1. The respondents are the legal representatives of one Narayana Pillai who was the successful bidder for privilege of vending 12 arrack shops in Kunnathur Range. The auction for the year, commencing 1-4-1981 to 31-3-1982, was conducted by the Assistant Excise Commissioner on 27th March, 1981 in accordance with Section 18A of the Abkari Act read with The Kerala Abkari Shops (Disposal in Auction) Rules, 1974. The predecessor-in-interest of the respondents on 27-3-1981 itself deposited 30% of the auction money, amounting to Rs. 8,70,300/-. He also furnished a Solvency Certificate to the extent of 20% amounting to Rs. 5,80,200/-. The temporary agreement, as envisaged by Rule 5(10) of the 1974 Rules, was executed between the parties. The successful bidder then waited for receiving confirmation of the sale from the Board of Revenue. He is reported to have sent a notice on 6-4-1981 informing the appellants that since the auction not been confirmed till then, he would not be, now interested in running the arrack shops for which he had bid on 27-3-1981. The auction sale appears to have been confirmed by the Board of Revenue on 7-5-1981 and an intimation of the same (not personally served on the bidder) is alleged to have been affixed at the place of his residence on 11-5-1981. Since, no agreement was executed by the highest bidder, whose offer had been confirmed on 7-5-1981, the shops in question were re-auctioned on 18-2-1982 by the appellants. A sale notice was issued on 12-10-1982 for sale of the immovable property of the predecessor-in-interest of the respondents, for recovery of the alleged loss suffered by the appellants on re-sale of the shops. The respondent at this stage filed a writ petition before the High Court challenging the sale notice. He also prayed for a declaration that the appellants were not entitled to enforce the penal provisions against him and had no right to appropriate the security deposit made by him. A specific prayer for refund of the security amount and return of the Solvency Certificate was made, though, challenge was also laid to the validity of certain Rules of The Kerala Abkari Shops (Disposal in Auction) Rules, 1974 in the petition. The writ petition was allowed by a Division Bench of the High Court of Kerala on 27-11-1992. By special leave the appellant-State of Kerala is before us.
2. Rule 5(13) of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974 provides that 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 for valid reason to be recorded in writing. Rule 5(14) provides that every confirmation or rejection with reasons therefore of the sale shall be communicated to the auction purchaser in writing as soon as possible.
3. Admittedly, in the present case the auction period commenced on 1st April, 1981. The auction sale had taken place on 27th March, 1981 but confirmation of sale, however, was not made by the Board of Revenue till 7-5-1981. It was not communicated to the successful bidder till 11-5-1981. The mandate of Rule 5(14) to the effect that the rejection or confirmation shall be conveyed "as soon as possible" was obviously respected in its breach. The respondent, pleaded justification, in the admitted facts of the case to withdraw because of the delay in confirmation of the sale. Before the High Court it was, however, pleaded on behalf of the appellants that confirmation of sale had been made 'without any delay'. The High Court wanted the file relating to confirmation of sale to be produced before it to satisfy itself about the cause of delay in confirming the sale. The High Court observes:
In fact, we wanted to know the proceedings of the Board in regard to this matter. The Government Pleader was given sufficient opportunity after the hearing was begun to enable the production of the file. He confessed that he is not in a position to place the file before us. We have to say that in writ proceedings, this Court has got the obligation to examine the file. Petitioner wants this Court to call for the file and when once the notice is issued, normally the files have to be placed before the Court. But as a practice the Court insists the file to be placed before it only at the time when the case is being heard. This Court is indulgent always to give time to the Government to enable the Government to place the files before this Court. In this case, we have given more than two opportunities to search for the file to enable the Government to place it before us, but it was not done. We wanted the Government Pleader to show us the order of confirmation. Government Pleader was not in a position to show that order. We wanted to see whether it was a considered order by the Board of Revenue. We wanted to know whether the Board of Revenue has given any reason for the delay in its order or proceedings. That was also not available. The order of confirmation, according to the petitioner has not been served on him. The Government Pleader submitted that the Assistant Excise Commissioner served a notice to the petitioner stating that the sale has been confirmed, and that the petitioner has refused to receive that notice. We thought that the Assistant Excise Commissioner will have the communication from the Revenue Board confirming the sale. The file of the Assistant Excise Commissioner in regard to this case also does not contain such a communication, the Government. Pleader submitted so. We have to observe that there is absolutely no justification for the Government not to produce the file of the Board of Revenue regarding this matter when the Court wanted to peruse the file.
4. The above observations are tell tale. Why was the file withheld, we are unable to understand? The High Court, in the facts and circumstances of the case, would have been justified to draw an adverse inference against the State Government for holding back the record, against which the writ petition had been sought. In view of the conduct of the appellant of withholding vital information from the Court, the Court was perfectly justified in allowing the writ petition and directing the refund of the security deposit of Rs. 8,70,300/- and the return of the Solvency Certificate for Rs. 5,80,200/- to the respondents. No fault can be found with these directions. The State cannot complain against the directions because of its own conduct.
5. When Leave was granted by this Court in the special leave petition on 13-12-1993 the operation of the impugned judgment of the High Court was stayed, with the result that the respondents-the legal representatives of the successful bidder, have been deprived of the use of the amount of Rs. 8,70,300/-, which has been lying in deposit with the State Government all this time. State had no justification to withhold that amount. That amount shall be refunded to the respondents within two months from today together with interest @ 12% per annum from the date of deposit of the security amount till the amount is paid to the respondents together with interest. The Solvency Certificate for Rs. 5,80,200/- shall also be returned to the respondents, within the aforesaid period.
6. This appeal, has no merits. It fails and is dismissed as such with costs which are assessed at Rs. 10,000/-.