9911796707
TMI Blog2008 (5) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 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 therefore 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the High Court of Gujarat inter alia contending that the purported final allotment of plot No. 165 in favour of 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: 18. It appears that in the said decision, the Apex Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter, 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. (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 Ors. v. Ahmedabad Municipal Corporation and Ors. AIR1992SC752 and Jaswantsingh Mathurasingh and Anr. v. Ahmedabad Municipal Corporation and Ors. 1992 Supp (1) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, Sub-section (3) of Section 65, Sections 67 and 68 of the Act read as under: - 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. - 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. - 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. 13. Rules 26(1), 26(3) and 33 of the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian 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 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) mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 Ors. ] In West Bengal Housing Board etc. v. Brijendra Prasad Gupta and Ors., 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Ors. v. M.G. Makwana and 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 and Ors. v. State of Gujarat and Anr. AIR 2008 SC 1771 ] 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1957] 1 SCR 575 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 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 ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. [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)IIILLJ555SC , though the principle was stated far more precisely, in the following terms: 9. The principle of waiver although is akin to the principle of esto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 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. 38. For the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
