1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4646 OF 2009 Devchand Mangu Vanjari, R/o-Kumbhari, Tq-Jamner, Dist-Jalgaon. ...PETITIONER. VERSUS The State of Maharashtra, Through Special Land Acquisition Officer, Jalgaon, Dist-Jalgaon. ...RESPONDENT. ... Mr.V.B. Patil Advocate for Petitioner. Mr.D.R. Kale, A.G.P. for Respondent. ... CORAM: K.K. TATED, J. DATE : 30TH SEPTEMBER, 2009. PER COURT : 1. Heard learned counsel for the Petitioner and learned A.G.P. for Respondents. By this Petition under Articles 226 and 227 of the Constitution of India the Petitioner - original claimant is challenging the order 2 dated 16th February, 2007 passed by Joint Civil Judge, Senior Division, Jalgaon below Exhibit 1 in Regular Darkhast No.133 of 2002 directing the Petitioner to furnish bank guarantee for withdrawal of the amount awarded under the Land Acquisition Act. 2. In the present case the Respondents acquired Petitioner's land under the Land Acquisition Act and after following the due process of law the Special Land Acquisition Officer passed award and awarded compensation. Being aggrieved by the award passed by the S.L.A.O., the Petitioner - original claimant preferred Reference under Section 18 of the Land Acquisition Act being Land Acquisition Reference No.27 of 1985 for enhancement of the compensation before Civil Judge, Junior Division, Jalgaon. The Reference Court decided the Reference on 13th December, 1999 and awarded enhanced compensation in respect of acquired land. Thereafter the Petitioner - original claimant filed Regular Darkhast No.133 of 2002 for executing the Judgment and award passed by the Reference Court. In the said Darkhast the Respondents deposited a sum of Rs. 4,81,044/- on 5th August, 2006. Thereafter the 3 Petitioner preferred application below Exhibit 1 for withdrawal of the said amount. In that application, the Respondents filed their say vide Exhibit 13 dated 1st September, 2006 pointing out that appeal preferred by the State of Maharashtra against the Judgment and award passed in Land Acquisition Reference No.27 of 1985 is pending before the High Court. Considering these facts, the Executing Court allowed Petitioner to withdraw a sum of Rs.3,91,335/- by furnishing bank guarantee of Nationalized Bank in the like amount till expiration of 4 months period after disposal of the appeal in the High Court. As per the said order, the Petitioner furnished bank guarantee dated 20th February, 2007 and withdrawn the said amount. 3. In the present case the Respondents filed their affidavit in reply dated 13th September, 2009 stating that First Appeal No.5950 of 2004 is pending before this Court against the Judgment and award passed by the Reference Court in L.A.R. NO.27 OF 1985. Para 3 of the said affidavit in reply reads as under: "3. I respectfully say and submit that against the judgment and order passed 4 by the Court below first appeal is preferred by the respondent before this Hon'ble High Court bearing First Appeal No.5950/2004, which is admitted and pending for final disposal before this Hon'ble High Court. I respectfully say and submit that, no Civil Application for seeking any stay order is passed by the Court below has been filed in the said first appeal." 4. It is admitted fact that the Respondents have not preferred any Civil Application in First Appeal for stay of the order passed by the Reference Court. In any case, Appeal is pending before the Court and as the Petitioner has already withdrawn the said amount by furnishing bank guarantee, it is not proper in the interest of justice to allow the Petitioner to withdraw the said amount without furnishing any surety. 5. Learned counsel for the Petitioner relies on the Judgment dated 25th January, 2008 passed by this Court (Coram: B.R.Gavai, J.) in Writ Petition No.7148 of 2007. He mainly relied on Para 8 of the said Judgment, which reads as under: 5 "8. It is not in dispute that the learned Reference Courts have passed a decree thereby granting enhanced compensation in the various reference filed by the petitioners. The said orders are in the nature of money decree. Normally, execution of a money decree cannot be stayed. In that view of the matter, I find that the condition, as imposed by the Reference Courts, was not in accordance with law. In any event,s considerable time has elapsed from the date on which Reference Courts have passed the orders. In none of the cases, order passed by the reference Court has been stayed by this Court. In that view of the matter, I find that the learned Reference Courts be directed to return the bank guarantees furnished by the petitioners." 5. In similar way in Writ Petition No.774 of 2005 decided on 8th April 2005, this Court (Coram: A.B.Naik, J.) has taken view that during the pendency of the First Appeal, claimant should furnish surety to the satisfaction of the trial Court. The relevant observations of the Judgment reads as under. 6 "Be it as may, the grievance of all the petitioners in this petition is that the executing court while permitting the petitioners to withdraw the amount as determined by the learned Civil Judge in Reference, the Executing Court asked to furnish bank guarantee from the claimants Decree holders. The decree holder as per the directions of executing Court have furnished bank guarantee. As per the chart produced on record today, it is evident that the State Government has filed appeals against the judgment and order of reference court. This court has admitted some appeals and some appeals are still pending for admission. In the pending appeal the State Government has not applied for any interim relief. In view of this position, keeping the bank guarantee alive will not be just and proper. This Court on in similar situations has directed the Civil Court / Executing Court to revoke / release the bank 7 guarantee given by claimant. Following the same path, I direct the Civil / Executing Court to discharge / revoke the bank guarantee. In view of the fact that this Court has admitted the appeals, hence the petitioners have to file undertaking before the executing court giving undertaking that in case the judgment of the civil court is reversed / modified in appeal by this Court they shall return back the amount as per the judgment and order of this court. In view of this aspect and in identical matters i.e. W.P. No. 6086/2004 on 19th October, 2004 had passed similar orders by directing the petitioners to file an undertaking before the executing court and, thereby directing the executing court to discharge the bank guarantee which was given by the petitioner / claimants." 6. Considering these facts, Writ Petition is allowed. Order passed by the Executing Court dated 16th February, 8 2007 directing the Petitioner to furnish bank guarantee of the nationalized bank is set aside. The Petitioner is directed to furnish any other surety to the extent of the said amount to the satisfaction of the trial Court except bank guarantee within 12 weeks from today. On furnishing surety to the satisfaction of the trial Court, the trial Court is directed to release the bank guarantee. Writ Petition is allowed in above terms. [K.K. TATED, J.] asb/SEPT09/wp4646.09