REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3203 OF 2008
[Arising out of SLP (Civil) No. 568 of 2007]
Babulal Badriprasad Varma ...Appellant
Versus
Surat Municipal Corporation & Ors. ...Respondents
JUDGMENT
S.B. SINHA, J :
1. Leave granted.
2. Interpretation and/ or application of the provisions of the Gujarat
Town Planning and Urban Development Act, 1976 (for short “the Act”) and
the Rules framed thereunder known as the Gujarat Town Planning and
Urban Development Rules, 1979 (for short “the Rules”) is in question in
this appeal which arises out of a judgment and order dated 27.12.2006
passed by a Division Bench of the High Court of Gujarat at Ahmedabad in
2
Letters Patent Appeal No. 1611 of 2006 arising out of a judgment and order
dated 23.11.2006 passed by a learned Single Judge of the said Court in SCA
No. 7092 of 2001.
3. Before embarking upon the issue involved in this appeal, we may
notice the admitted fact of the matter.
The Government of Gujarat in exercise of its power conferred upon it
under Section 65 of the Act made a scheme in respect of the town of Umra,
Surat on 1.06.1999.
Plot Nos. 17/7 and 17/8 were owned by Respondent No. 4 herein.
Appellant was a tenant under the said respondent in respect of Plot No. 17/8
admeasuring 1067 sq.m. He used to run a business of marble and stone
therein. A road widening project was proposed in terms of the said scheme.
Notices therefor were issued both to the appellant as also the respondent no.
4. Appellant objected thereto. He, however, did not pursue his case in
regard to the proposal for widening of the road.
3
For the said public purpose, viz., widening of the road, 867 sq. m. of
land was taken over leaving only 200 sq. m. of land. With a view to give
effect to the provisions of the Act and the Rules framed thereunder,
proceedings were initiated for allotment of the said land in terms of the Act.
20% of the land was taken over without payment of any compensation. In
respect of the proceedings initiated for the purpose of re-allotment of the
land, despite a public notice, the appellant did not file any objection. He did
not take any part in the proceedings therefor. Respondent No. 4 was
allotted a final plot bearing No. 157 and the said 200 sq. m. of land of plot
No. 17/8 has merged in final plot No. 165 owned by the respondent No. 3.
The Scheme was notified in the year 1999. Respondent No. 1 herein
which is the statutory agency in terms of the Act for the purpose of
implementation of the Scheme issued a notice under Section 67 of the Act
upon the respondent no. 4 on or about 15.01.2000. As he did not respond
thereto, a notice under Section 68 of the Act was served on him on
31.03.2000 stating:
“As per the said approved preliminary scheme the
plot No. 157 is allotted to you. And, its pole
demarcations were done by the town planning
officer at site. The said Final Plot/ Original Plot is
4allotted in lieu of your No. 17/7, 17/8 paiki land.
And, the said land is now vested in the Municipal
Corporation from 1.7.1999, and is of the
ownership of the Municipal Corporation.
Thereafter the notice below section 67 for the
change in occupation was issued on 15.1.2000 to
you. In spite of this you have not handed over the
possession. Therefore, as per the Gujarat Town
Planning and Urban Development Rules, 1979
rule 33 the undersigned in exercise of powers
conferred below section 68(1) and 8(2) of the
Bombay Provincial Municipalities Act and below
the section 68 notice under the Gujarat Town
Planning and Urban Development Act this is to
inform you that as shown in the sketch on the
reverse the premises marked should be vacated
within 7 days from receipt of the notice and had
over the possession to the Surat Municipal
Corporation. If you fail to do so then on
completion of the stipulated time limit as per the
Rule 33 of the Gujarat Town Planning and Urban
Development Rules, 1979 the said land and the
occupation on the same will be summarily evicted
and your occupation will be removed and if you
obstruct/ interfere on it after taking away the
possession you trespass then as provided under
Rule 33 of the Gujarat Town Planning and Urban
Development Rules, 1979 the action as per the
section 188 of the Indian Penal Code will be
initiated against you before the Criminal Court,
pleased take note of the same.”
