S. Saghir Ahmad, J. - (1.) ON 24-3-1984 we dismissed this writ petition by a short order. We now proceed to give our reasons.
(2.) THE petitioners, who, in previous years, held, as they say, licence to carry on business as excise contractors, have filed this petition under Article 226 of the Constitution challenging the directions issued by the Excise Commissioner to all the District Magistrates that a person inspite of authorisation by a duly executed power of attorney, should not be permitted to offer any bid on behalf of another at the excise auctions proposed to be held for the ensuing year 1984-85. It may be stated that in Paragraph 373 (4) of the U. P. Excise Manual a provision was made for bids being offered by a person on behalf of another provided he held a power of attorney of that other person. Paragraph 373 (4) which has since been deleted, read as under :- " 373 (4)-No person will be allowed to bid at any auction on behalf of another person unless he holds a written authority properly stamped from such other person to do so, or such other person is present at the auction and ratifies the bid made on his behalf. The fact that a bid has been made on behalf of another person shall be noted in the sale list, and if it be finally accepted, the principal will be held responsible for the amount of bid." The Excise Commissioner in exercise of his power under section 41 of the U. P. Excise Act has now framed the U. P. Excise (Ist Amendment) Rules, 1984 in which it is provided as under : " The following conditions shall apply to all sales under the auction system and will be inserted at the foot of the sale proclamation to be issued by the Excise Commissioner :- (i) No person shall be allowed to bid at any auction sale unless- (a) he produces a solvency certificate in Form Q-39 granted by the Tahsildar of the Tehsil in which he resides. It should be duly countersigned by the Collector or the Additional Collector authorised by the Collector in this behalf; and (b) his name is included in the consolidated list of Solvency certificate holders circulated by the Excise Commissioner Uttar Pradesh."
(3.) LEARNED counsel for the petitioners has contended that under the old Excise Rules (Paragraph 373) there was a complete prohibition on a person offering bid on behalf of another but the prohibition was not to apply to a person who held valid power of attorney on behalf of that other person and, therefore, it was possible for one person to offer his bids at different excise auctions through his agents. This right to participate in the excise auctions has been seriously affected by the communication issued by the Excise Commissioner to the District Magistrates by which an agent has been completely prohibited from offering a bid on behalf of his principal inspite of the agent being duly authorised by a valid power of attorney. The right to participate in the auction, it is contended, cannot be destroyed by executive instructions issued by the Excise Commissioner. Learned counsel for the petitioners has also stated that the new rules, which were framed by the Excise Commissioner in exercise of his power under section 41 of the U. P. Excise Act were outside the scope of the rule making of the Excise Commissioner as they fall within the ambit of Section 40 under which only the State Government has the competence to make rules.;