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2012 DIGILAW 1791 (BOM)

Jyoti Subhash Bhansale v. Collector

2012-09-24

R.M.SAVANT

body2012
Order 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 The challenge in the above Writ Petition is to the order dated 23/01/2012 passed by the learned District Judge-16, Pune by which order the Application filed by the Petitioner herein being Misc. Application No.209 of 2011 came to be allowed. Resultantly, the Petitioner was allowed to withdraw the amount of Rs.9,50,000/-deposited by the Respondent No.3 in the Trial Court in Land Acquisition Reference No.152 of 2004, however, the same was made subject to the Petitioner furnishing solvent surety for the said amount. The direction for furnishing solvent surety is being taken exception to by the Petitioner in the above Petition. 3 The land of the Petitioner was acquired for widening of the road at Kasba Peth, Pune by following the gamut of the process as laid down in the Land Acquisition Act, 1894 (for short “the said Act). The Special Land Acquisition Officer declared the Award on 29/03/2004 and directed payment of compensation amounting to Rs.21,12,627/-. The Respondent No.3 is the acquiring body. It seems that the Petitioner sought a reference, pursuant to which the matter was referred to the Reference Court under Section 18 of the said Act. The Reference Court passed its Award on 22/10/2007 whereby the market value of the acquired land was fixed at Rs.8,569/-per square meter and the value of the ground plus first floor structure was fided at Rs.1,75,000/-and that of the loft at Rs.52,800/-. 4 Aggrieved by the Award of the Reference Court, the Respondent No.3 – the Municipal Corporation challenged the said Award of the Reference Court by way of filing First Appeal under Section 54 of the said Act in this Court, since the said First Appeal was belated by 697 days, it filed an Application for condonation of delay. The said Application for condonation of delay came to be rejected by this court by order dated 3/5/2010. This Court did not deem it fit to condone the said delay of 697 days in filing the said Appeal. The Respondent No.3 thereafter carried the matter by way of SLP to the Apex Court being SLP (Civil) No. (CC 179/2011). The said SLP came to be dismissed by the Apex Court by order dated 18/2/2011. In view of the dismissal of the said SLP, the Award of the Reference Court dated 22/10/2007 has become final and binding. The Respondent No.3 thereafter carried the matter by way of SLP to the Apex Court being SLP (Civil) No. (CC 179/2011). The said SLP came to be dismissed by the Apex Court by order dated 18/2/2011. In view of the dismissal of the said SLP, the Award of the Reference Court dated 22/10/2007 has become final and binding. 5 It seems that the execution proceedings were filed by the Petitioner for executing the Award of the Reference Court. The said execution proceedings were number as 419 of 2009, in which execution proceedings, the Respondent No.3 deposited an amount of Rs.9,23,854/-which was the balance of the compensation remaining to be paid to the Petitioner. The said amount has been invested in a Fixed Deposit pursuant to the order passed by the Executing Court. 6 The Petitioner by the instant Application has sought withdrawal of the said amount in view of the fact that the SLP filed by the Respondent No.3 has been dismissed. The said Application, as indicated above, has been allowed and the Petitioner was allowed to withdraw the amount lying in deposit, albeit on a condition that he furnishes solvent surety. 7 Heard the learned counsel for the parties. The principal contention of the learned counsel for the Petitioner is that in view of the finality to the Award of the Reference Court dated 22/10/2007, which fact has also been accepted by the Executing Court, there was no warrant to direct the Petitioner to furnish solvent surety at the time of withdrawal of the said amount. The said contention of the learned counsel for the Petitioner is not seriously disputed by the learned AGP appearing for the Respondent Nos.1, 2 and 4 and the learned counsel appearing on behalf of the acquiring body i.e. the Respondent No.3. 8 In my view, in the light of the Award of the Reference Court dated 22/10/2007 becoming final in view of the dismissal of the SLP filed by the Respondent No.3 whereby the delay in filing the First Appeal in this Court has not been condoned, there was no warrant for the Executing Court to impose the condition that it has imposed by the impugned order viz. the Petitioner to furnish solvent surety at the time of withdrawal of the said amount. the Petitioner to furnish solvent surety at the time of withdrawal of the said amount. The Executing Court misdirected itself by observing that the said solvent surety is required to be furnished by the Petitioner to secure the repayment if circumstances warranted. The facts as disclose do not make out a case for there being any dispute as regards the Petitioner’s entitlement to the said amount, the learned counsel for the Respondents also finally accepts the said position. In my view, therefore the impugned order to the extent that it directs the Petitioner to furnish solvent surety for being permitted to withdraw the said amount of Rs.9,50,000/-is required to be quashed and set aside, and is accordingly quashed and set aside. The Petitioner would be entitled to withdraw the said amount unconditionally. Rule is accordingly made absolute to the aforesaid extent with the parties to bear their respective costs.