5. The validity and/ or legality of the said notice was questioned by the
appellant by filing a writ petition in the High Court of Gujarat inter alia
contending that the purported final allotment of plot No. 165 in favour of
5
the respondent no. 3 and allotment of final plot No. 157 in favour of the
respondent no. 4 were made without issuing any notice as envisaged under
Sections 52 and 53 of the Act.
In the said writ petition, it was prayed:
“8. On the facts and circumstances mentioned
herein above, the Petitioner prays to your
Lordships that:
(A) Be pleased to issue writ of Mandamus or
writ in the nature of Mandamus or appropriate
writ, order or direction, quashing and setting
aside the impugned action of acquiring and
demolishing the structures available on the land
in question, i.e., Original Plot No. 17/A – R.S.
No. 17/P, situated at Umra, Surat.”
6. A learned Single Judge of the High Court dismissed the said writ
petition inter alia opining that the interest of landlord and tenant being
common and in absence of any inter se dispute between them even if any
portion of the land which remained in possession of the tenant was included
in the Scheme, the proper remedy would be to claim compensation to that
extent, holding:
6
“18. It appears that in the said decision, the Apex
Court while considering the scheme on the touch-
stone of the mandatory procedure to be followed
by the authority under the Bombay Town Planning
Rules, has given directions to provide alternative
accommodation based on the earlier decision in
case of Jaswantsingh Mathurasingh and upheld the
scheme. Such is not the issue in the present case
nor there is any complaint by the tenant that any
special notice was not served or that the
mandatory procedure for finalization of the
scheme is not followed. Further, it appears that if
the interest of the landlord and of the tenant is
common and in absence of any inter se dispute
between the landlord and tenant, even if any
portion of the land which is in possession of the
tenant is included in the scheme, the proper
remedy for the tenant would be to claim for
compensation to that extent and if such
compensation is not received by him, he may
resort to proper remedy available for recovery of
the compensation to the extent of the area in his
occupation. At least on ground that the tenant is
in occupation, it would not be a case for
interference with the scheme which is sanctioned
and made a part of the statute. Suffice it to say
that the tenant will be at liberty to resort to
appropriate proceedings against the landlord for
the inter se rights and also for entitlement of the
compensation. But if the area of original plot no.
17/8 is included in the final scheme and in
exchange of the original plot held by Keshav
Gramini of 17/8 and 17/7, the final plot is already
allotted and as observed earlier it was even
otherwise in the ownership of the original holder
and it is only on account of inter se dispute the
other persons are lawfully occupying the land, the
tenant cannot insist that his landlord must be
allotted the land of final plot no. 157
simultaneously, when he is to be evicted or
7
deprived of the portion of the land of original plot
no. 17/8. Therefore, in my view considering the
peculiar facts and circumstances of the present
case, the decision of the Apex Court in case of
Mansukhlal (supra) cannot be made applicable to
the present case.”
7. A Division Bench of the High Court dismissed an intra-court appeal
preferred thereagainst.
8. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the
appellant, in support of this appeal, inter alia would submit:
(i) The provisions of Sections 52 and 81 being imperative in
character, no acquisition of land is permissible without service of
any notice upon the persons interested which would include a
tenant in occupation and carrying on business thereon.
(ii) A tenant having regard to the provisions of the Transfer of
Property Act or otherwise having an interest in the property cannot
be deprived therefrom without following the procedure established
by law and without initiation of any proceedings for acquisition of
land.
8
(iii) The tenant’s interest being distinct and separate could not have
been held to be merged with the interest of the landlord, either for
the purpose of allotment of a final plot or otherwise in favour of
the landlord.
(iv) Appellant having a right over the remaining 200 sq. m. of the land
of original plot No. 17/8 should be allowed to continue thereupon
and final allotment made in favour of the respondent no. 3 to that
extent should be cancelled.
Mr. Lalit in support of his contention strongly relied upon a decision
of this Court in Mansukhlal Jadavji Darji and Others v. Ahmedabad
Municipal Corporation and Others [(1992) 1 SCC 384] and Jaswantsingh
Mathurasingh and Another v. Ahmedabad Municipal Corporation and
Others [1992 Supp (1) SCC 5].
