JUDGMENT Lakshmi Bihari, J.
1. Sri Mukesh Prasad, the learned counsel appearing for the petitioner and Sri H.R. Mishra, the learned counsel appearing for the respondents, have been heard and the record has been perused. With the consent of the learned counsel for the parties, the petition is being disposed of finally, at the admission stage itself.
2. By means of this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the citation dated 16.6.1992, a copy whereof is Annexure-1 to the writ petition, issued by the respondent No. 1 against the petitioner.
3. The foreign liquor shops of Robertsganj, and Duddhi, in the district of Sonebhadra, were put to annual auction for the year 1992-93. The auction was held on various dates, as the minimum target fixed by the State Government could not be achieved. In the auction held on 23.3.1992, the petitioner offered a bid of Rs. 1,26,00,000. (One crore twenty six lakhs) and in the auction held on 30.4.1992, one Shambhoo Nath offered a bid of Rs. 80,50,000. (Eighty lakhs fifty thousand) in respect of both the groups of shops.
4. By the impugned citation, a sum of Rs; 40,28,000, (Forty lakhs twenty eight thousand) was sought to be recovered from the petitioner as arrears of land revenue, being the difference of the highest bid offered by the petitioner and the subsequent bid of Rs. 80,50,000, (Eighty lakhs fifty thousand) which was accepted by the authorities concerned, after adjusting a sum of Rs. 5,22,000, (Five lakh twenty two thousand) fetched as daily licence fee up to 30.4.1992. The said citation is under challenge in the present writ petition.
5. The learned counsel appearing for the petitioner has submitted that the impugned citation is bad, illegal and liable to be set aside, as the petitioner did not commit any default within the meaning of Rule 22 of the U. P. Excise Licences (Tender-Cum-Auction) Rules. 1991 (for short the Rules). His argument is that the highest bid offered by the petitioner was never accepted by the authorities concerned and, therefore, the petitioner could not be said to be an auction purchaser. He, accordingly, submitted that there was no question of the petitioner being the defaulter within the meaning of the said Rules.
6. On the other hand, the contention of the learned counsel appearing for the respondents is that the petitioner committed default inasmuch as he failed to pay the security deposit. He, accordingly, submitted that the amount mentioned in the impugned citation was recoverable from the petitioner under Rule 22 of the said Rules.
7. Now the question to be determined is whether the petitioner was a defaulter within the meaning of Rule 22 of the Rules. The Rule 22 of the said Rules runs as under :
"22. Default in payment of advance security.--In case of default to pay the security deposit as mentioned in sub-rule (1) of Rule 20 within the time specified in the auction, and in case a licence has been issued, the licence, shall stand cancelled and the deposit, if any, shall stand forfeited to the Government. In such cases, re-auction or alternative arrangements shall be made by the Licensing authority at the risk of the original auction purchaser. All monetary losses resulting from re-auction or alternative, arrangement or from the licence remaining unsold for want of bidders shall be recoverable from the original auction purchaser ass arrears of land revenue."
Under this rule, recovery can be effected only when the auction purchaser commits a default. According to the definition of the term "auction purchaser" as given in Rule 3 (d) of Rules, a person becomes an auction purchaser when his bid is accepted by the Licensing Authority. Thus, it is clear that under Rule 22, the question of recovery would arise only when bid is accepted and the auction purchaser commits a default.
8. In the writ petition, it is alleged that on 23.3.1992 the petitioner offered a bid of Rs. 1,26,00,000. (One crore twenty six lakhs) which was the highest but it was not accepted by the licensing authority. This allegation is supported by Annexure-C. A.-l, which is a photostat copy of the bid sheet of 23.3.1992, filed along with the counter-affidavit of Chandra Bhal Singh who was the District Excise Officer at the relevant time. A perusal of this bid sheet shows that the bid of the petitioner was not accepted, as it was not sufficient. The stand taken by the respondents in the counter-affidavit as well as in Annexure-C. A.-3, which is a photostat copy of the notice dated 2.4.1992, is that in the auction held on 31.3.1992, the petitioner participated and his bid, which was the highest, was accepted, but after acceptance of his bid, the petitioner left the Pandal without depositing the advance security as required by the Rules. In this connection, it may be mentioned that the respondents have not produced any documentary evidence including the Hall ticket, bid sheet of 31.3.1992 and Form G-14-A relating to the auction, in support of their allegation regarding participation of the petitioner in the auction held on 31.3.1992, and inspite of repeated opportunities being given to the respondents for producing the records relating to the auction, they have failed to produce the same.
9. Here it is relevant to notice the provisions of Section 114(g) of the Indian Evidence Act. According to this section, the Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
10. In view of the aforesaid section, it must be held that the documents which the respondents have failed to produce were not favourable to them and if produced, would have gone against them. Thus, the respondents have failed to substantiate their allegation regarding participation of the petitioner in the auction held on 31.3.1992 and, therefore, the said allegation cannot be accepted.
11. Thus, it is manifest that the petitioner could not be said to be an auction purchaser and, consequently, there was no question of any default. Therefore, Rule 22 of the said Rules was not applicable. As such, the amount mentioned in the impugned citation could not be recovered from the petitioner.
12. In the last, the learned counsel appearing for the respondents submitted that the petitioner was bound by the highest bid offered by him on 23.3.1992, which was accepted subsequently and as such, he submitted that the petitioner was liable to pay the amount claimed in the impugned citation. In support of his submission, the learned counsel placed reliance on Rule 19 of the said Rules. According to Rule 19, every person bidding will be held to his bids whether it be highest or not and all such bids shall remain valid till the final decision of the Excise Commissioner or for a period of 60 days whichever is earlier. In the opinion of the Court, this Rule is not applicable in the present case, as the bid offered by the petitioner on 23.3.1992, was rejected by the authorities concerned on the ground of its being insufficient. Once the bid was rejected, it could not be treated to remain valid within the meaning of Rule 19 of the said Rules. Therefore, , there is no merit in this contention of the learned counsel for the respondents.
13. In view of the discussion made above, the writ petition succeeds and is allowed with costs. The impugned citation dated 16.6.1992 is quashed.