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

J U D G M E N T  

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

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.   

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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

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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  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

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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:

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“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

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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.

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(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.

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(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.   

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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;”  

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 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.”

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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.

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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

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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

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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.

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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.”  

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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

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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.   

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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-à-

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.

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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-à-

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

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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.   

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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.

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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.

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(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.

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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

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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

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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 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.”

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[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]

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[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

29

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.

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38. For the reasons aforementioned, the appeal is dismissed.  No costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [V.S. Sirpurkar]

New Delhi; May 02, 2008   

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