N.D. Ojha, J. - (1.) THESE three writ petitions raise art identical question and, as such, are being decided together. The Petitioners of these writ petitions have been engaged in the business of Tari and are either Harijansor Jaiswal by caste. The Excise Commissioner purporting to act under Section 41 of the U.P. Excise Act, 1910 (hereinafter referred to as the Act) framed Uttar Pradesh (Licensing under the Surcharge Fee System) Rules 1968 and also made amendments in those Rules from time to time with the previous sanction of the State Government. Those Rules inter alia regulate Tari business.
(2.) BY a notification dated October 27, 1984, the Excise Commissioner published the Uttar Pradesh (Licensing under the Surchurae Fee System)(Third Amendment) Rules 1984 hereinafter referred to as the Third Amendment Rules whereby certain amendments were made in the original rules mentioned above. One of the amendments made was by adding a proviso after Clause 3(f) to the following effect: Provided that for surcharge system ordinarily the members of pasi, Beldar and Tarnaii communities who actually tap tari producing these, shall be eligible whether or not they fulfil the aforesaid conditions failing whom others may be considered. The Petitioners have challenged the aforesaid Third Amendment Rules in these three writ petitions on the ground that in the exercise of power conferred on him by Section 41 of the Act the Excise Commissioner had no jurisdiction to add the aforesaid proviso in the Rule mentioned above. Since all the Respondents in the writ petition are represented we have considered it expedient to decide these writ petitions finally at this very stage as contemplated by the second proviso to Rule 2 of Chapter XXII of the Rules of Court. We have accordingly heard counsel for the parties on the merits of the writ petition. Having given our anxious consideration to the submissions made by counsel for the parties we are of opinion that there is substance in the submission made by counsel for the Petitioners that the Excise Commissioner did not have jurisdiction to add the impugned proviso to the Rule aforesaid. The power of the Excise Commissioner to frame rules is hemmed (?) in by Section 41 of the Act. Nothing has been brought to our notice by counsel for the Respondents in Section 41 of the Act whereby the Excise Commissioner may have the power to give preference by framing rules to the members of a particular community. The impugned proviso is accordingly liable to be quashed on this ground alone. In this connection a reference may also be made to the proviso to Section 40(1) of the Act which reads as follows; Provided that the Uttar Pradesh Licensing under the Surcharge Fee System Rules, 1968 made by the Excise Commissioner, Uttar Pradesh, with the previous sanction of the State Government, as amended by the Excise Commissioner, Uttar Pradesh, from time to time, before the commencement of this Act, shall, until altered or repealed by the State Government by rules made under this section, be deemed to be and always to have been as valid and effective as if the said rules were duly made by the State Government under this section. This proviso was inserted in the Act by Section 3(a) of U.P. Act No. 5 of 1976. Even a perusal of this proviso indicates that an alteration in the rules referred to therein is contemplated by the State Government and not by the Excise Commissioner. A perusal of the impugned notification, a copy whereof has been filed as Annexure -1 to this writ petition, indicates that in the Third Amendment Rules published by the said notification the existing Rule 3 has been stated In column one whereas the amendment thereto has been shown in column two thereof. Except the proviso quoted above Rule 3 as stated in column one is similar as stated in column two thereof. In other words the effect of the Third Amendment Rules is that even though the existing Rule 3 has been retained as it was prior to the issue of the aforesaid notification, the proviso quoted above has been added below Clause (f) in column two. Since the Excise Commissioner did not have jurisdiction to make an amendment in the aforesaid Rules the Third Amendment Rules 1984 published by the said notification as contained in column two thereof deserve to be quashed. The effect of this quashing, therefore, would be that the said Rule as it existed prior to the issue of the impugned notification alone shall be operative.
(3.) CERTAIN private parties have got themselves impleaded in the writ petition and the contention of their counsel is that the Petitioners are not entitled to get licence for carrying on Tari business. Since this is a question to be considered by the authority concerned, we do not consider it necessary to express any opinion on this point.;