9. Mr. Prashant G. Desai, learned counsel appearing on behalf of the
respondent no. 1, on the other hand, would submit:
(i) Public notices having been issued in terms of the Rule 26 of the
Rules, an objection which would nullify the Scheme cannot be
entertained at this stage.
9
(ii) Respondent No. 1 Corporation merely being interested in the
implementation of the Scheme is entitled to obtain vacant
possession from him so as to enable it to deliver it to the
respondent No. 3 in whose favour plot No. 165 has been finally
allotted.
(iii) The Scheme in terms of Sub-section (3) of Section 65 of the Act
having become a part of the Act, validity thereof cannot be
questioned at this stage as modification of the Scheme, if any, will
have to undergo the entire process once over again which is not
contemplated under the Act.
10. The Act was enacted to consolidate and amend the law relating to the
making and execution of development plans and town planning schemes in
the State of Gujarat.
11. It is not necessary for us to delve deep into the statutory scheme.
Suffice it to say that Chapter IV of the Act deals with control of
development and use of land included in the development plans. Chapter V
of the Act provides for town planning schemes.
10
Section 40 of the Act empowers the appropriate authority to make one
or more schemes. A declaration of intention to make a scheme is to be
notified whereafter a draft scheme may be published. Section 45 provides
for reconstitution of the plots, sub-section (2) whereof inter alia enables
allotment of a final plot from an original plot by transfer of any adjoining
lands. Section 52 contemplates issuance of a notice in a prescribed manner
and in the prescribed form.
12. Section 52 of the Act provides for the contents of preliminary and
final scheme. It inter alia provides for giving of a notice by the Town
Planning Officer as follows:
“(1) In a preliminary scheme, the Town Planning
Officer shall,-
(i) after giving notice in the prescribed manner and
in the prescribed form to the persons affected by
the scheme, define and demarcate the areas
allotted to, or reserved for, any public purpose, or
for a purpose of the appropriate authority and the
final plots;
(ii) after giving notice as aforesaid, determine in a
case in which a final plot is to be allotted to
persons in ownership in common, the shares of
such persons;”
11
Further, Sub-section (3) of Section 65, Sections 67 and 68 of the Act
read as under:
“65 – Power of Government to sanction or refuse
to sanction the scheme and effect of sanction –
(3) On and After the date fixed in such
notification, the preliminary scheme or the final
scheme, as the case may be, shall have effect as if
it were enacted in this Act.
67 – Effect of preliminary scheme
On the day on which the preliminary scheme
comes into force-
(a) all lands required by the appropriate authority
shall, unless it is otherwise determined in such
scheme, vest absolutely in the appropriate
authority free from all encumbrances;
(b) all rights in the original plots which have been
re-constituted into final plots shall determine and
the final plots shall become subject to the rights
settled by the Town Planning Officer.
68 – Power of appropriate authority to evict
summarily
On and after the date on which a preliminary
scheme comes into force, any person continuing to
occupy any land which he is not entitled to occupy
under the preliminary scheme shall, in accordance
with the prescribed procedure, be summarily
evicted by the appropriate authority.”
12
13. Rules 26(1), 26(3) and 33 of the Rules read as under:
“26. Procedure to be followed by Town Planning
Officer under section 51 and under sub-section
(1) of section 52 – (1) For the purpose of
preparing the preliminary scheme and final
scheme the Town Planning Officer shall give
notice in Form H of the date on which he will
commence his duties and shall state the time, as
provided in Rule 37 within which the owner of
any property or right which is injuriously
affected by the making of a Town Planning
Scheme shall be entitled under section 82 to
make a claim before him. Such notice shall be
published in the Official Gazette and in one or
more Gujarati newspapers circulated within the
area of the appropriate authority and shall be
pasted in prominent places at or near the areas
comprised in the scheme and at the office of the
Town Planning Officer.
