Judgment :- 1. The question to be determined in this case is whether the Revenue Recovery Proceedings taken against the petitioner who was the highest bidder at an auction held for the purpose of the grant of the privilege to sell by retail toddy for the year 1968-69 and who did not comply with the conditions of the auction are invalid as not supportable by law. 2. By a notification published in the Kerala Gazette Extraordinary dated 8th February 1968, it was notified among other things that the privilege to vend toddy in Shop No. 30 of the Kuravilangad Range of Kottayam division will be auctioned on 19 21968. At the auction the petitioner's bid of Rs. 25,600/-was the highest and that bid was accepted. The petitioner did not however deposit 10 percent of the bid amount as required by condition No. 10 of the conditions published along with the notice in the gazette of 8th February, 1968 The right to vend toddy was therefore re-sold by auction on 10 41968 and the highest bid obtained was Rs. 18,300/ -the deficit being thus Rs. 7300/-. Under the conditions of sale the petitioner should pay this amount. So this amount with interest and the expenses totalling Rs. 8723.30 was demanded from the petitioner by Ext. P2 notice dated 6 81968. The petitioner not having complied with the demand, Revenue Recovery steps have been initiated against the petitioner and the prayer in this petition is to quash Ext. P2 demand notice as well as the Revenue Recovery steps that have been taken. 3. This petition has been filed on the ground that what is contained in the notification that we have referred to are merely administrative directions "embodying the terms under which the auction would beheld and therefore containing, in the language of contract law, invitations for offers. On these premises the pleadings proceeded to raise the contention that according to the terms so notified and according to the general principles of contract law there had been no concluded contract by the highest bid of the petitioner being accepted and even by the petitioner executing what is called a "temporary agreement" as stated in condition No. 10 of the conditions. Reliance has been placed for this proposition on the ruling of the Supreme Court reported in Union of India & Ors. Reliance has been placed for this proposition on the ruling of the Supreme Court reported in Union of India & Ors. v. Bhim Sen Walaiti Ram (1971 (1) S.C.W.R.111), as also on an early decision of the Madras High Court in Somasundaram Pillai v. Prov. Govt. (AIR. 1947 Mad 366) and a recent one of the same Court in Linga Gowder v. State (AIR. 1971 Mad. 28) These decisions lay down the well-known principle that an offer can always be withdrawn before it is finally accepted and that a conditional acceptance is not an acceptance in law as even after such conditional acceptance the offer remained unaccepted and therefore enabling the offerer to withdraw his offer before it was finally accepted. It is said that in view of the provision in condition No. 13 of the conditions there cannot be said to be any acceptance which concluded a contract enforceable in law. Condition No. 13 is in these terms; "13. No sale shall be deemed final as against the Government unless confirmed by the Board of Revenue who shall be at liberty to accept or reject any bid without assigning any reason. In any case in which the Board of Revenue has accepted a bid and such acceptance has been conveyed to the auction purchaser the Board of Revenue may without assigning any reason revoke the auction before the installation of the auction purchaser in the business of the shop." 4. We do not think that we are called upon in this case to deal with this aspect of the question, though, as we indicated earlier, the pleadings have very largely proceeded on this basis. The notification and the conditions of sale, we think, really amount to rules that have been framed under the Abkari Act I of 1077. Before we proceed to deal with the sections under which these rules are framed, it is necessary to refer to the relevant part of S.17 and S.18A of the Abkari Act. 5. The relevant part of S.17 is in these terms: "17. Duty on liquor or intoxicating drugs: A duty of excise or luxury tax or both shall, if the Government so direct, be levied on all liquor and intoxicating drugs. 5. The relevant part of S.17 is in these terms: "17. Duty on liquor or intoxicating drugs: A duty of excise or luxury tax or both shall, if the Government so direct, be levied on all liquor and intoxicating drugs. (a) ~~~ ~~~ ~~~ ~~~ (b) ~~~ ~~~ ~~~ ~~~ (c) ~~~ ~~~ ~~~ ~~~ (d) ~~~ ~~~ ~~~ ~~~ (e) ~~~ ~~~ ~~~ ~~~ (f) ~~~ ~~~ ~~~ ~~~ (g) sold in any part of the State." 6. S.18A runs as follows: "It shall be lawful for the Government to grant to any person or persons, on such conditions and for such period as they may deem fit, the exclusive or other privilege (i) of manufacturing or supplying by wholesale; or (ii) of selling by retail; or ' (iii) of manufacturing or supplying by wholesale and selling by retail, any liquor or intoxicating drugs within any local area on his or their payment to the Government of an amount as rental in consideration of the grant of such privilege. The amount of rental may be settled by auction, negotiation or by any other method as may be determined by the Government, from time to time, and may be collected to the exclusion of, in addition to, the duty or tax leviable under S.17 and 18. (2) No grantee of any privilege under sub-s. (1) shall exercise the same until he has received a licence in that behalf from the Commissioner. (3) In such cases, if the Government shall by notification so direct, the provisions of S.12 relating to toddy and toddy producing tree shall not apply. " It is therefore open to the Government to grant the privilege of selling toddy by retail by auction in any one of the methods specified in S.18A. That section uses the word "rental" as being settled by auction. But this rental is really the duty falling under S.17 (g) of the Abkari Act which we have read. 7. Now turning to S.29, which, as in the case of similar sections, has conferred general and wide powers under sub-s. (i) to frame rules to carry out the provisions of the Act. Thereafter sub-s. (2) clauses (a) to (q) detail without derogating from the generality of the provisions in sub-s. (1), specific powers. 