@JUDGMENTTAG-ORDER
Hon''ble R.M. Doshit, C.J.@mdashWith the consent of the learned Advocates, this petition is heard and decided today. This petition under Article
226 of the Constitution is filed by one Kameshwar Prasad Jaiswal, owner of the disputed property situated at Ward No. 62, Circle No. 161,
Holding No. 165 at Shikarpur Nalapar, Chowk, Patna City, District-Patna (hereinafter referred to as ''the said premises''). The Petitioner has
approached this Court against the Respondent authority for a direction to quash and set aside the licence for country liquor shop granted in favour
of the Respondent No. 5 for the year 2011-12 in respect of the said premises.
2. The Petitioner admits that the said premises was leased by him to the Respondent No. 5 for running a country liquor shop for the licensing year
2009-2010 (i.e. from 1st April, 2009 to 31st March, 2010). Since 1st April, 2010, he did not give the said premises to the Respondent No. 5 for
running a country liquor shop for the licensing year 2010-11.
3. Nevertheless, the Respondent No. 5 posing himself to be the owner of the said premises executed a lease deed in favour of one Satendra
Kumar for running a country liquor shop in the said premises. On the strength of the said lease deed made on 20th March, 2010 the said Satendra
Kumar was given licence for running a country liquor shop in the said premises for the licensing year 2010-11. The Petitioner objected to the
licence given to the said Satendra Kumar before the Respondent authorities, before this Court, before the Excise Commissioner and before the
Board of Revenue. By the time the matter was decided by the Board of Revenue on 5th April, 2011 the licence had expired. The Board of
Revenue held that the matter had become in fructuous. However, the Board of Revenue did not approve the order of Commissioner of Excise
dated 7th February, 2011. The Board of Revenue observed, ""in the case of disputed premises being offered as location of shop in 2011-12, the
authorities will make their enquiries regarding its suitability, and give approval, with an open mind without feeling constrained by the order dated 7th
February, 2011 of the learned Commissioner"".
4. Under apprehension that the Respondent No. 5 will use the said premises for running a country liquor shop for the year 2011-12, the Petitioner
lodged his objection with respect to the said premises before the Assistant Commissioner of Excise as early as on 12th March, 2011.
Nevertheless, on the strength of the lease deed produced by the Respondent No. 5 purportedly executed by the Petitioner in favour of the
Respondent No. 5 on 12th December, 2009 for the period from 19th August, 2009 to 1st July, 2012, the Respondent No. 5 has been granted
licence for running a country liquor shop in the said premises for the year 2011-12.
5. Feeling aggrieved, the Petitioner has filed the present petition.
6. Learned Advocate Mr. Jitendra Singh has appeared for the Petitioner. He has taken us through the aforesaid record and the previous history of
litigation. He has expressed the anguish felt by the Petitioner that in spite of being vigilant his efforts till date have gone in vain.
7. Learned Advocate Mr. Vikas Kumar has appeared for the Respondent authorities. He has submitted that the petition involves disputed
questions of fact. The dispute is of the civil nature. Therefore, this Court will not entertain the petition filed under Article 226 of the Constitution. He
has also relied upon the lease deed dated 12th December, 2009 on the strength of which the licence has been granted to the Respondent No. 5 for
the year 2011-2012.
8. Learned Advocate Mr. S.D. Yadav has appeared for the Respondent No. 5. He has submitted that on 30th March, 2009 the Petitioner had
executed a lease deed in respect of the said premises for the period from 1st April, 2009 to 31st March, 2010. Under the said lease deed the
Petitioner had agreed that the lease would be renewed after expiry of the lease period. He has submitted that during subsistence of the lease deed
dated 30th March, 2009 the Petitioner had executed another lease deed on 12th December, 2009 (Annexure-A-1 to the counter affidavit). Under
the said lease the Petitioner let out the said premises to the Respondent No. 5 for a monthly rent of Rs. 8,000/-, on a further condition that the
Respondent No. 5 would pay Rs. 1,00,000/- in advance. Under the said lease the Respondent No. 5 was also allowed to sublet the said
premises. Pursuant to the said agreement Respondent No. 5 made a sub-lease on 20th March, 2010 in favour of the aforementioned Satendra
Kumar for running a country liquor shop for the licensing year 2010-2011 [i.e. from 1st April, 2010 to 31st March, 2011]. He has submitted that
the Respondent authority has granted licence to the Respondent No. 5 for running a country liquor shop for the year 2011-2012 in the said
premises. He has next contended that the Petitioner has an alternative statutory remedy of appeal before the Commissioner of Excise. The petition
involves disputed questions of fact. Therefore also, the petition under Article 226 of the Constitution should not be entertained.
