Sunday 8 December 2013

Land acquisition compensation-security to release amount should not be demanded by court



The mandate of Rule 5 of Order  
41 of the Civil Procedure Code provides that  
the appellate Court may for sufficient cause  
order stay of execution of such decree.

Therefore,   in   absence   of   any   stay  
in   appeal,   to   impose   onerous   condition   of 
furnishing of Bank guarantee by the executing  
Court   was   not   proper.     The   decree   which   is  
passed   in   favour   of   the   petitioner,   who   is 
agriculturist, could not have been frustrated  
by imposing the condition of furnishing Bank  
guarantee   while   withdrawing   the   decretal  
amount by the petitioner which was deposited  
by the respondents in pursuant to the decree  
passed   by   the   Reference   Court.     It   follows  
from   Rule   5   of   Order   41   of   the   Civil  
Procedure   Code   that   unless   reasons   are  

recorded and stay is granted by the appellate  
Court, merely filing of appeal should not be  

taken as stay in appeal.

WRIT PETITION NO.8377 OF 2012
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
Deelip s/o Vishwanath Patil,

       VERSUS             
The Special Land Acquisition Officer,

                      
CORAM : S.S. SHINDE, J.
                       DATED : 6TH MAY, 2013
  
Citation; 2013 (4) ALL M R 669,2013(4)ABR 427,2013(4)BomCR598,2013(5) MHLJ 243



It   is   the   case   of   the   petitioners   that, 
3.

the   petitioner   in   W.P.   No.   8377   of   2012   is   the 
owner of land Gat No. 11/2/3 admeasuring 1 Hector 
0 Are, petitioner in W.P. No. 8379 of 2012 is the 
owner of land Gat No. 11/2/1 admeasuring 3 Hector 
92 Are, Gat No. 113/B admeasuring 2 Hector 15 Are, 
and land Gat No.113/A admeasuring 1 Hector 33 Are 

and   potkharaba   0.02,   the   petitioner   in   W.P.   No.
8392 of 2012 is the owner of land Gat No. 11/2/4 
admeasuring 2 Hector 46 Are and the petitioner in 
W.P. No. 8395 of 2012 is the owner of land Gat No. 
113/B   admeasuring   2   Hector   15   Are   and   Gat   No. 
113/A   admeasuring   1   Hector   33   Are   and   0.02 
potkharaba,   situated   at   village   Hingne.   The   land 
of   the   petitioners   was   acquired   by   the   State 
Government  for Waghur  Project.  Notification  under 
section   4   of   the   Land   Acquisition   Act   was 
published   on   30th   October,   1997,   notification 
under   section   6   was   published   in   Government 
Gazette   on   5th   November,   1998,   the   possession   of 
lands   were   taken   on   28th   June,   2001,   Award   is 

passed by the S.L.A.O. on 21st December, 2000. It 
is   further   case   of   the   petitioners   that,   being 
aggrieved   by   the   compensation   awarded   by   the 
S.L.A.O., the Reference Applications are preferred 
before the trial Court for enhancement.
4.
  It   is   further   case   of   the   petitioners 
that, L.A.R. Nos. 147 of 2006 and 141 of 2006 were 

filed in respect of the land of the petitioner in 
W.P. No.8377 of 2012,  L.A.R. Nos. 140 of 2006 and 
141 of 2006 were filed in respect of the land of 
the   petitioner   in   W.P.   No.8379   of   2012,     L.A.R. 
No. 146 of 2006 was filed in respect of the land 
of   the   petitioner   in   W.P.   No.8392   of   2012   and 
L.A.R. No. 141 of 2006 was filed in respect of the 
land of the petitioner in W.P. No.8395 of 2012. It 
is  further  case  of the  petitioners  that,  on 16th 
November,   2006   the   Joint   Civil   Judge,   Senior 
Division, Jalgaon allowed the above mentioned Land 
Acquisition   References   by   common   judgment   and 
order   and   held   the   market   value   of   the   land 
acquired   on   the   date   of   publication   of 

notification i.e., @ Rs. 2,50,000/­ per hector for 
5.
Bagayat land.
It   is   further   case   of   the   petitioners 
that,   the   petitioner   in   W.P.   No.8377   of   2012 
approached   the   executing   Court   by   way   of   Regular 
Darkhast  No.  497 of 2008,  the  petitioner  in W.P. 
No.8379 of 2012 approached the executing Court by 

way   of   Regular   Darkhast   No.494   of   2008,   the 
petitioner in W.P. No. 8392 of 2012 approached the 
executing Court by way of Regular Darkhast No.159 
of   2009   and   the   petitioner   in   W.P.   No.   8395   of 
2012   approached   the   executing   Court   by   way   of 
Regular   Darkhast   No.410   of   2008   for   recovery   of 
the amount. The amount came to be deposited by the 
respondents. It is further case of the petitioners 
that,   the   executing   Court   has   passed   the   order 
below   Exhibit­1   and   on   application   Exhibit­30   on 
30th   April,   2009   and   permitted   the   petitioner   to 
withdraw amount of Rs. 2,41,870/­ in W.P. No.8377 
of   2012,   Rs.28,39,271/­   in   W.P.   No.8379   of   2012, 
Rs.4,17,381/­   in   W.P.   No.   8392   of   2012   and   Rs.