(3) The Town Planning Officer shall, before
proceeding to deal with the matters specified in
section 52, publish a notice in Form H in the
Official Gazette and in one or more Gujarati
newspapers circulating within the area of the
appropriate authority. Such notice shall specify
the matters which are proposed to be decided by
the Town Planning Officer and State that all
persons who are interested in the plots or are
affected by any of the matters specified in the
notice shall communicate in writing their
objections to the Town Planning Officer within a
period of twenty days from the publication of
notice in the Official Gazette. Such notice shall
also be posted at the officer of the Town
Planning Officer and of the appropriate authority
and the substance of such notice shall be pasted
at convenient places in the said locality.
13
33. Procedure for eviction under Section 68. –
(1) For eviction under section 68, the appropriate
authority shall follow the following procedure,
viz.:
(a) The appropriate authority shall in the first
instance serve a notice upon a person to be
evicted requiring him, within such reasonable
time as may be specified in the notice, to vacate
the land.
(b) If the person to be evicted fails to comply
with the requirement of the notice, the
appropriate authority shall depute any Officer or
Servant to remove him.
(c) If the person to be evicted resists or
obstructs the officer or Servant deputed under
clause (b) or if he re-occupies the land after
eviction, the appropriate authority shall
prosecute him under section 188 of the Indian
Penal Code.”
14. Before embarking upon the rival contentions, we may also notice that
the provisions of the Bombay Town Planning Rules, 1955 (for short “the
Bombay Rules”) are in pari materia with `the Rules’.
Rule 21 of the Bombay Rules provides for the Procedure to be
followed by the Town Planning Officer. It makes it obligatory on the part
of the officer to give notice of the date on which he will commence his
duties and shall state therein the time, within which the owner of any
property or rights which is injuriously affected by the making of the town
14
planning scheme shall be advertised in one or more newspapers published in
the regional language and circulating within the jurisdiction of the local
authority and shall be posted in prominent places at or near the area
comprised in the scheme and at the office of the Town Planning Officer.
Sub-Rule (3) of Rule 21 of the Bombay Rules provides for serving of a
Special notice of at least three clear days’ upon the person interested in any
plot or in any particular area comprised in the scheme, before the Town
Planning Officer proceeds to deal in detail with the portion of the scheme
relating thereto. Sub-Rule (4) makes it imperative upon the Town Planning
Officer to “give all persons affected by any particular (sic) of the scheme
sufficient opportunity of stating their views and shall not give any decision
till he has duly considered their representations, if any”. Sub-Rule (5)
provides for recording a brief minute setting out the points at issue and the
necessary particulars if during the proceedings, it appears to the Town
Planning Officer that there are conflicting claims or any difference of
opinion with regard to any part of the scheme.
15. Rules 26 of the Rules do not contemplate service of individual notice.
It prescribes service of notice in Form H. A copy of the notice in the said
Form is kept at the office of the Town Planning Officer during office hours.
Any person affected by the proposal of the Town Planning Scheme is
15
entitled to inspect the Scheme in the office where arrangements for
explaining the scheme proposals are made. It furthermore provides that any
person entitled to claim damages in terms of Section 82 of the Act should
communicate the details of his claim to the Town Planning Officer. Section
81 of the Act enables the State to transfer of right from original to final plot
or extinction of such right.
A Town Planning Scheme, therefore, envisages calling for objection
from the persons concerned for three purposes:
(i) in regard to draft scheme;
(ii) lodging of any claim for payment of compensation;
(iii) participation in the matter of allotment of final plots.
16. We may, however, notice that Rule 21 of the Bombay Rules provides
for notice under Sub-rule (3) thereof and a reasonable opportunity of
hearing under Sub-Rule (5) thereof. Sub-rule (3) of Rule 21 of the Bombay
Rules provides for issuance of a special notice upon the person interested in
any plot or in any particular plot comprised in the Scheme.
16
17. We may also take notice of the decision of this Court in Mansukhlal
Jadavji Darji (supra) wherein this Court opined that Sub-rule (3) of Rule 21
of the Bombay Rules was mandatory in nature, subject, of course, to the
condition that on the crucial date, viz., when the Town Planning Scheme is
notified in the official gazette, he, whether an owner or tenant or sub-tenant,
must be in possession of the property.