9. We are alive to the fact that the Petitioner has an alternative remedy of appeal before the Commissioner of Excise. However, on the facts of the
present case and in view of the previous litigation, we are not inclined to relegate the Petitioner to the alternative remedy.
10. We have three lease deeds before us in respect of the said premises. The first one was admittedly executed by the Petitioner on 30th March,
2009 for the licensing year 2009-2010. The second lease deed purportedly executed by the Petitioner on 12th December, 2009 for the period
19th August, 2009 to 1st July, 2010 is the disputed lease deed. Ex facie, the said lease deed is not reliable. The said lease deed has been
purportedly executed on 12th December, 2009 during subsistence of the first lease deed. The said lease deed was executed for the period from
19th August, 2009 to 1st July, 2012 i.e. part of the lease period was already covered by the admitted lease deed of. 30th March, 2009. Under the
said lease the Respondent No. 5 agreed to pay a monthly rent of Rs. 8,000/- although under the admitted lease deed he had agreed to pay
monthly rent of Rs. 5,000/-. Meaning thereby for the period from 19th August, 2009 till 31st March, 2010; though the Respondent No. 5 had
agreed to pay monthly rent of Rs. 5,000/-, under the disputed lease deed he agreed to pay the enhanced rent of Rs. 8,000/-. Moreover, a material
discrepancy in respect of the signature of the Petitioner is noticeable. We have before us two admitted signatures of the Petitioner; one on the writ
petition and the other on the admitted lease deed dated 30th March, 2009. Both the signatures are evidently in the same hand. The purported
signature of the Petitioner on the disputed lease deed of 12th December, 2009 is ex-facie not made by the person swearing the affidavit on this
petition and the person who signed admitted lease deed dated 30th March, 2009. Moreover, the Respondent No. 5 has not asserted nor
produced any material to establish that in compliance with the terms agreed under the said lease deed he had paid the advance or the monthly rent
of Rs. 8,000/- to the Petitioner. We are, therefore, constrained to hold that the lease deed dated 12th December, 2009 relied upon by the
Respondent No. 5 is a forged document. On the basis of the said lease deed, oblivious to the objection lodged by the Petitioner as early as on
20th March, 2011, oblivious to the observation made by the Board of Revenue, the Respondent authorities have illegally granted licence to the
Respondent No. 5 for running a country liquor shop in the said premises for the year 2011-2012. The third lease deed is of 20th March, 2010,
executed by the Respondent No. 5 posing himself as the owner of the said premises in favour of the aforesaid Satendra Kumar. The said lease has
no relevance for the purpose of the present petition except that the said lease was made by the Respondent No. 5 illegally on the strength of the
forged lease deed dated 12th December, 2009.
11. We are of the view, that the Respondent authorities have allowed the Respondent No. 5 to run a country liquor shop in the said premises on
extraneous consideration. The order made by the Respondent authorities in collusion with Respondent No. 5 cannot be sustained for a day, nor
the Petitioner can be relegated to the alternative remedy where a glaring wrong has been committed by the Respondent authorities in collusion with
the Respondent No. 5.
12. For the aforesaid reasons, we allow the writ petition. The licence dated 14th April, 2011 granted to the Respondent No. 5 Ashok Kumar Sah
for running a country liquor shop in the said premises is quashed and set aside. The Respondent No. 5 will close the said country liquor shop
forthwith. He will handover the vacant possession of the said premises to the Petitioner within one week from today. The Respondent No. 5 will
pay rent of Rs. 8,000/- per month to the Petitioner for the period from 1st April, 2010 till the date he hands over the vacant possession of the said
premises to the Petitioner.
13. The Respondent No. 5 will bear the cost of the Petitioner. The cost is quantified at Rs. 5,000/-. The Respondents will bear their own cost.
Registry will send the writ forthwith.