1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3805 OF 2009 Rajendra s/o Baliram Patil, Age-35 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3806 OF 2009 Gajanan s/o Supdu Patil, Age-70 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. 2 WITH WRIT PETITION NO.3807 OF 2009 Dilip s/o Govinda Patil, Age-42 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3808 OF 2009 Dhrupadabai Nana Patil, Age-60 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. 3 WITH WRIT PETITION NO.3809 OF 2009 Ramdas Hari Patil (Deceased), Through L.Rs:- a) Santosh Ramdas Patil Age-52 years, Occ: Agriculturist, b) Sau. Kalabai Ambarsing Patil, Age-Major, Occu:Agriculturist, c) Bhimkorbai Pandurang Patil, Age-Major, Occu:Agriculturist, All R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3810 OF 2009 Jijabrao s/o Motiram Patil, Age-45 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. 4 VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3811 OF 2009 Rajendra s/o Tryambak Patil, Age-37 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3812 OF 2009 Gokul s/o Supadu Patil, Age-45 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. 5 VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3813 OF 2009 Jitendra s/o Mukundsing Pardeshi, Age-35 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3814 OF 2009 Mirabai Santosh Patil, Age-45 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. 6 VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3815 OF 2009 Shri Ashish Ramesh Ajmera Age-35 years, Occ: Agriculturist, R/o-Dhule Tq-Dhule, Dist-Dhule. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3816 OF 2009 Subhash Baburao Patil (deceased) Through L.Rs:- 1) Subhabai Subhan Patil, Age-Major, Occ: Agriculturist, 7 2) Abhiman Subhan Patil, Age-Major, Occ: Agriculturist 3) Sukhdeo Subhan Patil, Age-Major, Occ: Agriculturist 4) Yuvraj Subhan Patil, Age-Major, Occ: Agriculturist 5) Shivaji Subhan Patil, Age-Major, Occ: Agriculturist 6) Bhaskar Subhan Patil (deceased) Through L.Rs:- 6(a) Kevalbai Bhaskar Patil, Age-Major, Occ: Agriculturist 6(b) Vilas Bhaskar Patil, Age-Major, Occ: Agriculturist 6(c) Bhaidas Bhaskar Patil, Age-Major, Occ: Agriculturist All R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH 8 WRIT PETITION NO.3817 OF 2009 Babulal s/o Vithal Patil, Age-55 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3818 OF 2009 Vijay s/o Tryambak Patil, Age-50 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH 9 WRIT PETITION NO.3819 OF 2009 Subhash s/o Jagannath Patil, Age-47 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3820 OF 2009 1) Abhiman Laxman Patil, Age-58 years, Occu:Agriculturist, 2) Sahebrao Laxman Patil, Age-Major, Occu:Agriculturist, 3) Atmaram Laxman Patil, Age-Major, Occu:Agriculturist, 4) Sakubai Asaram Patil, Age-Major, Occu:Agriculturist, 5) Surekha Lotan Patil, Age-Major, Occu:Agriculturist, 6) Chandrakala Bhaskar Patil, Age-Major, Occu:Agriculturist, 7) Jahajbai Laxman Patil, Age-Major, Occu:Agriculturist, All R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONERS. 10 VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3821 OF 2009 Bhagwat s/o Harising Patil, Age-52 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3822 OF 2009 Pratap s/o Hari Patil, Age-62 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. 11 VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3823 OF 2009 1) Yograj Tulshiram Patil, Age-35 years, Occ: Agriculturist, 2) Bhikan Tulshiram Patil(deceased) Through L.Rs:- 2A) Samadhan Bhikan Patil, Age-Major, Occ: Agriculturist, 2B) Sharad Bhikan Patil, Age-Major, Occ: Agriculturist, 2C) Shobhabai Bhikan Patil, Age-Major, Occ: Agriculturist, All R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONERS. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH 12 WRIT PETITION NO.3824 OF 2009 Bhanusing s/o Pundlik Patil, Age-48 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3825 OF 2009 Rajendra s/o Mukundsing Pardeshi, Age-35 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH 13 WRIT PETITION NO.3826 OF 2009 Bahinabai Dhansing Patil, Age-65 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. WITH WRIT PETITION NO.3827 OF 2009 Dagadu s/o Dajiba Patil, Age-75 years, Occ: Agriculturist, R/o-Dharagir, Tq-Erandol, Dist-Jalgaon. ...PETITIONER. VERSUS 1) The Special Land Acquisition Officer, Upper Tapi Project, Hatnur-2, Jalgaon, Dist-Jalgaon. 2) The Executive Engineer, Medium Project Division, Jalgaon, Tq. & Dist-Jalgaon. ...RESPONDENTS. 14 ... Mr.R.M. Patil, Advocate for the Petitioners in all these Petitions. Mr. Umakant Patil, Mr. N.H. BOrade, Mrs. S.S. Autade and Deelip Bankar Patil, A.G.P. for the Respondents. ... CORAM: K.K. TATED, J. DATE : 22ND JULY, 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, this Petition is heard finally at the stage of admission. 2. Heard learned counsel for the Petitioner and learned A.G.P. for the Respondents. 3. As a common question of law and fact is raised in these Petitions, the same are heard together and are being disposed of by this common Judgment. 4. By these Petition under Article 227 of the Constitution of India, the Petitioners challenges the 15 order dated 5th May, 2009 passed by Joint Civil Judge, Senior Division, Jalgaon on the application filed by the Petitioner for withdrawal of the amount deposited by the Respondents in the land acquisition matter. A few facts of the matter are as under: . The Special Land Acquisition Officer (for short "S.L.A.O.") issued notification under Section 4 of the Land Acquisition Act dated 28th February, 1998 for acquiring Petitioners' land for Anjani Project. Thereafter the S.L.A.O. issued notification under Section 6 dated 25th February, 1999. After following due process of law, the S.L.A.O. passed an award dated 28th July, 2000 and awarded compensation in respect of acquired land. Being aggrieved by the said award passed by the S.L.A.O., the Petitioner preferred Reference under Section 18 of the Land Acquisition Act. In the said Reference, the Reference Court passed Judgment and award dated 10th April, 2006 and awarded enhanced compensation for acquired land. Thereafter the Petitioners filed Regular Darkhast for recovery of amount. The Respondents deposited enhanced compensation before the Reference Court. The Petitioners applied to 16 the Reference Court for withdrawal of the amount deposited by the Respondents. In the said application the Reference Court passed impugned order dated 5th May, 2009 directing the Petitioners to submit Bank Guarantee of any nationalized bank of the equal amount. 