Babulal Badriprasad Varma Vs.
Corpn. & Ors.  INSC 783 (2 May 2008)
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
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
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 4 allotted 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
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
"8. On the facts and
circumstances mentioned herein above, the Petitioner prays to your Lordships
(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,
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
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
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
(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
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
(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
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
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.
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
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
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.
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."
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
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
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
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.
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
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
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.
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
[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.
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 26 about 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 27 caveat. 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 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
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
"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
"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
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 30 point 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.
[V.S. Sirpurkar] New Delhi;