B.L. Yadav, J. - (1.) This Potion is directed against the order dated 16 -12 -1981 passed by the Excise Commissioner. Further the non -compliance of the order dated 05 -08 -198i of the District Magistrate, Varanasi by the District Excise Officer was also challenged.
(2.) The facts of the case are few and simple. The Petitioner along with his elder brother started whole -sale vend of the denatured spirit m partnership. A license for the said purpose was granted in Form F.L. 16 as provided under the U.P. Excise Manual Vol. L the license was granted in the names of Moriammad Khahl, the Petitioner and Mohammad Abdul Hamid jointly on 15 -04 -1961. The business was carried on at a shop situated at Kachchi Sarai, varanasi till 18 -03 -1979, when Abdul Hammed died. The Petitioner being the surviving partner applied to the licensing authority on 23 -03 -1979 to delete the Dame of Abdul Hammed from the license as the latter has died and the petitioner requested that he may be allowed to continue to run the license for the remaining period. The District Excise Officer struck the name of Abdul Hammed from the license by his Order dated 18 -04 -1979 and renewed the license in the name of the Petitioner alone for the year 1979 -80 by his order dated 21 -04 -1979. The Petitioner continued to carry on business of whole -sale vend of the denatured spirit under the licence F.L.16 after the deletion of the name or Abdul Hammed for the year 1979 -80. The Petitioner applied again for renewal of the license for 1980 -81 after complying all the legal formalities and the license was renewed on 14 -04 -80. But all of a sudden the District Excise Officer Respondent No. 3 informed the Petitioner that the District Magistrate by his Order dated 24 -05 -1980 cancelled the license of the Petitioner and temporarily granted the same in the name of R.S. Tewari, Respondent No. 4. It is pertinent to mention that Sri R.S Tewari was already holding a license in his name under F.L. From 17 at Mughal Sarai, which is not at all permissible under Rule 680 of the U.P. Excise Manual Vol.? I? The said order of cancellation of license of the Petitioner was communicated to him by the District Excise Officer on 20 -06 -80. The District Magistrate considered the representation of the Petitioner after referring the matter to the Excise Commissioner, U.P. for his opinion and ultimately the Petitioner's representation was allowed and temporary license granted to Sri R.S. Tewari, Respondent No. 4 was cancelled. The District Magistrate obtained relevant opinion from the Law Sec. of the office of the Excise Commissioner. The Petitioner had to file a writ petition (being Writ Petition No. 221 of 1981) before this Court and on 18 -05 -1981 a Division Bench of this Court admitted the writ petition and directed the Respondents to file counter affidavit. But no counter affidavit was filed and in the meanwhile the order canceling the license of the Petitioner was withdrawn and the petitioner was granted a provisional license till 31 -07 -81 by the order of the District Magistrate. Another application was moved by the Petitioner on 30 -07 -1981 praying that his license may be renewed for the year 1981 -82, but the license was renewed only up to 31 -10 -1981 and this was in pursuance of the order dated 05 -08 -1981 passed by the District Magistrate (Annexure 2). But the District Excise Officer did not renew the license of the Petitioner. The Petitioner had filed an appeal before Respondent No. 1, which was dismissed by the impugned order.
(3.) It was alleged by Respondent No. 4, Sri R.S. Tewari that after the death of other partner the license could not have been renewed in the name of the Petitioner and the license was correctly granted to him and the same has been illegally cancelled and that the impugned orders were correct.;