IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL WRIT PETITION NO.792 OF 2009 Sayed Mohamad Tahir Ali Sah ………Petitioner Versus SDM Khatima, U.S. Nagar & others …Respondents Dated: April 21, 2010 Sri T.P.S. Takuli, Advocate for the petitioner Sri Amit Bhatt, Addl. GA for the State/respondents 1 to 3 Sri S.K. Mandal, Advocate for respondent No.4 Sri H.S. Nagarkoti, Advocate i/b Sri P.S. Chamiyal, Adv. for respondent no.5 HON. DHARAM VEER, J. By means of this writ petition, the petitioner has sought issuance of writ of mandamus directing the respondents No.2 & 3 to handover the possession of the attached property in question to the Receiver i.e. Mohammed Ahmed-respondent no.5, in accordance with the report dated 22.4.2008. Heard learned counsel for the parties and perused the entire material on record. Facts of the case are that on 22.11.2004, an application was moved by the petitioner before the SDM, Khatima praying therein that the respondent No.4-Hafees Ahmad Khan may be restrained to interfere with the peaceful possession of the petitioner over the property in dispute, on which SDM Khatima directed S.H.O. to submit his report. On 24.11.2004, S.I. Sitarganj submitted its report to SDM Khatima stating that there is complete possibility of breach of peace and prayed that the property along with the crops growing therein may be attached as 2 per Section 146(1) Cr.P.C. so that till the final disposal, the same may be given in Supurdgi of some impartial person. Thereafter, on 10.2.2005, the petitioner moved another application u/s 146 Cr.P.C. before the SDM, Khatima for attachment on which, SDM Khatima directed SHO Sitarganj to submit report. The report was submitted on 29.11.2005 by P.S. Sitarganj stating therein that if the property in question is handed over to any of the parties, the situation of breach of peace may occur, hence it was prayed that the property in question may be given in Supurdgi of Baleshwar Prasad. Thereafter, on 6.3.2006, SDM, Khatima again sought a report from In-charge Inspector, Kotwali Sitarganj to submit an explanatory report that at present whether there is any chance of breach of peace or not. In compliance, In-charge Inspector Kotwali Sitarganj vide report dated 19.3.2006 reported that the property in question may be attached and may be handed over to some impartial person in order to maintain peace. Ultimately, on 3.4.2006, learned SDM, Khatima attached the property in question and gave the same into the Supurdgi of Village Pradhan Baleshwar Prasad directing him to properly look after the same and in case any situation arises, the same would be brought into the notice of the Court. Against the aforesaid order dated 3.4.2006, the respondent no.4 preferred a revision which was decided by learned Sessions Judge, U.S. Nagar on 11.7.2006 thereby dismissing the revision and affirming the order dated 3.4.2006. After that on 9.10.2006, SDM Khatima passed an order that vide order dated 3.4.2006, the property in question was given into the Supurdgi of Baleshwar Prasad, however as per the report of P.S. Sitarganj dated 21.9.2006, the property in question was found in the possession of respondent no.4-Hafeez Ahmed, therefore, In-charge Inspector P.S. Sitarganj was directed to 3 handover the property in question into the Supurdgi of some other person instead of Baleshwar Prasad. Thereafter, vide orders dated 18.5.2007, 14.6.2007, 2.7.2007 and 20.8.2007, SDM Khatima directed the In- charge Inspector P.S. Sitarganj to comply with the order dated 9.10.2006. Thereafter, on 3.1.2008, SDM, Khatima directed the Tehsildar, Sitarganj, U.S. Nagar to attach the property in dispute by using necessary public force and give the same in the Supurdgi of some impartial person. On 22.4.2008, Naib Tehsildar Sitarganj gave the property into the Supurdgi of the respondent no.5-Mohd. Ahmed. Now, the petitioner has come up before this Court alleging that the actual physical possession of the property was not handed over to the respondent no.5 rather the property is still retained with the respondent no.4. It is submitted on behalf of the petitioner that the property in dispute is not under the Supurdgi of respondent no.5. A counter affidavit has been filed on behalf of respondent no.5-Mohd. Ahmed, in paragraph 11 whereof, it has been stated that on 22.4.2008, Naib Tehsildar came to his house and directed him to sign on blank papers. It is stated that the deponent-respondent no.5 was illiterate and could make his signatures only and on the direction of Naib Tehsildar, he had signed on that blank paper and after about one hour, he came to know that he has been appointed Receiver of the property in dispute. But the actual possession of the property in dispute was not handed over to him and respondent no.4 is still in possession over the property in dispute for which deponent was appointed Receiver. He also filed his affidavit before the SDM, Khatima, U.S. Nagar stating the same facts. 4 In view of the above, the Court finds that vide order dated 3.4.2006, the property in dispute was attached and was given in the Supurdgi of Baleshwar Prasad, Gram Pradhan, however later on P.S. Sitarganj reported that the respondent no.4 is found in possession over the property in dispute, therefore, SDM, Khatima vide order dated 9.10.2006 directed In-charge Inspector P.S. Sitarganj to give the property in dispute into the Supurdgi of some impartial person. After that vide orders dated 18.5.2007, 14,6,2007, 2.7.2007 and 20.8.2007, the SDM Khatima again directed to comply with the order dated 9.10.2006 and on 3.1.2008, Teshildar Sitarganj was directed to comply with the order dated 3.4.2006 thereby giving the property into the Supurdgi of some impartial person. Ultimately, on 22.4.2008, as per the orders of Naib Tehsildar, Sitarganj, property in question was shown to be given into the Supurdgi of the respondent no.5. Now, the respondent no.5 has filed his affidavit before this Court stating therein that he had not received the actual physical possession of the property in dispute but the Naib Tehsildar had directed him to sign on blank papers and after one hour thereof, he came to know that he was appointed as Receiver and he has specifically stated that still the respondent no.4 is in actual possession of the property in dispute. Therefore, the Supurdgi given to the respondent no.5 order dated 22.4.2008 by Naib Tehsildar is fictitious and incorrect, as the respondent no.5 was not entrusted with the actual possession of the property in dispute. Hence, the order dated 22.4.2008 deserves to be set aside. For the reasons as aforesaid, the writ petition is allowed. Order dated 22.4.2008 passed by the Naib Tehsildar giving the property in question into the Supurdgi of the respondent no.5 is set aside. SDM, Khatima is 5 directed to appoint an independent and impartial Receiver within two weeks after the receipt of this order and he himself will handover the possession of the property attached by him vide order dated 3.4.2006, to the Receiver, so appointed by him. Both the parties are directed to appear before the SDM, Khatima on 05.05.2010. It is further stated that since it is an old case, therefore, the S.D.M. Khatima is further directed to decide the case expeditiously preferable within six months. (Dharam Veer, J.) 21.04.2010 Rajeev Dang