The plaintiff is the appellant in this second appeal. He was a bidder at a public auction of some of the arrack shops held by the Sub-Collector of Tindivanam. His was the highest bid in respect of two of the shops. But the bids were not accepted by the Sub-Collector and the sale was ordered to be continued with the plaintiff’s bids as the initial bids. No bidders came forward to bid even at the amounts offered by the plaintiff. The shops had ultimately to be sold for lower bids, with the result that there was a loss to the Government of Rs. 1,148. The plaintiff asked for the return of the amount he paid as advance and for an injunction restraining the Government from proceeding against him for the recovery of the loss. His suit was dismissed by the District Munsiff and this, dismissal was upheld by the District Judge of South Arcot. Hence this second appeal.

Three questions have been raised on his behalf. The first is that the notification under which the sales were held and the terms of which are fully set out in the judgment of the learned District Judge, has no application at all, because it was not a case falling under clause (b), rule 9, under which the Collector can postpone orders confirming or refusing to confirm the provisional acceptance of the bid, but a case where the appellant was definitely and finally told that the auction sale in respect of the shops for which he bid, was not confirmed.

Attention is drawn to the terms of the notice, Ex. D-5(a). There is not much substance in this contention, not only for the reason that it was not taken in the courts below, nor even in the grounds of appeal, but also because it is easy to see from the terms of the notice read with the Collector’s proceedings, Ex. D-4, that what was within the contemplation of the parties was not an absolute refusal to confirm but a non-confirmation for the time being. If an order is made postponing confirmation, it means that for the time being there is no confirmation and this is what was meant to be conveyed to the appellant. And this is obviously the reason why no such point was put forward until the ingenuity of Mr. M.S. Venkatarama Aiyar, advocate for the appellant, discovered it.

The other two points raised on behalf of the appellant deserve more consideration. The sale notification, Ex. D-3 under which the auctions were held, purports to be by the Board of Revenue. Whether this notification has, under the terms of section 69 of the Madras Abkari Act, the force of law an I has to be read as part of the Act,-which is the view taken by the learned District Judge-will depend upon the further question whether under section 5 of the Act the Provincial Government has framed and published any rules prescribing the powers and duties under this Act to be exercised and performed by “abkari officers,” which term includes the Board of Revenue under section 3, sub-clause (2), and conferring on the Board the power to frame rules and issue notifications under section 69. True, it may be presumed that all this was done; but, when challenged, the steps by which the notification has acquired the force of law, have to be proved. Otherwise the notification would amount to nothing more than conditions of sale prescribed by a person who is selling property by public auction.

The more serious question is whether, assuming in favour of the Government that the notification has the force of law by reason of section 69 of the Act, it is not a piece of legislation by a Provincial Legislature which is repugnant to the Indian Contract Act, in so far as it provides that the bid shall not be retracted by the offeror but is to be treated as continuing even after the second sale is commenced. Under section 5 of the Contract Act, an offer in the nature of a bid at a public auction can be revoked any time before acceptance; and it has been held in Champalal v. Ghanshamdas1 that any condition denying this right of revocation is illegal. A continuing offer does not mean an