7. Now turning to S.29, which, as in the case of similar sections, has conferred general and wide powers under sub-s. (i) to frame rules to carry out the provisions of the Act. Thereafter sub-s. (2) clauses (a) to (q) detail without derogating from the generality of the provisions in sub-s. (1), specific powers. We need notice for the purpose of this case only clause (r) of sub-s. (2) of S.29, which reads thus; "(2) In particular and without prejudice to the generality of the foregoing provision, the Government may make rule (r) for the forfeiture, notwithstanding provisions to the contrary contained in the Indian Contract Act, 1872. or in any other law, of the whole or any portion of the Kists deposited by persons who purchase the right to sell toddy, arrack, foreign liquors or ganga in addition to damages recoverable by Government on account of the breach of the conditions of sale laid down by the Government from time to time." 8. On the basis of the ruling of a Division Beach of this Court reported in Chandy Pillai v. State of Kerala (1959 KLT.1278) wherein a similar notification issued under the Abkari Act 4 of 1073 (Travancore) was construed to be rules framed under S.26 of that Act, counsel on behalf of the Government urged that the conditions of sale in the notification contained rules pertaining not only to the method, namely, by auction, but also contained rules as to the manner in which auction should be held and the consequence of the failure on the part of the highest bidder in not complying with the obligations cast on such an auction purchaser by the conditions of sale. He urged that by virtue of these rules, which have the force of law in view of S.69 of the Abkari Act 1 of 1077, there is a legal obligation cast on the petitioner to make good the difference in the two auctions; the one at which he was the highest bidder and the subsequent auction which was held because he did not comply with the terms of the conditions of sale. The decision relied on by the Government Pleader fully supports this position. The decision relied on by the Government Pleader fully supports this position. Before we proceed to deal with the arguments of the counsel for the petitioner in this regard, it is necessary to extract the conditions of sale contained in the notification as well as the preamble to the notification, to understand the rival contentions urged before us. 9. The notification in question starts with the preamble that it was issued by virtue of the powers conferred by S.18A and 29 of the Abkari Act 1 of 1077 and proceeds to state that the privilege of vending toddy among other liquor for the period from 1st April 1968 to 31st March 1969 in independent retail shops within the tracts shown in the subjoined statement will be put to public auction, by any Member of the Board of Revenue or by any officer authorised by the Government or by the Board of Revenue in that behalf at the places mentioned thereunder. After giving the details of the name of tract or Taluk, place of auction and date of auction which fell under the beading programme of auction sale of Abkari Shops for 1968-69, came the statement: "The auction sale will be held subject to the conditions hereinafter set forth. (1) General Conditions applicable to sale of Abkari Shops" 10. Rule (1) thereunder provided that each intending bidder shall deposit a sum of Rs. 200/- as earnest money. 11. The next rule which is relevant for the purpose of this case is R.10 reading as follows: "10. No person declared to be the auction purchaser by the officer conducting the sale shall withdraw from the offer and he shall at once execute a temporary agreement on such forms as may be prescribed by Government. He shall at once or in any case before the close of the day, make a deposit in cash equivalent to not less than 10 percent of the amount of his bid or higher amount as the officer conducting the sale prescribes and shall also if demanded furnish personal security. Should be fails to do so, the earnest money paid by him under condition (1) will be forfeited and the right of vend again put to auction by the officer conducting the sale either immediately or on a future date to be notified or otherwise disposed of at the discretion of the Board of Revenue. Should be fails to do so, the earnest money paid by him under condition (1) will be forfeited and the right of vend again put to auction by the officer conducting the sale either immediately or on a future date to be notified or otherwise disposed of at the discretion of the Board of Revenue. Disposal otherwise includes closure or departmental management. The defaulter will be debarred from bidding again for the same or any other Abkari privilege during the year and the shop shall be resold or otherwise disposed of at the defaulter's risk." 12. We have already extracted R.13. We may now refer to R.16: "16. A resale or other disposal of the shop effected under condition Nos. 10 and 15 will