S.K. Mookherjee, J.@mdashThis application has been moved upon notice and Mr. N. N. Guptoo with Mr. Indrajit Sen has appeared to oppose the application. The subject matter of dispute in the instant writ application is an order passed by the Excise Authorities against the petitioner dated 5th February, 1985, inter alia, canceling and forfeiting the petitioner''s licence on the ground of violation of Rules 2 and 207 of the Rules framed u/s 96 of the Bengal. Excise Act, 1909 and also violation of condition No. 6 of the General conditions applicable to such licence.
2. Dr. Pal, appearing in support of the application, has contended that there has been no transfer of the licence by the petitioner and the conveyance which is referred to in the order contains a specific exclusion as far as the rights and liabilities under the petitioner''s Excise licence are concerned and the same have been reserved to the petitioner himself. In respect of his aforesaid submission Dr. Pal has tried to draw analogy from the cases, where permits granted under the Motor Vehicles Act to any one partner are utilised by a partnership for the purpose of plying Motor Vehicles, and has invited my attention to the principle laid down in the case reported in
3. Mr. Guptoo, Learned Government Pleader, has submitted, on the other hand, that the petitioner is not entitled to any relief in writ jurisdiction on two fold grounds, namely, for not having availed of the remedy by way of appeal from the impugned order and secondly there being no error in the impugned order of the Excise Authorities calling for an interference in the writ jurisdiction. Mr. Guptoo has submitted that a reference to Rule 208 would immediately establish that the present case is a case of transfer of a licence and no distinction, as sought to be made by Dr. Pal on behalf of the petitioner, can be upheld by holding that admission of a partner to partnership as mentioned in Rule 208 refer only to an existing partnership, which holds the licence, and does not cover cases where the partnership is created for the first time.
4. I am unable to accept the submissions made on behalf of the petitioner, Rule 208 covers all cases of partnership including a newly created one and in the instant case, admittedly, the impugned conveyance which purports to admit partners without compliance with Rule 207 of the Bengal Excise Rules which amounts to transfer and as such the impugned order does not suffer from any error of law or any legal infirmity. The decision cited by Dr. Pal is distinguishable on the ground of absence of similar terms in the case of Motor Vehicle Rules. Reason in not invoking the appellate forum has also not been explained by the writ petitioner.
5. Accordingly I am not inclined to interfere in the writ jurisdiction and the application for writ is dismissed. It is recorded that the propriety and correctness of the statements and or allegations made in affidavit in opposition are denied by the Learned Advocate for the petitioner, on instructions. The prayer for stay of operation of my order made on behalf of the petitioner is refused as the impugned order has already become effective sometimes back.