18. In Jaswantsingh Mathurasingh (supra), it was reiterated that a tenant
or a sub-tenant is a person interested and is entitled to notice. In that
context, it was held:
“8. The question is whether the tenant or a sub-
tenant is a person interested and is entitled to
notice. It is obvious that under Section 105 of
Transfer of Property Act, a lease creates right or
an interest in enjoyment of the demised property
and a tenant or a sub-tenant is entitled to remain
in possession of the demised property until the
lease is duly terminated and eviction takes place
in accordance with law. Therefore, a tenant or a
sub-tenant in possession of a tenement in the
Town Planning Scheme is a person interested
within the meaning of Rules 21(3) and (4) of the
Rules. But he must be in possession of the
property on the crucial date i.e. when the Town
Planning Scheme is notified in the official
Gazette. Every owner or tenant or a sub-tenant,
in possession on that date alone shall be entitled
to a notice and opportunity.”
17
19. Rule 21(3), however, of the Bombay Rules has been amended in tune
with Rule 26 of the Rules. Amended rules are in pari materia with Rule 26
of the Rules.
20. Appellant was a tenant in respect of plot No. 17/8. Plot No. 17/7 was
not a plot contiguous thereto. They were separated not only by a road but
also by various other plots.
21. It is also not in dispute that the appellant filed an objection in regard
to the draft scheme but did not eventually pursue the same. The draft
scheme was approved. 867 sq. m. of land had been acquired for public
purpose out of the said plot No. 17/8. While the proceedings relating to
allotment of final plot were in progress, he even did not file any objection
thereto. If he intended to claim any interest in a portion of plot No. 17/8
either for the purpose of obtaining compensation for acquisition of a part of
the land or to continue to have possession over 200 sq. m. of land in plot
No. 17/8, it was obligatory on his part to take part in the proceedings.
Whether irrespective of Rule 26 of the Rules which prescribes for issuance
of a general public notice, any special notice upon the appellant was
required to be served by the State or by the authority, in our opinion, cannot
18
be gone into by us in these proceedings for the first time. Validity of Rule
26 of the Rules had never been questioned. It had also not been contended
that the said Rule is ultra vires Section 52 of the Act.
22. A person interested in continuing to keep possession over a property
and/ or a part of the amount of compensation must lay his claim before the
appropriate authority at the appropriate stage. If in absence of any such
claim filed by the appellant, the authorities have proceeded to finalise
allotment of final plot in favour of the respondent Nos. 3 and 4 herein, it is
too late in the day to contend that the entire scheme should be re-opened.
We would consider the effect of Sub-section (3) of Section 65 of the
Act a little later, but, we may at this juncture notice that the respondent No.
3 in whose favour plot No. 165 has been allotted which includes 200 sq. m.
of land purported to be in possession of the appellant had nothing to do with
the dispute between the appellant and his landlord the respondent no. 4.
Respondent No. 4 was in possession of a contiguous plot. Respondent No.
4 was owner of both plot Nos. 17/7 and 17/8. He was, therefore, in his own
right entitled to final allotment of some plot.
19
23. We would, however, assume that it was obligatory on the part of the
State to serve a special notice upon the appellant. The question, however,
would be : what would be the consequence of non-compliance thereof vis-`-
vis the conduct of the appellant himself?
24. A person may waive a right either expressly or by necessary
implication. He may in a given case disentitle himself from obtaining an
equitable relief particularly when he allows a thing to come to an
irreversible situation.
25. Different statutes provide for different manner of service of notice.
The Bangalore Development Authority Act, 1976 provides that every
person whose name appears in the assessment list or land revenue records
shall be served with notice. [See Sureshchandra C. Mehta v. State of
Karnataka and Others 1994 Supp (2) SCC 511]
In West Bengal Housing Board etc. v. Brijendra Prasad Gupta and
Others, etc. [AIR 1997 SC 2745], it was opined that the authority is not
required to make a roaming enquiry as to who is the person entitled to
notice.