14,73,874/­ in W.P. No. 8395 of 2012, on condition 
to obtain bank guarantee of any Nationalized Bank 
in   the   like   amount   after   due   verification   and 
identification   till   expiration   of   six   months 
period after disposal of the appeal in the Hon'ble 
High   Court   and   also   sought   undertaking   in   that 
The W.P. No. 8377 of 2012 is filed being 

6.
regard.
aggrieved   by   the   part   of   the   order   by   which   the 
petitioner is asked to furnish the bank guarantee 
for withdrawal of the amount of Rs.2,41,870/­. The 
W.P. No. 8379 of 2012 is filed being aggrieved by 
the part of the order by which the petitioner is 
asked to furnish the bank guarantee for withdrawal 
of the amount of Rs.28,39,271/­. The W.P. No. 8392 
of   2012   is   filed   being   aggrieved   by   the   part   of 
the   order   by   which   the   petitioner   is   asked   to 
furnish   the   bank   guarantee   for   withdrawal   of   the 
amount   of Rs.4,17,381/­  and the  W.P.  No. 8392  of 
2012 is filed being aggrieved by the part of the 
order by which the petitioner is asked to furnish 

the bank guarantee for withdrawal of the amount of 
7.
Rs.14,73,874/­.
The   learned   Counsel   appearing   for   the 
petitioners   submits   that,   the   condition   of 
furnishing bank guarantee of Nationalized Bank for 
withdrawal   of   the   amount   is   very   harsh.     The 
entire land of the petitioners is acquired by the 

respondent   State.   It   is   submitted   that,   there   is 
no   any   statement   on   behalf   of   the   respondents 
that, they have preferred the appeals challenging 
the   judgments   and   orders   in   the   Reference 
Applications   and   the   stay   is   granted   by   the 
appellate   Court.   Therefore,   relying   upon   the 
the learned Counsel appearing for the petitioners 
submits   that,   all   these   writ   petitions   may   be 
allowed.
pleadings in the petitions, grounds taken thereto, 
8.
The   learned   A.G.P.   appearing   for   the 
State   or   the   learned   Counsel   appearing   for   the 
respondent No. 2 have not brought to the notice of 

this   Court   that,   the   judgments   and   orders   under 
Reference   were   challenged   before   the   appellate 
Court and the appellate Court has granted stay to 
the   execution   of   the   judgments   and   orders   passed 
by   the   Joint   Civil   Judge,   Senior   Division, 
Jalgaon.     The   learned   Counsel   appearing   for   the 
respondent   No.   2   fairly   concedes   that,   the   point 
raised   in these  writ  petitions   is no longer  res­

integra   and   same   is   answered   by   this   Court   by 
various judgments.
I have given careful consideration to the 
9.
submissions   of   the   Counsel   appearing   for   the 
parties.   With the able assistance of the learned 
Counsel   appearing   for   the   parties,   perused   the 
pleadings in the petitions, grounds taken thereto 
and   the   entire   material   placed   on   record.   It 
appears   that,   this   Court   issued   notices   to   the 
respondents   on   9th   October,   2012   which   were   made 
returnable on 23rd October, 2012.  Thereafter, the 
the petitions were listed for hearing at least on 
four to five dates, however, no reply is filed by 

the   respondents.     Therefore,   this   Court   has   to 
proceed on the footing that, there is no stay to 
the   common   judgments   and   orders   passed   by   the 
Joint Civil Judge, Senior Division, Jalgaon dated 
16th November, 2006 in L.A.R. Nos. 145 of 2006 to 
148 of 2006 in W.P. Nos. 8377 of 2012 and 8392 of 
2012, in L.A.R. Nos. 140 of 2006 and 141 of 2006 
The   point   raised   in   this   petition   is   no 
10.

in W.P. Nos. 8379 of 2012 and 8395 of 2012.
longer  resintegra  and   covered   by   the   reported 
judgment   of   this   Court   in   the   case   of  Vilas 
Sumersing   Patil   vs.   Special   Land   Acquisition 
Officer and another [2012(2) Mh.L.J.314]. In that 
case, this Court has taken a view that, if there 
is   no   stay   to   the   award   passed   by   the   Reference 
Court, in that case, the petitioners are justified 
in   making   a   prayer   for   revocation   of   the   bank 
guarantee and for quashing of the order passed by 
the   Executing   Court   seeking   bank   guarantee   from 
the petitioners, as a condition for permitting the 
withdrawal   of   the   amount   deposited   in   the   Court. 

