BISHAMBHAR DAYAL, C. J.

( 1 ) THIS is a writ petition under Article 226 of the Constitution of India challenging the recovery being made against the petitioner in the following circumstances:-The respondents advertised for receiving tenders for the sale of Tendu-Patta. (leaves) from unit No. 7, Budni. The petitioner gave a tender in pursuance of the tender notice No. 1972-X. 69 dated 25-3-1969 at the rate of Rs. 38. 25 p per standard bag. He also deposited some amount as security. The tenders were to be opened on 9th April 1969 but before they were actually opened, the petitioner made an application (Annexure 'a') resiling from his tender and requested that since he has withdrawn his tender it may not be opened at all. The tender was, however, opened as this was the only tender submitted for that unit. It is contended that subsequently the unit was also auctioned but since no offers were received, the tender of the petitioner was sent to the Government for acceptance. The Government accepted the tender and since the petitioner did not execute the purchaser's agreement, proceedings were now being taken for recovery of Rs. 24,846. 12 p. on the allegation that the Tendu leaves of the unit were sold to somebody else later and the balance was recoverable from the petitioner.

( 2 ) THE contention of the petitioner is two-fold. In the first place, as he had withdrawn his tender before it was opened and accepted, there was no tender on behalf of the petitioner. The other contention is that there being no valid contract executed by the petitioner under Article 299 of the Constitution, there was no enforceable contract between the petitioner and the State Government and, therefore, no recovery on the ground of the existence of a contract could be made from the petitioner.

( 3 ) THE reply on behalf of the respondents is that under the tender condition No. 10 (b) (i) a tenderer may be allowed to withdraw his tender of anv unit of a division before the commencement of the opening of tenders of that division on the condition that on opening the remaining tenders, there should be at least one valid tender complete in all respects available for consideration for that particular unit. In this case, since there was no other tender, the tender given by the petitioner could not be withdrawn. We are unable to accept this contention. A person who makes an offer is entitled to withdraw his offer or tender before its acceptance is intimated to him. The Government, by merely providing such a clause in tender notice could not take away that legal right of the petitioner. The fact that the petitioner had applied for withdrawal of the tender is not denied. It is, therefore, quite clear that when the tenders were opened, there was really no offer by the petitioner and, therefore, there could be no contract either impliedly or explicitly between the parties.

( 4 ) IT has been repeatedly held by this Court and by the Supreme Court that unless there is a valid contract executed as envisaged by Article 299 (1) where the government is a party, there could be no enforceable contract at all. In K. P. Chowdhry v. State of M. P. , 1966 MPLJ 1057 = (AIR 1967 SC 203), their Lordships of the Supreme Court specifically laid down as follows:-" the provisions of Article 299 (1) of the Constitution are mandatory. There can be no implied contract between the Government and another person. If such implied contracts are allowed, they would in effect make that article useless, for then a person having a contract with government which was not executed at all in the manner provided in article 299 (1) could get away by saying that an implied contract may be inferred on the facts and circumstances of a particular case. . . . . . . . . . . . . . . "

( 5 ) LEARNED counsel for the respondents further contended that these tender notices were issued under Section 12 of the M. P. Tendu Patta (Vyapar Viniyaman)Adhiniyam of 1964 and consequently, the terms thereof should be treated as la

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