20
26. We have referred to the said decisions only to show that the
requirements in regard to the manner of service of notice varies from statute
to statute and there exists a difference between the Bombay Rules and the
Rules.
27. We are, however, not unmindful of the fact that a statute of town
planning ex facie is not a statute for acquisition of a property. An owner of
a plot is asked to part therewith only for providing for better facilities of
which he would also be a beneficiary. Every step taken by the State does
not involve application of the doctrine of eminent domain.
In this case, the appellant did not oppose the draft scheme. It
accepted that the State had a right to do so. Existence of a public purpose
and increase in the valuation of the property was admitted. There exists a
distinction in the action of the planning authority as regards vesting of a
property in it and one so as to enable it to create a third party interest vis-`-
vis for the purpose of re-allotment thereof. In the former case, the vesting
of the land may be held to be an act of acquisition, whereas in the latter, it
would be distribution of certain benefits having regard to the purpose
sought to be achieved by a statute involving town planning. It was on that
21
legal principle, this Court in State of Gujarat v. Shantilal Mangaldas &
Ors. [1969 (3) SCR 341], opined that when a development is made, the
owner of the property gets much more than what would have he got, if the
same remained undeveloped in the process as by reason thereof he gets the
benefit of living in a developed town having good town planning.
28. Section 67 of the Act provides that all lands required by the
appropriate authority shall, unless it is otherwise determined in such
scheme, vest absolutely in the appropriate authority free from all
encumbrances with effect from the date on which the preliminary scheme
comes into force. What would be the quantum of payment of compensation
therefor is also provided in Section 82 of the Act. It is in the
aforementioned situation, a claim is to be made before the authority
whenever a notice in Form H is published. If a claim is not filed, the
person, who is said to be injuriously affected, does so at its own peril. Had
such a claim been filed, the authority before making final allotment could
have considered the competing claims wherefor a large number of factors
were required to be taken into consideration, viz., the location of the land,
the area of the land, the nature of right, etc.
22
29. When a statute makes an elaborate provision as regards the
formalities required to be undergone at every stage by the local authority,
the State Government and other authorities concerned in preparing and
making the final Town Planning Scheme, the same should be considered to
be exhaustively. [See Maneklal Chhotalal & Ors. v. M.G. Makwana & Ors.
[(1967) 3 SCR 65]
In Maneklal Chhotalal (supra), it was held:
“49. Therefore, having due regard to the
substantive and procedural aspects, we are
satisfied that the Act imposes only reasonable
restrictions, in which case, it is saved under
Article 19(5) of the Constitution. The
considerations referred to above will also show
that the grievance of the petitioners that Article 14
is violated, is also not acceptable.”
[See also Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat &
Anr. 2008 (4) SCALE 278]
30. We are, however, not oblivious that in a given situation, a question
may also arise as to whether the restrictions imposed by a statute are
reasonable or not.
23
31. It is not a case where the State by its acts of omissions and
commissions was unjustly enriching itself. It was a dispute between two
private parties as regards the right to obtain final allotment; the principles
underlying the same are not in dispute. What is in dispute is the distribution
of quantum thereof between two competing claimants, viz., landlord and
tenant. We do not mean to say that under no circumstances the appellant
was entitled to allotment of a portion of the property or mandatory
compensation in lieu thereof from the landlord. But, we intend to
emphasise that he has lost his right to enforce the same in a public law
forum. He has no enforceable claim against the State at this juncture. He
may pursue his claim only against the respondent No. 4 in an appropriate
proceedings wherein for certain purposes the State or the authorities may
also be impleaded as a party. Even if he had a claim he would be deemed to
have waived the same for the reasons stated hereinafter.
32. It is not in dispute that:
(a) Appellant although filed an objection with regard to the draft
scheme, did not choose to pursue it.
24
(b) He did not file objections for re-allotment and did not participate
in the proceedings following acquisition instituted by the
authorities under the Act.
In view of the above, the issue is whether it was open to him to assert
his purported right to special notice in respect of the final allotment in the
instant case given the fact that he did not pursue his objections to the draft
scheme and subsequently did not object/participate during the proceedings
for re-allotment.
