IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 573 of 2002 (M/S) Govind Singh Pangtey … Petitioner. Vs State of Uttaranchal & others … Respondents. Sri J.C. Belwal and Sri U.S. Pangtey, learned counsel for the petitioner Sri C.D. Bahugunal, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This petition under Section 227 of the Constitution of India has been filed by the petitioner for the following relief:- 1. To issue direction, to the respondent No. 2, i.e. S.D.M., Didihat, District Pithoragarh to comply with the order passed by his predecessor dated 09.07.1984, in the letter and sprit, as per the definition of land given under Section 145(2) Cr.P.C. 2. To direct the respondent and his subordinate staff whosoever to attach whole the land in dispute as per the boundaries given by respondent No. 3, himself which has been very clearly mentioned in the judgment and order dated 09.07.1984 and further be directed to deposit whole the amount recovered by respondent No. 3 as the rent of the house on the land in dispute in this court or in alternative in the court of C.J.M., Pithoragarh with interest for which with respondents No. 3, 2 is liable to be recovered the amount whatsoever as due to the order in not being implemented and being complied with as per the definition given under Section 145 of Cr.P.C. itself. 2 Brief facts of the case are that an application under Section 145 Cr.P.C. was filed by respondent No. 3 i.e. Uttam Singh before the court of S.D.M., Didihat, District, Pithoragarh stating therein that he had purchased some land in Thal Paraw through some agreement from Kuwar Mahiraj Singh Bisht, in the year 1975 and till date he was in possession peacefully but on 01.05.1983, the petitioner entered into the land unlawfully and destroyed the vegetables, and is preparing the plan for constructing the house on this land. On the said application, the S.D.M. passed an order to Kanungo on 04.05.1983 for submitting his report on 17.05.1983 and S.D.M. issued notices to the parties and passed an interim order on 19.05.1983 to maintain status quo. Against the aforesaid order, the petitioner preferred a revision No. 11 of 1983 before the learned Sessions Judge, which was rejected on 01.08.1983 with costs and confirmed the order passed by learned S.D.M. After hearing learned counsel for the parties and perusing the entire material available on record, learned S.D.M. passed on order on 09.07.1984 for attachment of the land at Thal Paraw under Section 146 Cr.P.C. of which the boundaries are given below:- a) On North-Fencing of the Nursery b) On South-Market road and shop of Sri Dan Singh c) On East-House of Sri Pran Dutt Joshi d) On West-Shop of Sri Badri Dutt, and this land will remain attached till the rights and title of possession of the land was not decided by the competent court. 3 Feeling aggrieved by the aforesaid judgment and order, both the parties preferred revisions before the learned Sessions Judge, Pithoragarh which were dismissed vide order dated 27.08.1984. Govind Singh, petitioner, filed application dated 22-10-2001 before the S.D.M. that the respondent No.3, has let out the house attached in proceedings U/145 Cr.P.C. and has received rent, therefore he be directed to deposit the rent receipt by him in the court and the functioning of the bank be stopped on the said property. The said application was rejected vide order dated 22-6-2002. Feeling aggrieved by the aforesaid orders of the courts below, the petitioner preferred this petition before this Court. The averments made in the petition are that the learned S.D.M. vide order dated 9-7-84 attached the property in dispute U/S 146 Cr.P.C. and it was directed that the property will remain attached till either party get the judgment of competent court pertaining to the right and title over the said property. The Supervisor Qanoongo Muwani was directed to hand over the property to some independent person. The petitioner’s allegation is that the said order dated 9-7-84 is specific and unambiguous, in which boundaries of the land in dispute have been given, but the order has not been complied with as per its letter and spirit and as per the definition of land given U/S 145(2) Cr.P.C. and the S.D.M. and his staff has facilitated respondent No.3 to take advantage of the misinterpretation of the order. The petitioner approached the High Court through Criminal Misc. Application U/S 482 Cr.P.C. in which the High 4 Court vide order dated 7-3-88 directed the S.D.M. Didihat, to see that the whole of the property in dispute as shown in the order dated 9-7-1984 is attached and thereafter to proceed in accordance with the law. Thereafter the S.D.M. passed the order dated 15.3.88 directing the S.O. Thal that after attachment of the property to submit report. Against the above order dated 15.3.88 the respondent No.3 again approached the High Court through a petition No. 3536/88 U/S 482 Cr.P.C. in which the High Court quashed the order dated 15-3-88 vide order dated 25-3-96 with the direction that the order dated 9-7-84 of the S.D.M. Didihat be put into execution according to law. Thereafter the S.D.M. Didihat again considered the original