5. Learned counsel for the Petitioners submitted that the Reference Court erred in coming to the conclusion that just because the Appeal preferred by the Respondents is pending before this High Court, the Petitioners are not entitled to withdraw the amount unless and until Bank Guarantee is provided. Therefore, the order passed by the Reference Court is against the justice, and equity and the same is liable to be set aside. Learned counsel for the Petitioner further submitted that in similar situation this High Court has taken view that if there is no stay in the First Appeal preferred by the State of Maharashtra against the impugned Judgment and award passed by the Reference Court, then the claimants are entitled to withdraw the amount deposited by the State Government without furnishing any security. Learned counsel appearing on behalf of the Petitioners relied on the Oral Judgment 17 dated 12th March, 2008 delivered by the learned Single Judge of this High Court in Writ Petition No.819 of 2008 and other connected matters. He also relied on the oral Judgment dated 7th March, 2007 delivered by the learned Single Judge of this High Court in Writ Petition No.1103 of 2007 and other connected matters. 6. On the other hand, learned A.G.P. appearing on behalf of the Respondents submitted that State of Maharashtra has preferred First Appeals against the Judgment and award passed by the Reference Court in the land acquisition matters and those Appeals are pending for admission. Learned A.G.P. further submitted that though they deposited enhanced compensation in the Reference Court, the Petitioners are not entitled to withdraw the same without furnishing security to the satisfaction of the trial Court because if they succeed in the First Appeals, it will be very difficult for them to recover the said amount from the Petitioners. Not only that learned A.G.P. further submitted that the Respondents have good chance of success in those First Appeals. Learned A.G.P. submitted that the Reference Court erred in coming to the conclusion that the 18 claimants are entitled to enhanced compensation in respect of the acquired lands. In view of these submissions, learned A.G.P. appearing on behalf of the Respondents prays for dismissal of the present Writ Petitions. 7. It is to be noted that lands of the Petitioners in these Petitions were acquired for various projects by the land acquisition officer. After the acquisition of the lands, the award came to be passed on various dates by the S.L.A.O. by determining the compensation payable to the Petitioners. Being dissatisfied by the award passed by the S.L.A.O. the Petitioners preferred Reference under Section 18 of the Land Acquisition Act. In all those References, the Reference Court enhanced the compensation payable to the Petitioners. When all these Petitioners filed execution applications in the Reference Court for executing the Judgment and award passed in land acquisition references, an order came to be passed by the learned executing Court directing the Petitioners to furnish Bank Guarantee as a condition precedent for withdrawal of the amount. It is to be noted that under Order 41 Rule 5 of the Code of Civil 19 Procedure, an Appeal cannot operate as stay of the proceeding under a decree or order unless and until specific order of the stay is passed by the appellate Court. Order 41 Rule 5 of the Code of Civil Procedure reads as under: "Order 41 Rule 5- Stay by Appellate Court - (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so faf as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. [Explanation- An order by the Appellate Court for the say of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the say of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the 20 order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.] (2) Stay by Court which passed the decree- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied- (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) [Subject to the provisions of sub- 21 rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application. [(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub- rule(3) of rule 1, the Court shall not make an order staying the execution of the decree.]" 8. In the present case, though the Respondents filed First Appeals against the Judgment and award passed by the Reference Court, there is no stay from the High Court for executing the Judgment and award passed by the Reference Court. 9. It is not in dispute that the Reference Court has passed an award whereby granting enhanced compensation in various Reference proceedings filed by the Petitioners. The said orders are in the nature of money decree. Normally an execution of the money decree cannot be stayed. In this view of the matter, I do not find that the condition as imposed by the Reference Court is 22 in accordance with the law. In any event, considering the time as elapsed from the date on which the Reference Court has passed an order and considering the fact that in none of the matters order passed by the Reference Court has been stayed by this Court, in that view of the matter I find that the Reference Court be directed to return the bank guarantees furnished by the Petitioners. Hence all these Writ Petition are allowed. 10. Rule is made absolute in terms of prayer clause (B) and (C) in all Writ Petitions, which read as under: "(B) To quash and set aside the condition put in the order dated 5.5.2009 passed by the learned Joint Civil Judge, Senior Division, Jalgaon asking for Bank Guaratnee in respective Regular Darkhasts and for that purpose issue any writ or order, (C) By issuing appropriate writ, order or direction, to release Bank Guarantee furnished by the Petitioners in respective Regular Darkhasts in the Court of Joint Civil Judge, Senior Division, Jalgaon." 23 11. There shall be no order as to costs. [K.K. TATED, J.] asb/JULY09/wp3805.09