The right to collect Tehbazari dues from persons carrying on business in a market is not "use, or occupation of immovable property" within the meaning of the words of that section. The right to collect Tehbazari dues from persons carrying on business in a market is not "use, or occupation of immovable property" within the meaning of the words of that section. Assuming, however, for the sake of argument, that the case is covered by that section I am of opinion that if a fee was charged by the Board by an agreement or by public auction and the sum involved exceeds Rs. 250, even such a case would be governed by the provisions of Section 97 of the Act. We have seen that every agreement enforceable at law is a contract (Section 2(h), Indian Contract Act). The auction as already stated, is an invitation to people to make offers, but whenever abide made at an auction is accepted there comes into existence an agreement and if such an agreement is enforceable at law it is a Contract. If a Board is a party to such a transaction, the mere fact that it holds an auction would not put the transaction outside the purview of Section 97 of UP Municipalities Act. 11. The Appellant's contention that the Board could not successfully sue him on the basis of a contract must, therefore prevail. This does not, however, mean that the Appellant can escape liability. I have held that there was an agreement between the Board and Sheikh Kalian. This agreement could not, in view of Section 97 of the UP Municipalities Act, be enforced at law. Accordingly it was void (Section 2(g), Indian Contract Act). u/s 65 of the Indian Contract Act when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. This section would, according to the decision of the Judicial Committee in the case of Harnath Kuar v. Inder Bahadur 50 I.A. 69, apply even to agreements which are void ab initio. Sheikh Kalian got under an agreement with the Board the right to collect Tehbazari dues in Kilotganj market for the year 1945-46. It has been found as a fact that he actually made collections in the market. Clearly, therefore, he is found to compensate the Board for the benefit received by him when the contract is discovered to be void. Sheikh Kalian got under an agreement with the Board the right to collect Tehbazari dues in Kilotganj market for the year 1945-46. It has been found as a fact that he actually made collections in the market. Clearly, therefore, he is found to compensate the Board for the benefit received by him when the contract is discovered to be void. What he actually collected was a fact especially within his knowledge and it was for him to prove what his collections were. He did not do so. It is therefore legitimate to hold that the proper compensation which the Board should get in this case is Rs. 1800/- the unpaid balance of what, was payable to the Board if the contract were good and enforceable. This case is covered by the principle laid down by a full Bench of this Court in the case of Municipal Board Gonda through its Chairman v. Bachchu 1950 A.W.R. (H.C.) 560. 12. The result is that the decision of the court below is upheld and the appeal is dismissed with costs.