criminal case No. 47/83. As the record was destroyed, therefore, the Tehsildar Didihat was directed to identify the said property by spot inspection and produce his report with map regarding the original judgment and order dated 9-7-84. The Tehsildar submitted his report on 11-4-97 and report of Naib Tehsildar Berinag dated 10-4-97. On 29-5-97, S.D.M. Didihat passed the order directing the Incharge, Sub Tehsil Berinag through Tehsildar Didihat, to attach the property mentioned in the inspection report of Naib Tehsildar Berinag dated 10-4-97 and hand over the same to some independent person. According to the petitioner in the month of September 1999, the respondent No.3 has let out the house illegally to Pithoragarh Khsetriya Gramin Bank @ Rs. 1,700/- per month, which is part of disputed land. It has also been alleged in the petition that the petitioner has no right to collect the rent from the house which is already attached and the rent collected must be deposited with the court concerned or in Govt. Treasury. Petitioner submitted application dated 22.10.2001 to the S.D.M. Didihat to direct the Manager of the Bank to deposit rent in the Court and the 5 respondent No.3 may be directed to deposit Rs. 42,500/- in total collected by him from bank as rent till date, in the court and the Manager be directed to stop function of the Bank on disputed land. The Tehsildar was directed by the S.D.M. Didihat to submit his report. According to him the Tehsildar has submitted false report on 3.6.2002 that the house which is let out to Bank is situated on Plot Nos. 423 and 425 which were not attached, and the attached plot No. 418 is still untouched by respondent No.3. The further allegation of the petitioner is that only a part of property in dispute was handed over to Sri Prem Chand by Naib Tehsildar Berinag on 1.7.97 after attachment. The respondent Nos. 1 and 2 filed counter affidavit denying the allegations made in the petition and alleged that actual dispute relates to plot No.418 only and the said dispute regarding plot No. 418 has been decided on merits in suit No. 47/83 on 9-7-84 and the order has been duly complied with. Respondent No.3 also filed counter affidavit denying the averments made in the petition and alleged that the land in dispute was directed to be attached and not the building, therefore, the building was not attached and the respondent No.3 has every right to collect the rent from house. He further alleged that the disputed land is plot No. 418, which is already attached and the house of the respondent No.3 is existing over plot No. 423. Heard Sri J.C. Belwal and Sri U.S. Pangtey, learned counsel for the petitioner, Sri C.D. Bahugunal, learned counsel for the respondents and perused the record. 6 The sole question in dispute in the present petition is as to whether the land in dispute, which was attached by the S.D.M. vide judgment and order dated 9- 7-1984, consists of the house let out on rent to the Gramin Bank by the respondent No.3, or not, as alleged by the petitioner. There is report of Tehsildar Didihat (Annexure –9 to the petition). The Tehsildar has visited the spot along with Patwari Thal and inspected the spot with the help of revenue records. Parties were also present at the spot. The Tehsildar has reported that the attached land is Plot No. 418, which is intact and grass is grown over it at present. In plot No. 423, house and court-yard of Respondent No.3 are in existence from before and the house has been repaired at present. The Tehsildar has specifically reported that the plot No. 423 and the house constructed over it are not part of attached property in dispute. In the statement of Govind Singh petitioner it has come that the disputed land is situated behind the new construction of Uttam Singh (respondent No.3) and two doors of the house open towards the disputed land. There is a vacant space in between the two lands. The learned S.D.M. also asked the counsel for the petitioner to file affidavit to the effect that the proceeding U/S 145 Cr.P.C. were also initiated pertaining to the house in question and the house was also attached, but the learned counsel shown his inability to furnish such affidavit and informed the Court that he has not to file any document. On the other hand respondent No.3 Uttam Singh filed affidavit that his house is situated on some portions of Plot Nos. 423 and 425 and there was no dispute pertaining to the possession of the said 7 property and this property was never attached. The above said affidavit of the respondent No.3 was not controverted by the petitioner. In the above circumstances of the case and on the basis of the evidence on record, the learned S.D.M. has rightly rejected the application of the petitioner vide order dated 22-6-2002 and it cannot be said that the judgment and order dated 9-7-1984 passed by the S.D.M., has not been complied with in its letter and spirits. In view of above discussion I do not find any ground to issue directions sought by the petitioner in this writ petition. The petition lacks merit and is liable to be dismissed. Accordingly, the writ petition is dismissed. (B.C. Kandpal, J.) 16.06.2008 ASWAL 8