Paragraph   Nos.   14   to   16   of   the   judgment   in   the 
 14.
case of Vilas Sumersing Patil (supra) reads thus :
The   provisions   of   Order   41   Rule   5  
of the Civil Procedure Code reads thus : 
“5.    Stay   by   Appellate   Court.­­   (1)     An  
appeal   shall   not   operate   as   a   stay   of  
proceedings under a decree or order appealed  
from except so far as the Appellate Court may  
ig
order,   nor   shall   execution   of   a   decree   be  
stayed   by   reason   only   of   an   appeal   having  
been   preferred   from   the   decree;   but   the  
Appellate   Court   may   for   sufficient   cause  
order stay of execution of such decree.
   Explanation.­­   An order by the appellate  
Court for the stay of execution of the decree  
shall   be   effective   from   the   date   of   the  
communication  of such order  to the Court  of 
first instance, but an affidavit sworn by the  
appellant,   based   on   his   personal   knowledge,  
stating   that   an   order   for   the   stay   of  
execution of the decree has been made by the  
Appellate   Court   shall,   pending   the   receipt  
from the Appellate Court of the order for the  
stay   of   execution   or   any   order   to   the  
contrary, be acted upon by the Court of first  
instance. 

Stay   by   Court   which   passed   the 
(2)  
decree.­­   Where  an application  is made  for  
stay   of   execution   of   an   appealable   decree  
before the expiration of the time allowed for  
appealing   therefrom,   the   Court   which   passed  
the   decree   may   on   sufficient   cause   being  
shown order the execution to be stayed.
(3)
No order for stay of execution shall be  
made   under   sub­rule   (1)   or   sub­rule   (2)  
(a)
ig
unless the Court making it is satisfied ­­
that substantial loss may result to the 
party   applying   for   stay   of   execution   unless  
the order is made;
(b)
that   the   application   has   been   made  
without unreasonable delay; and
(c)
that   security   has   been   given   by   the  
applicant   for   the   due   performance   of   such 
decree or order as may ultimately be binding  
upon him.
(4)
Subject   to   the   provisions   of   sub­rule  
(3), the Court may make an exparte order for  
stay of execution pending the hearing of the  
application.
(5)
Notwithstanding   anything   contained   in 
the   foregoing   sub­rules   where   the   appellant  

fails   to   make   the   deposit   or   furnish   the 
security specified in sub­rule (3) of rule 1, 
the Court shall not make an order staying the  
15.
execution of the decree.”
Bare perusal of provisions of Rule  
5   of   Order   41   of   the   Civil   Procedure   Code  
would show that, an appeal shall not operate  
as   a   stay   of   proceedings   under   a   decree   or  
order   appealed   from   except   so   far   as   the 
appellate   Court   may   order,   nor   shall  

execution   of   a   decree   be   stayed   for   reason  
only of an appeal have been preferred against  
the decree.   The mandate of Rule 5 of Order  
41 of the Civil Procedure Code provides that  
the appellate Court may for sufficient cause  
order stay of execution of such decree.
16.
Therefore,   in   absence   of   any   stay  
in   appeal,   to   impose   onerous   condition   of 
furnishing of Bank guarantee by the executing  
Court   was   not   proper.     The   decree   which   is  
passed   in   favour   of   the   petitioner,   who   is 
agriculturist, could not have been frustrated  
by imposing the condition of furnishing Bank  
guarantee   while   withdrawing   the   decretal  
amount by the petitioner which was deposited  
by the respondents in pursuant to the decree  
passed   by   the   Reference   Court.     It   follows  
from   Rule   5   of   Order   41   of   the   Civil  
Procedure   Code   that   unless   reasons   are  

recorded and stay is granted by the appellate  
Court, merely filing of appeal should not be  
11.
taken as stay in appeal.
In   the   present   case,   as   stated   earlier 
though   notices   are   issued   to   the   respondents   on 
9th October, 2012, no reply is filed on behalf of 
the respondents.  Nothing is brought to the notice 
of   this   Court   that,   award   is   challenged   by   the 
ig
respondents and there is stay order granted by the 
High Court.  Therefore, in absence of any reply in 
the   writ   petitions   or   any   document   brought   on 
record   to   show   that,   the   respondents   have 
preferred   the   appeals   challenging   the   award   and 
further  in the  said appeals,  the  stay is  granted 
by   the   High   Court.   Therefore,   it   will   have   to 
presume that, it is admitted position that, there 
is no stay to the award by the High Court.
12.
In   that   view   of   the   matter,   in   view   of 
the   judgment   of   this   Court   in   the   case   of  Vilas 
Sumersingh Patil (supra), the petitioners are very 
well justified in making the prayer for revocation 

of   the   bank   guarantee   and   for   quashing   of   the 
order   passed   by   the   Executing   Court   seeking   bank 
guarantee from the petitioners, as a condition for 
permitting for withdrawal of the amount deposited 
in the Court. The petitioners to file undertaking 
before   the   concerned   Court   that,   in   case   the 
appellant State Government in appeal succeeds, if 
The   writ   petitions   are   allowed   in   terms 
13.

any, the petitioner will bring back the amount.
of   prayer   clause   (B).   Rule   is   made   absolute   on 
above terms.  
                                   

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