1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7721 OF 2009 Jaimalsingh s/o Gurucharansingh Randhawa, age: 54 years, Occ: Business, R/o Flat No.103, Sai Arcade, Cannought, CIDCO, Aurangabad. Petitioner Versus 1 The State of Maharashtra, through its Principal Secretary, Revenue Department, Mantralaya, Mumbai. 2 The Additional Commissioner, Aurangabad Division, Aurangabad. 3 The Collector, Aurangabad, Tq. & Dist Aurangabad. 4 The Tahsildar, Paithan, Tq. Paithan, District Aurangabad. Respondents Mr.R.N.Dhorde, advocate holding for Mr.P.S.Dighe, advocate for petitioner. Mr.V.B.Ghatge, A.G.P. for Respondents. CORAM: R.M.BORDE, J. DATE : 21st April, 2010. ORAL JUDGMENT: 1 Heard Shri R.N.Dhorde, learned Counsel holding for Shri P.S.Dighe, advocate for petitioner and Shri V.B.Ghatge, learned Assistant Government Pleader for Respondents. 2 Rule, made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The order passed by Additional Commissioner, Aurangabad Division, Aurangabad, on 30 th July, 2009, is subjected to challenge in this petition. 3 Petitioner contends that he approached revenue authorities seeking permission for conversion of land for non agricultural user and after following prescribed procedure, permission for conversion of user of land was granted by revenue officials on 10.02.2009. Subsequent thereto, the Collector, on its own, issued notice on 15.04.2009 directing the petitioner to deposit an amount of Rs.2,95,650/- towards penalty within seven days from the date of notice. The notice in question issued by the Collector was subject matter of challenge before the Commissioner in appeal presented by petitioner. On admission of the appeal, appellate authority granted stay to the impugned order and prescribed next date of hearing as 27.10.2009. However, before prescribed date, the Collector proceeded to revoke earlier order in respect of permission for non agricultural user of land, in view of the order passed on 12.06.2009. Petitioner was again constrained to approach the appellate authority in view of this development. The subsequent order passed by Collector was also stayed by the appellate authority, however, subject to furnishing bank guarantee of Nationalised Bank for an amount of Rs.2,95,650/- before the Collector. 4 According to learned Counsel for the petitioner, when appellate authority is seized of the matter, it was not open for the Collector to 3 take up the matter for consideration and to revoke earlier order. It is also pointed out that stay order was operating since 09.06.2009 and as such order passed by Collector is bad in law and is liable to be quashed. 5 Notice was issued to the State Government. An affidavit-in- reply is presented on behalf of Respondent No.3 and one Hemlata Prakash Wangikar, Revenue Assistant in the office of Collector, has sworn the affidavit. It is stated in the affidavit-in-reply that the order of stay granted by appellate authority on 09.06.2009 was not communicated to the original authority i.e. Collector till 17.06.2009. It is stated that order of stay was actually communicated on 17.06.2009 and by then the Collector had already passed order in pursuant to the notice dated 15.04.2009. It is, therefore, contended that no fault can be attributed to the Collector as he was not made aware of presentation of appeal and order of stay granted by appellate authority. 6 Although these aspects are controverted by petitioner, however, petition can be disposed of without proving correctness or otherwise of contentions raised by respective parties. The facts remains that the Collector has passed order revoking earlier order during pendency of appeal. The appeal was in respect of challenge to the notice issued by Collector and obviously until disposal of appeal, in all fairness, the Collector ought not to have acted in the manner in which action is taken. 7 Without going into merits of the controversy at this stage, since appeal is pending, I deem it appropriate to direct the Additional Commissioner, Aurangabad Division, Aurangabad, to hear and decide pending appeal, as expeditiously as possible, preferably within four weeks from today. The condition imposed in the order passed by Collector in 4 respect of furnishing bank guarantee, as a condition precedent for stay of the order passed by Collector on 12.06.2009, shall stand suspended until disposal of appeal. 7 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. Pending Civil Application does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/wp772109