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TMI Blog2008 (5) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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; Further, 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with effect from the date on which the preliminary scheme comes into force. What would be the quantum of payment of compensation therefore 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 wherefore 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uished 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. 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 knowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 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 take ..... 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