33. It has been noticed by us hereinbefore that under Rule 26 of the Rules
applicable in the instant case, as distinguished from the Bombay Rules
(wherein special notice is required), no special notice is mandatorily
required to be served. Assuming, however, that it was obligatory for the
State to issue notice to the appellant, the question is whether the principle of
waiver precludes him from claiming equitable relief in this case due to his
earlier conduct which allowed the entire process of acquisition and
allotment to become final. We are of the opinion that even if he had any
such right, he waived the same.
25
In Halsbury’s Laws of England, Volume 16(2), 4th edition, para 907,
it is stated:
“The expression `waiver’ may, in law, bear
different meanings. The primary meaning has been
said to be the abandonment of a right in such a
way that the other party is entitled to plead the
abandonment by way of confession and avoidance
if the right is thereafter asserted, and is either
express or implied from conduct. It may arise from
a party making an election, for example whether or
not to exercise a contractual right… Waiver may
also be by virtue of equitable or promissory
estoppel; unlike waiver arising from an election,
no question arises of any particular knowledge on
the part of the person making the representation,
and the estoppel may be suspensory only… Where
the waiver is not express, it may be implied from
conduct which is inconsistent with the continuance
of the right, without the need for writing or for
consideration moving from, or detriment to, the
party who benefits by the waiver, but mere acts of
indulgence will not amount to waiver; nor may a
party benefit from the waiver unless he has altered
his position in reliance on it”
As early as 1957, the concept of waiver was articulated in a case
involving the late assertion of a claim regarding improper constitution of a
Tribunal in Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] in the
following terms:
“It is true that waiver cannot always and in every
case be inferred merely from the failure of the
party to take the objection. Waiver can be inferred
only if and after it is shown that the party knew
26about the relevant facts and was aware of his right
to take the objection. As Sir Johan Romilly M. R.
has observed in Vyvyan v. Vyvyan [(1861) 30
Beav. 65, 74; 54 E.R. 813, 817] “waiver or
acquiescence, like election, presupposes that the
person to be bound is fully cognizant of his
rights, and, that being so, he neglects to enforce
them, or chooses one benefit instead of another,
either, but not both, of which he might claim”.
In The Director of Inspection of Income Tax (Investigation), New
Delhi and Another v. Pooran Mal & Sons and Another [(1975) 4 SCC 568]
the issue was regarding waiver of benefits under a statute of limitation. It
was stated:
“13. We may in this connection refer to the
decision in Wilson v. McIntosh. In that case an
applicant to bring lands under the Real Property
Act filed his case in court under Section 21, more
than three months after a caveat had been lodged,
and thereafter obtained an order that the caveator
should file her case, which she accordingly did. It
was held that he had thereby waived his right to
have the caveat set aside as lapsed under Section
23. The Privy Council held that the limitation of
time contained in Section 23 was introduced for
the benefit of the applicant, to enable him to
obtain a speedy determination of his right to have
the land brought under the provisions of the Act
and that it was competent for the applicant to
waive the limit of the three months, and that he did
waive it by stating a case and applying for and
obtaining an order upon the appellant to state her
case both, which steps assumed and proceeded on
the assumption of the continued existence of the
27caveat. They referred with approval to the decision
in Phillips v. Martin where the Chief Justice said:
“Here there is abundant evidence of waiver, and it
is quite clear that a man may by his conduct waive
a provision of an Act of Parliament intended for
his benefit. The caveator was not brought into
Court in any way until the caveat had lapsed. And
now the applicant, after all these proceedings have
been taken by him, after doubtless much expense
has been incurred on the part of the caveator, and
after lying by and hoping to get a judgment of the
Court in his favour, asks the Court to do that
which but for some reasons known to himself he
might have asked the Court to do before any other
step in the proceedings had been taken. I think he
is altogether too late. It is to my mind a clear
principle of equity, and I have no doubt there are
abundant authorities on the point, that equity will
interfere to prevent the machinery of an Act of
Parliament being used by a person to defeat
equities which he has himself raised, and to get rid
of a waiver created by his own acts.”
