1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4037 OF 2009 1) Premgir s/o Hiragir Giri (Died through his L.Rs.) 1A) Ishramgir s/o Premgir Giri Age: 44 Yrs., occu. Agril. 2) Bhagwan s/o Hiragir Giri Age: 63 Yrs., occu. Agril. 3) Ratangir s/o Hiragir Giri, Age: 50 Yrs., occu. Agril. 4) Sharadgir s/o Hiragir Giri Age: 40 yrs., occu. Agril. All r/o Hatnoor, Tq. Kannad, District Aurangabad. - PETITIONERS VERSUS 1) The State of Maharashtra, Through the Special Land Acquisition Officer-1, J.P.-2, Aurangabad. 2) Godavari Patbandhare Vikas Mahamandal, Through the Executive Engineer, Minor Irrigation Division, Aurangabad. - RESPONDENTS ***** Mr.AB Kale, Advocate for Petitioners; Mr.TS Londhe,AGP for respondent no.1-State Mr.SS Thombre, Advocate for Resp.No.2. ----- 2 CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT : 1) Heard. This petition challenges the order dated 5.4.2008 passed by the learned In- charge Civil Judge, Senior Division, Aurangabad in Regular Darkhast No.207/2007 filed by the petitioner/original claimant. By this order, the petitioner is directed to furnish bank guarantee or solvent surety in respect of the amount of the award, as a condition precedent, for withdrawal of the said amount. 2) Notice for final disposal was issued by this Court on 1st July, 2009. In response to the said notice, the learned Assistant Government Pleader appears for Respondent no.1, whereas Shri S.S.Thombre learned Counsel appears for the Respondent No.2 – the acquiring body. 3) Rule made returnable forthwith by consent of parties. Learned AGP and learned Counsel appearing for the respective respondents waive service. The matter is finally heard by consent of parties. 3 4) The facts, which are not in dispute, are : that the Award has been passed in the proceedings for acquisition of the land in Land Reference and the Reference court in L.A.R.No. 826/1996 enhanced the amount of the Award, by the judgment and order dated 27th September, 2005. Against this judgment and order, First Appeal has been preferred by the State being First Appeal No.2175/2008. However, the learned Counsel for the Respondents submit that no order of stay is passed in the said appeal although the appeal is admitted. It is also not in dispute that there is no condition prescribed, either in the Award or in the Judgment and Order of the Reference court or in any of the orders passed by this Court in First Appeal No.2175/2008, that the claimant/petitioner should be permitted to withdraw the amount subject to furnishing bank guarantee or by furnishing a solvent surety. 5) In view of aforesaid undisputed facts, the learned Judge of the Trial Court was wrong in directing the petitioners to furnish bank guarantee or solvent surety for withdrawal of the said amount, for which Regular Darkhast No. 207/2007 has been filed. The same, therefore, needs to be set aside. 6) In the result, the instant writ petition 4 succeeds. The order dated 5.4.2008 passed by the learned Civil Judge, Senior Division, Aurangabad, asking the petitioners to furnish bank guarantee or solvent surety for withdrawal of the amount, which is subject matter of Regular Darkhast No. 207/2007, is hereby quashed and set aside. The learned Trial Court is directed to permit the petitioners to withdraw the amount in question. Rule made absolute in aforesaid terms with no orders as to costs. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp4037.09 Authenticated copy (BD VADNERE,PS)