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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 4243 OF 2009

Pandit Lotu Patil (Deceased)

Through L.Rs.

.... PETITIONERS

V E R S U S

The State of Maharashtra & Others

.... RESPONDENTS

Mr. A.B.Kale, Counsel for Petitioner.

Mr. U.K.Patil, A.G.P. for State.

..................

[ CORAM : K.K.TATED, J. ]

DATE : 29/7/2009

PER COURT :

1.

Rule. Rule returnable forthwith. With the consent of learned

counsel for the parties, this Petition is heard finally at admission stage.

2.

Heard Mr. A.B. Kale, learned counsel appearing on behalf of

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petitioner and Mr. U.K.Patil, learned A.G.P. appearing on behalf of State.

3.

By this petition under Article 227 of the Constitution of India

filed by the petitioners/claimants are challenging the Order dated

21/3/2009 passed by the learned Civil Judge (Sr.Division), Jalgaon below

Exh. 1 and application 17 in Regular Darkhast No. 339 of 2002 in L.A.R.

No. 604 of 1998, by which the trial Court allowed petitioner to withdraw a

sum of Rs. 7,18,654/- (Rupees Seven Lacs Eighteen Thousand Six Hundred

Fifty Four only) by furnishing bank guarantee of any Nationalized Bank in

the like amount.

4.

A few facts of the present case are as under .

The Special Land Acquisition Officer issued notice under

Section 4 of the Land Acquisition Act for acquiring petitioner’s land for

public purpose. After following due process of law, the Special Land

Acquisition Officer declared Award dated 17/1/2000 and granted

compensation.

5.

Being aggrieved by the said Award, the petitioner preferred a

Reference and in the said Reference, the Reference Court by Judgment and

Award dated 17/1/2000 awarded enhanced compensation. Though the

Reference Court enhanced compensation payable to the petitioner, the

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respondent State failed to pay the same to the petitioner and/or to deposit

in trial Court and, therefore, petitioner preferred Regular Darkhast No. 339

of 2002. In the said Regular Darkhast No. 339 of 2002, the respondents

deposited sum of Rs. 7,18,654/- (Rupees Seven Lacs Eighteen Thousand

Six Hundred Fifty Four only) on 20/2/2009. The learned counsel

appearing on behalf of petitioner states that the Respondent State

preferred First Appeal against the Judgment and Award dated 17/1/2000

passed by the Civil Judge (Sr.Division), Jalgaon. There was delay on the

part of the respondent to prefer First Appeal and, therefore, Respondent

preferred Civil Application No. 996 of 2004 was allowed on 9/2/2004 and

First Appeal was admitted on 8/6/2009. There is no stay in First Appeal.

Therefore, the learned counsel appearing on behalf of petitioner submitted

that the impugned order dated 21/3/2009 passed by the Jt. Civil Judge

(Sr.Division), Jalgaon in Regular Darkhast No. 339 of 2002 is without

jurisdiction and against the natural justice

6.

Mr. U.K. Patil, learned A.G.P. appearing on behalf of State

supported the order passed by trial Court dated 21/3/2009. He contended

that though there was no stay in the First Appeal, the First Appeal was

admitted on 8/6/2009 and, therefore, the bank guarantee furnished by the

petitioner at the time of withdrawing the amount of Rs. 7,18,654/-

(Rupees Seven Lacs Eighteen Thousand Six Hundred Fifty Four only) to

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continue till the hearing and final disposal of First Appeal. He submitted

that the amount involved in the present case is more than Rs. 7,00,000/-

and, therefore, the present Writ Petition is liable to be dismissed.

7.

It is to be noted that lands of the petitioner in this petition

were acquired for public purpose by the Land Acquisition Officer. After the

acquisition of the lands, the Award came to be passed by Special Land

Acquisition Officer determining the compe