The legal principle emerging from these decisions is also stated in
Craies on Statute Law (6th Edn.) at page 369 as follows:
“As a general rule, the conditions imposed by
statutes which authorise legal proceedings are
treated as being indispensable to giving the court
jurisdiction. But if it appears that the statutory
conditions were inserted by the legislature simply
for the security or benefit of the parties to the
action themselves, and that no public interests are
involved, such conditions will not be considered
as indispensable, and either party may waive them
without affecting the jurisdiction of the court.”
28
[emphasis supplied]
Applying the above principles to the present case, it must be held that
the benefit of notice provided under the Act and Rules being for the benefit
of the Appellant in which no public interests are involved, he has waived
the same.
34. Significantly, a similar conclusion was reached in the case of Krishna
Bahadur v. Purna Theatre [(2004) 8 SCC 229], though the principle was
stated far more precisely, in the following terms:
“9. The principle of waiver although is akin to the
principle of estoppel; the difference between the
two, however, is that whereas estoppel is not a
cause of action; it is a rule of evidence; waiver is
contractual and may constitute a cause of action; it
is an agreement between the parties and a party
fully knowing of its rights has agreed not to assert
a right for a consideration.
10. A right can be waived by the party for whose
benefit certain requirements or conditions had
been provided for by a statute subject to the
condition that no public interest is involved
therein. Whenever waiver is pleaded it is for the
party pleading the same to show that an agreement
waiving the right in consideration of some
compromise came into being. Statutory right,
however, may also be waived by his conduct.”
[Emphasis supplied]
29[See also Bank of India v. O.P. Swarnakar (2003) 2 SCC 721]
35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and
Ors. [2006 (8) SCALE 631], this Court observed:
“The matter may be considered from another
angle. If the first respondent has expressly waived
his right on the trade mark registered in the name
of the appellant-Company, could he claim the said
right indirectly? The answer to the said question
must be rendered in the negative. It is well-settled
that what cannot be done directly cannot be done
indirectly. The term ‘Waiver’ has been described in
the following words: “Waiver is the abandonment
of a right in such a way that the other party is
entitled to plead the abandonment by way of
confession and avoidance if the right is thereafter
asserted, and is either express or implied from
conduct. A person who is entitled to rely on a
stipulation, existing for his benefit alone, in a
contract or of a statutory provision may waive it,
and allow the contract or transaction to proceed as
though the stipulation or provision did not exist.
Waiver of this kind depends upon consent, and the
fact that the other party has acted upon it is
sufficient consideration It seems that, in general,
where one party has, by his words or conduct,
made to the other a promise or assurance which
was intended to affect the legal relations between
them and to be acted on accordingly, then, once
the other party has taken him at his word and acted
on it, so as to alter his position, the party who gave
the promise or assurance cannot afterwards be
allowed to revert to the previous legal relationship
as if no such promise or assurance had been made
by him, but he must accept their legal relations
subject to the qualification which he has himself
so introduced, even though it is not supported in
30point of law by any consideration. [See 16
Halsbury’s Laws (4th edn) para 1471] “
In this view of the matter, it may safely be stated that the appellant,
through his conduct, has waived his right to an equitable remedy in the
instant case. Such conduct precludes and operates as estoppel against him
with respect to asserting a right over a portion of the acquired land in a
situation where the scheme in question has attained finality following as a
result of the appellant’s inaction.
36. Mr. Lalit submits that his client is ready and willing to pay some
reasonable amount to the respondent No. 3 in whose favour plot No. 165
has been finally allotted. Issuance of any such direction, in our opinion, is
legally impermissible.
37. We, therefore, are of the opinion that in this case, no relief can be
granted to the appellant. He may, however, take recourse to such remedy
which is available with him in law including one by filing a suit or making a
representation before the State.
31
38. For the reasons aforementioned, the appeal is dismissed. No costs.
………………………….J.
[S.B. Sinha]
…………………………..J.
[V.S. Sirpurkar]
New Delhi;
May 02, 2008