be at the risk of original auction purchaser, who cannot lay claim to any gain accruing from the resale, but in the event of loss he will be required to make good the deficiency between the total amount payable for the whole period under the terms of the original sale and the total amount payable by the resale purchaser. The liability against the original and the resale purchasers shall be calculated up to and from respectively of the date of confirmation of the resale. In the event of loss the forfeited deposit will be deducted from the loss arising from the resale and the remainder, if any, with interest thereon will be recoverable from the defaulter in the same manner as if it were an arrear of land revenue. Should, however, the forfeited deposit be greater than the loss by resale, the whole of such deposit will be credited to Government. When the rental fetched at a resale is higher than the original rental the amount of liability against the original purchaser will be calculated at the rate of the original rental upto the date of confirmation of the resale. A defaulting auction purchaser or resale purchaser will be similarly liable, if the privilege is disposed of subsequently and such disposal results in loss to the Government as compared with the original sale. Disposal otherwise than by resale includes closure or departmental management. The departmental Management fee collected from a shop while it was under-Departmental management due to default of payment of security kist etc. will be liable to forfeiture at the discretion of the Excise Commissioner." 13. Disposal otherwise than by resale includes closure or departmental management. The departmental Management fee collected from a shop while it was under-Departmental management due to default of payment of security kist etc. will be liable to forfeiture at the discretion of the Excise Commissioner." 13. The petitioner in this case, as we stated earlier, was admittedly the highest bidder. He was therefore declared to be the auction purchaser by the officer who conducted the sale on 19 21968. He did not, however, deposit 10 percent of the highest bid as required by R.10. So it was open to re-auction the shop as enjoined by R.10 and that re-auction would be at the risk of the highest bidder and it is clear from R.16 that be will be liable for the difference in the auction amounts and other expenses and interest and further that such amounts found due from the highest bidder can be recovered by resort to Revenue Recovery Proceedings. We need only further state that a temporary agreement was executed by the petitioner as required by R.10 on 19 21968 itself and for the sake of completeness, it is necessary to extract two paragraphs from that agreement also which read thus: 14. If these provisions are rules validly framed under S.29 of the Abkari Act 1 of 1077, there can be little doubt that they impose obligations and those are statutory obligations. The rules have become part of the Act and in the absence of any challenge about the validity of these provisions, this Original Petition will have to be dismissed. But counsel for the petitioner has strenuously urged that by no stretch of imagination this notification in the gazette said to be a notice of auction giving details of the place of auction and the persons who will conduct the auction and also containing the conditions of sale can be termed rules framed under S.29 of the Abkari Act and he further urged that it was patent that the Government had not even the remotest intention to frame any such rules. He referred to S.18A which we have read and further contended that there are two things possible that can be done under the Act, (1) laying down the conditions of sale as envisaged by S.18A and (2) the framing of rules under S.29 of the Act. He referred to S.18A which we have read and further contended that there are two things possible that can be done under the Act, (1) laying down the conditions of sale as envisaged by S.18A and (2) the framing of rules under S.29 of the Act. He pointed out that a number of rules have been framed as Rules under S.29 and that the notification does not purport to exercise any such power of framing rules, that none of these conditions appended under the heading "general conditions applicable to sale" have been termed as rules in the notification, that it will be too much to consider these conditions as rules. He said that the fact that S.29 has been referred to in the preamble to the notification does not alter the position. He further urged that rules are not framed for every year; auctions may have to be held every year. If rules such as those contained in R.10,13 and 16 ought to be of general application in relation to the auctions that have to be held, there is no need to repeat them year after year as conditions of sale. 15. There is no doubt that the rules could have been framed in a better manner. But the important point to be borne in mind is that a very similar, if not an identical notification, issued under the Cochin Act, was construed by this Court as early as in 1959 to be rules framed under that Act. We must take it that at the time of issuing the notification on 8th "February, 1968, the Government knew about this decision and knew the implications of that decision and therefore also knew that it was unnecessary to change the wording of the notification. This decision has not been questioned so far and we think it will be inappropriate to consider the question afresh as if it comes up for the first time. On the other band, we think, the proper procedure would be to accept the principle laid down in the decision and proceed