1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 5484 OF 2008. Sau. Sakubai Vitthal Parate of Nagpur. ... PETITIONER VERSUS State of Maharashtra and two others. ... RESPONDENTS .... Shri S.M. Pande, Advocate for the petitioner. Smt. R.A. Wasnik, Assistant Government Pleader for the respondent Nos.1 and 2. Shri N.A. Vyawahare, Advocate for the respondent No.3. .... CORAM : PRASANNA B.VARALE, J. DATE OF RESERVING THE ORDER : 08TH APRIL, 2009. DATE OF PRONOUNCING THE ORDER : 27TH APRIL, 2009. ORDER: Heard the learned Counsel appearing on behalf of the respective parties. 2. By the present petition, the petitioner is challenging 2 the order dated 11.12.2008 passed by Civil Judge, Senior Division, Nagpur in unregistered civil suit filed by the petitioner. The prayers made by the petitioner are as under :- (a) Issue appropriate writ or direction for setting aside the Order dated 11/12/2008 passed by Civil Judge, Senior Division, Nagpur in unregistered Civil Suit filed by the petitioner; (b) grant interim stay to the disbursement of compensation amount in respect of agricultural field bearing No. 206/1/B Khata No.264 belonging to petitioner’s husband Shri Vitthal Parate admeasuring about 0.41 H.R., and another land bearing Kh.No. 206/2, Khata No.264, admeasuring about 1.62 H.R. Mouza Dhamangaon, Tah. Mouda, District Nagpur. 3. The petitioner is a wife of one Vitthal Sadhu Parate who is aged about 80 years and the petitioner is of 70 years age. The husband of the petitioner is having certain properties including one landed property at Mouza Dhamangaon, Tah. Mouda, District Nagpur and one house property situated at 3 Nagpur. 4. It is contended by the petitioner that a news item was published in daily newspaper on 17.09.2008 by which the petitioner got knowledge that the agricultural land of the husband of the petitioner is being acquired for the purposes of certain project and the compensation is being paid to the husband of the petitioner. It is further the contention of the petitioner that the husband of the petitioner has performed two illegal marriages. It is further contention of the petitioner that the husband of the petitioner is presently residing with his wife namely Jeejabai and is under influence of Jeejabai. The petitioner further submitted that there is no any other source of income to the husband of the petitioner except the income arrived at from the agricultural land. The petitioner apprehended that the husband of the petitioner, under influence of Jeejabai, may disburse the amount of compensation to Jeejabai and her issue and the petitioner may face financial difficulties to lead her life. The petitioner further submits that an objection was raised by the petitioner along 4 with other persons to the respondent No.2 and a request was made to the authority i.e. the respondent No.2. The respondent No.2, by communication dated 26.11.2008, informed the petitioner that the petitioner may submit stay order from the competent Court to the office of respondent No. 2 within a period of 15 days. A copy of the said communication is annexed to the petitioner at “Annexure-A”. The petitioner filed the Special Civil Suit before the learned Civil Judge Senior Division, Nagpur for declaration, permanent and mandatory injunction. In the said suit, the reliefs were claimed as follows :- (a) declare that plaintiff’s right to receive maintenance from defendant No.1 is a charge on the land mentioned in this suit to the extent of Rs. 10,00,000/- and plaintiff is entitled to receive suitable amount of compensation from defendant Nos.3 and 4; (b) grant mandatory injunction to defendant Nos.3 and 4 for properly apportioning the compensation amount proposed to be paid in 5 respect of aforementioned land in view of the charge created in terms of relief as may be granted by this court in this suit in terms of prayer clause (a); (c) permanently restrain defendants No.1 and 2 or anybody claiming through them from dispossessing plaintiff from portion of suit house. 5. The petitioner filed an application under Section 80 for grant of leave to institute the suit without service of mandatory notice to defendant Nos.3 and 4 i.e. Project Authority, National Thermal Power Corporation, Mouda Prakalpa and District Rehabilitation Officer, Nagpur; and State of Maharashtra, through Collector, Nagpur City, Collectorate Building, Civil Lines, Nagpur. By referring to the communication dated 26.11.2008, it was submitted by the petitioner in the said application that as there is urgency in the matter and as there is no time available with the petitioner to serve mandatory notice on defendant Nos.3 and 4, as such the petitioner be permitted to institute the suit without serving mandatory notice on defendant Nos.3 and 4. The learned Civil 6 Judge Senior Division, Nagpur, by an order dated 11.12.2008 observed that there is no merit in the application and the application came to be rejected. Being aggrieved by the said order passed by the learned Civil Judge, Senior Division, the petitioner approached this Court. 6. Affidavit-in-reply is filed by the respondents. It is submitted by the learned Counsel for the respondent No.3 that the allegation levelled by the petitioner that the respondent No.3 has married two other ladies, is false. It is further submitted that the suit filed by the petitioner itself is misconceived for the reason that the suit is filed with the prayer to declare that the plaintiff’s right to receive maintenance from the defendant No.1 is a charge on agricultural land mentioned in the suit to the extent of rupees ten lakhs in her favour and the plaintiff is entitled to receive suitable amount of compensation from the defendant Nos.3 and 4, but the petitioner has not filed any proceedings for maintenance. That the respondent No.3 also submits that the petitioner has not filed any proceedings under the provisions 7 of Land Acquisition Act. The amount of compensation which is to be awarded to the respondent No.3 is under the provisions of Land Acquisition Act which is a self contained Code and a detailed procedure is laid down under the Act. The learned Counsel for the respondent No.3 submits that there is no jurisdictional error in the impugned order and as such that there is no reason to entertain the petition. 7. An affidavit-in-reply is also filed by the respondent No.2. It is submitted by the learned AGP appearing on behalf of the respondent No.2 that the land of the husband of the petitioner is being acquired by the Maharashtra Industrial Development Corporation under the MIDC Act, 1961 for the Thermal Power Project vide notification dated 26.06.2008. The respondent No.2 exercising the powers under Section 35 of MIDC Act has referred about the entitlement and apportionment of the amount of compensation of the acquired land of the husband of the petitioner to the learned Civil Judge Senior Division. It is also submitted by the respondent No.2 that the respondent No.2 presently 8 withholding the payment of compensation and is ready to deposit the same with the competent Court. It is further submitted by the learned AGP that for any suit, application or dispute to be instituted against the respondent No.2 or the Collector or against the Corporation, notice under Section 80 of the Code of Civil Procedure is a condition precedent and no exemption can be granted for the same. The learned AGP further submits that there is no ground shown by the petitioner for seeking leave to institute the suit without serving the statutory notice. The learned Counsel for the respondents submits that till this date, the petitioner has not filed any proceedings for maintenance and as such the reason shown by the petitioner is not acceptable. 8. By giving anxious consideration to the submissions of the respective Counsel, I find that there is no jurisdictional error in the order passed by the learned Civil Judge Senior Division. It is also not in dispute that no proceedings were initiated by the petitioner for maintenance nor any attempt was made by the petitioner to send notice to the respondent 9 Nos.1 and 2. The petitioner also failed to show any urgency so as to seek leave from the Court to institute the suit without serving statutory notice under Section 80 of the Code of Civil Procedure. The learned Civil Judge Senior Division has rightly observed that the step taken by the petitioner is nothing but a futile exercise and attempt is made by the petitioner to stall the acquisition proceedings and disbursement of the compensation amount. There is no reason warranting any interference at the hands of this Court. 9. Interim order dated 26/12/2008 passed by this Court stands vacated. 10. In the result, the petition is dismissed with no order as to costs. JUDGE *rrg.