A. N. Varma, J. - (1.) THE petitioner no. 1 was at the relevant time holder of a license in Form F. L. 17 for the retail vend of denatured spirit. By means of this petition, he has prayed for quashing of a communication dated 1-6-1977 which states that the Excise Commisioner has not approved the grant of a partnership said to have been entered into between the petitioner no. 1 and 2. THE Communication further states that the license now remains in the name of the petitioner no. 1 alone.
(2.) THE relevant facts are that the petitioner no. 1 made an application addressed to the Excise Collector, Meerut for the addition of the name of Bhupeadra Kumar petitioner no. 2 on the aforesaid license. THE application was made on the assertion that the petitioner no. 1 has taken petitioner no. 2 as a partner in the business of the retail vend of denatured spirit. It appears initially the Excise Collector had approved the addition of the name of the petitioner no. 2 in the license held by the petitioner no. 1 but subsequently, the Excise Commissioner to whom the matter was forwarded for approval declined to accord the same. The contention of the petitioner is that paragraph 337 (2) (c) of the Excise Manual under which the Excise Commissioner has purported to act in refusing to grant the prayer of the petitioner has been held to be ultra vires by a Full Bench decision of this court reported in 1973 Tax Law Reports page 493 which had occasion to consider the effect of paragraph 337 of the Excise Manual. Learned counsel lor the petitioner submitted that the Full Bench had struck down this paragraph as ultra vires. In the counter affidavit which had been filed on behalf of the respondent the stand taken is that firstly, legally approval of the Excise Commissioner was imperative as contemplated by paragraph 337. and, secondly, in any case on 20-8-75, a Government Order has been issued which prohibits altogether the grant of license in favour of partnerships. The Government Order further provides that even the existing licenses if standing in the name of two persons as partners should not be renewed in the names of those partners after the same expires and that the license should be granted in Javour of only one individual. Accordingly, when the petitioner's license expired on 31-3-74, the name of petitioner no. 2 was not added in the license held by the petitioner in respect of subsequent years. The name of petitioner no. 1 alone continued was retained thereafter. It is further asserted in the counter affidavit that the Excise Collector was not right in permitting the addition of petitioner no. 2 in the license held by petitioner no. 1.
(3.) HAVING heard the learned counsel for the petitioner aswell as learned Standing Counsel we find no merit in this petition. In the first place, it may be noted that the Full Bench referred to above had not struck down paragraph 337 which requires the approval of the Excise Commissioner for the transfer or sub-lease or partnership of Excise License. All that the Full Bench has held is that the said paragraph does not have the force of law and consequently the Income Tax Authorities could not refuse to register the partnership concern on the ground that the Excise Commissioner had not approved the same. It is at best an administrative instruction. We are clearly of the view that even as an administrative instruction it has a binding effect on the authorities. The Excise Collector was hence obliged to obtain the approval of the Excise commissioner as envisaged by paragraph 337 of the Excise Manual. Secondly, the position is that the name of petitioner no. 2 was not repeated on the license of the petitioner no. 1 after 31-3-74 for the obvious reason that in August 1975 a Government Order had been issued prohibiting altogether the grant of license in favour of partnerships. The said Government Order has the force of law and was binding on the Excise authorities. That being so, the impugned order passed by the Excise Commissioner refusing to accord approval to the grant of the petitioner's application for the addition of petitioner no. 2 as a partner in his license was perfectly valid and proper being in conformity with the policy of the Government as spelled out by the aforesaid Order dated 20-8-75. It is apparent that after the Government Order dated 20-8-75, the petitioner no. 1 cannot legally claim to have the name of petitioner no. 2 added in his license as a partner. That being so, we cannot grant any of the reliefs claimed by the petitioner.;