mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.5484 OF 2009 Shri Prakash G. Jain ...Petitioner Vs,. Union of India ..Respondent Mr. R.A. Dada, Senior Counsel with Mr. A.S. Rao and Mr. M.S. Kumthekar for the Petitioner Mr. A.M. Sethna with Mr. P. Khosla and Mr. H.P. Chaturvedi, for the Respondent. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 18TH SEPTEMBER , 2009 P.C. Rule. Heard forhtwith. 2. We had earlier passed an order on July, 16, 2009 allowing the petition and directing the Appeal to be proceeded with without any predeposit with further directions. 3. On behalf of the petitioner learned Counsel on 31st July, 2009 brought to our notice that the statement made earlier was not correct. In the light of that the order was recalled and the matter was placed again for reconsideration. 4. On 14th June, 2009 we noted that a learned Bench of the Tribunal on 10th January, 2008 had referred the matter to the Full Bench. The matter was thereafter before the Full Bench on 1st October, 2008 and was adjourned to 24th December, 2008. 5. The matter was not disposed off by the Full Bench of the Tribunal. 6. On 2nd April, 2009 a learned Division Bench took up the issue of pre-deposit and directed the deposit of 80% of the penalty. It is this order which is the subject matter of the present petition. 7. The matter was adjourned at the instance of the respondents to take instructions. 8. We have heard learned Counsel for the parties. In our opinion once the Division Bench referred the matter for consideration to a larger Bench it was a recognition of a question arising for consideration. Secondly, once the question itself was to be heard by Full Bench it presupposes that the Division Bench which referred the matter to the larger Bench itself had come to the conclusion that there was no need for pre-deposit, though an express order had not been made. Such an order must be implied, otherwise the appeal would not be properly constituted for being referred to a larger Bench. One of the conditions was pre-deposit or waiver of pre-deposit. Under these circumstances, in our opinion, after the matter was referred to a larger Bench for answering the question of law the learned Division Bench could not have assumed jurisdiction and pass order of predeposit, even assuming that no order was passed earlier. The order thus was totally without jurisdiction and consequently, the order is liable to be set aside. 9. Considering the above, the impugned order dated 2nd April, 2009 is set aside. The amount of Rs.9,60,000/- lying with the respondents since 12th April, 2003 to continue to remain deposited pending the hearing and final disposal of the Appeal and for a period of eight weeks thereafter. 10. Rule made absolute accordingly. No order as to costs. (D.G. KARNIK,J.) (F.I. REBELLO,J.)