as if that decision lays down the correct principle. This decision has not been questioned so far and we think it will be inappropriate to consider the question afresh as if it comes up for the first time. On the other band, we think, the proper procedure would be to accept the principle laid down in the decision and proceed as if that decision lays down the correct principle. In that view, we have to hold that the notification contains not merely a notice of an auction specifying the place, the Taluk, the shop and the dates of auction but contains rules of auction which provided for consequences of breach of conditions imposing statutory liability on those who infringe the conditions. There being no contention that these rules are invalid for any reason, we hold that the petitioner is bound by the statutory obligations cast by the rules and that therefore the demand contained in Ext. P2 is justified and that the petitioner is liable to be proceeded against under the Revenue Recovery Act by virtue of condition No. 16 of the Rules. 16. Reference had been made in the course of the argument to the decisions of this Court in Madhavan P. K. Kunnissery v Asst. Excise Commissioner (1969 KLJ. 289), (That decision was upheld in appeal: Damodaran v. State of Kerala (1969 KLT. 587), as also to the decision of Gopalan Nambiyar J. in O. P. No. 5700 of 1968 an appeal from which was dismissed (W. A. 126 of 1971) as well as the decision of the same judge in O. P. 108 of 1970, and it was urged by the Government Pleader that the petitioner before us is a "grantee of the privilege" and therefore Revenue Recovery Proceedings are justified in view of the provisions in S.28 of the Act. 17. S.28 of Act 1 of 1077 is in these terms: "28. 17. S.28 of Act 1 of 1077 is in these terms: "28. All duties, taxes, fines and fees payable to the Government direct under any of the foregoing provisions of this Act or of any license 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 (if any) as if they were arrears of Land Revenue, and, in case of default made by a grantee of a privilege or by a farmer, the Commissioner may take grant or farm under management risk of the defaulter or may declare the grant or farm forfeited, and re-sell it at the risk and loss of the defaulter. When a grant or farm is under management under this section the Commissioner may recover any moneys due to the defaulter by any lessee or assignee as if they were arrears of Land Revenue." 18. Counsel for the petitioner contended on the basis of the decision of the Supreme Court in Union of India & Ors. v. Bhim Sen Walaiti Ram (1971 (1) SCWR.111) that the petitioner cannot be held to be a grantee of a privilege because the auction had not been confirmed in his favour and that therefore these decisions require reconsideration. The decision of the Supreme Court has not dealt with the question whether there was any statutory obligation cast by rules framed under a statute. There was no such contention. It is not even seen that rules had been framed. This decision is therefore of no application. We do not think that we are called upon to consider whether the decisions referred to require reconsideration. 19. One more point was urged before us. It was contended that R.10 had not been complied with in this case and therefore there were no liability on the part of the petitioner. The contention was that the auction on 19 21968 was held by a member of the Board of Revenue and that the wording of R.10 clearly indicated that the same officer should conduct the re-auction. The re-auction on 10 41968 was not by a Member of the Board of Revenue but was by an Assistant Excise Commissioner. The contention was that the auction on 19 21968 was held by a member of the Board of Revenue and that the wording of R.10 clearly indicated that the same officer should conduct the re-auction. The re-auction on 10 41968 was not by a Member of the Board of Revenue but was by an Assistant Excise Commissioner. Since the same officer did not conduct the auction the procedure can be justified, if at all, only on the basis that the Board of Revenue could adopt "any other method" as indicated in the Rule. With reference to the counter-affidavit filed on behalf of the State it was further submitted that the position taken up by the State also is that it was "any other method" that was adopted. But this provision in the rule, that any other method may be adopted, it was contended is had because it amounts to delegation by a delegate. The argument was that the power under S.18A granted to the Government to determine the method of auction, negotiation, or by any other means, is a power already delegated to the Government by the Legislature and the Government cannot delegate the power to another to determine the method. This question also, we think, we are not called upon to decide, because notwithstanding the specific contention raised by the State, we feel that the method adopted in this case is not "other method" but the same method, namely, auction. The fact that the auction was not held by the same individual or the same officer who conducted the first auction does not matter because the auction, as is clear from the preamble to the notification, can be conducted either by the Board of Revenue or by any officer authorised by the Government or by the Board of Revenue. There is no case that the second auction was conducted by an officer who had not been authorised by the Board of Revenue. The contention that R.10 has not been complied with cannot therefore stand. In the light of the above, we dismiss the Original Petition. We direct the parties to bear their respective costs.