Supreme Court of India
BABULAL BADRIPRASAD VARMAversusSURAT MUNICIPAL CORPORATION & ORS.
- Citation
- 2008 INSC 574
- Decided
- 2 May 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The tenant’s inaction amounted to a waiver of his rights, no individual special notice was required under Rule 26, and therefore the appellant has no claim against the State; the appeal is dismissed.
Summary
The appellant, a tenant of a plot acquired for a road‑widening scheme, challenged the final allotment of re‑allotted plots on the ground that he had not been served a special notice as required by Sections 52 and 53 of the Gujarat Town Planning and Urban Development Act. The Court held that Rule 26 of the Gujarat Town Planning Rules only mandates a general public notice in Form H and does not require individual notice. The appellant had objected to the draft scheme but failed to pursue any claim for compensation or to object to the re‑allotment, thereby waiving his rights by conduct. Consequently, he could not seek relief against the State in a public‑law forum and could only pursue a private claim against the landlord. The appeal was dismissed.
Issues considered
- The requirement of individual special notice under Rule 26 of the Gujarat Town Planning Rules and Sections 52‑53 of the Act
- Whether the tenant's failure to object to the draft scheme and re‑allotment amounts to a waiver or estoppel of his rights
- Whether the tenant can claim compensation or a right to a final plot against the State after the scheme attained finality
- Whether the notice provisions of the Act are mandatory or directory in this context
Legislation cited
- Gujarat Town Planning and Urban Development Act, 1976s. 52, s. 53, s. 65, s. 67, s. 68, s. 81, s. 82
- Gujarat Town Planning and Urban Development Rules, 1979s. 26, s. 33
- Indian Penal Code, 1860s. 188
- Transfer of Property Act, 1882s. 105
Subjects
Town planningLand acquisitionWaiverEstoppelNotice requirementRe‑allotmentCompensationTenant rightsGujarat Town Planning ActRule 26
Judgment
[2008] 7 S.C.R. 564
A BABULAL BADRIPRASAD VARMA
II.
SURAT MUNICIPAL CORPORATION & ORS.
(Civil Appeal No. 3203 of 2008)
MAY 02, 2008
B
(S.B. SINHA AND V.S. SIRPURKAR, JJ.)
Town Planning :
Gujarat Town Planning and Urban Development Rules,
c 1979:
r. 26 - Land acquired for a road widening project -
Rea/location of plots as per Scheme - Two plots of landlord
acquired one being under tenancy - Notice given to landlord
as also to tenant - Tenant not pursuing the matter - After final
D
allotment of plots tenant claiming that he was not served with
notice of final allotments of plots - Held : Rule 26 does not ~
I
contemplate individual notice - Tenant did not oppose the
draft Scheme - Even if the tenant had a claim, he would be
deemed to have waived the same - He has lost his right to
E enforce the same against the State in a public forum - He
may pursue his claim only against the landlord wherein, for
certain purposes, State or the authorities may be impleaded
as party - Waiver - Estoppel - Gujarat Town Planning and
Urban Development Act, 1976- Ss. 52, 67,68, 81 and 82.
F
1
Town Planning
Planning authority - 'Vesting' of land in it on acquisition •
for public purpose and enabling it to create third party interest
vis-a-vis for purpose of re-allotment of plots - Distinction
G between - Explained.
Respondent No.4 was the owner of Plot Nos. 17/7
and 17/8, the latter being under tenancy of the appellant. •
,,._
In order to acquire the said plots under a road widening
H 564
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 565
CORPORATION & ORS.
project of the Town Planning Scheme, notices were A
issued to the appellant and respondent noA. The
appellant though objected thereto, but did not pursue his
case further and, despite public notice, did not file any
objection to re-allotment of plots. Ultimately, respondent
no.4 was allotted final plot no.157 and some portion of B
plot no. 17/8 was merged in final plot no. 165 owned by
respondent no.3. In the process of implementing the
Scheme, respondent No.1 first served notices u/s. 67 of
the Gujarat Town Planning and Urban Development Act,
1976; and thereafter another notice u/s 68 of the Act on
respondent No.4 but he did not respond. Validity of the
c
second notice was challenged by the appellant in a writ
petition before the High Court contending, inter alia, that
the purpoted final allotments of plot nos. 165 and 157 in
favour of respondent nos. 3 and 4, respectively, were made
without issuing any notice as envisaged u/ss 52 and 53 D
.,.
'. of the Act. The writ petition as also the intra-court appeal
having been dismissed, the tenant filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1 A Town Planning Scheme, envisages E
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; and (iii) participation
in the matter of allotment of final plots. A person interested
~ in continuing to keep possession over a property and/or F
to claim a part of the amount of compensation must lay
}
his claim before the appropriate authority at the
appropriate stage. [para 15 and 22] [578-C, D; 580-A, B]
1.2 The appellant did not oppose the draft scheme
and accepted that the State had a right to do so. Existence G
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-a-vis for the purpose of re-allotment H
566 SUPREME COURT REPORTS [2008] 7 S.C.R.
A 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. While the proceedings relating to allotment
B of final plot were in progress, the appellant 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 or to continue to have its
possession, it was obligatory on him to participate in the
C proceedings. If in absence of any such claim filed by the
appellant, the authorities have proceeded to finalise
allotment of final plots in favour of the respondent Nos.3
and 4 it is too late in the day to claim reopening of the
entire scheme. [para 20-22 and 27] [581-D, E, F; 579-F, G;
D 580-B]
State of Gujarat v Shanti/al Mangaldas & Ors. 1969 (3)
SCR 341 - referred to.
2.1 Requirements in regard to the manner of service
of notice vary from statute to statute. Unlike r. 21 of the
E Bombay Town Planning Rules, 1955 wherein special
notice is required, Rule 26 of the Gujarat Town Planning
and Urban Development Rules 1979 does not
contemplate service of individual notice. It prescribes
service of notice in Form H. It furthermore provides that
F any person entitled to claim damages in terms of Section
82 of the Gujarat Town Planning and Urban Development
Act, 1976 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
G or extinction of such right. [para 15-16 and 26) [581-B;
578-A, B, CJ
Sureschandra C. Mehta v. State of Karnataka and Others
1994 Supp (2) SCC 511; West Bengal Housing Board etc.
Brijendra Prasad Gupta and Others, etc. AIR 1997 SC 2745 -
H relied on.
BABULAL SADRI PRASAD VARMA v. SURAT MUNICIPAL 567
CORPORATION & ORS.
Mansukhlal Jadavji Darji and Ors. Vs. Ahmedabad A
Municipal Corporation and Ors. (1992) 1 SCC 384;
Jaswantsingh Mathurasingh and Anr. vs. Ahmedabad
Municipal Corporation and Ors. (1992) Supp. 1 SCC 5;
Manekla/Chhotalal & Ors. Vs. M.G. Makwana and Ors. (1967)
3 SCR 65; and Bhikhubhai Vithalbhai Patel and Ors. Vs. State B
of Gujarat and Anr 2008(4) SCALE 278 - referred to.
2.2 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 cannot be. gone c
into by this Court for the first time. Validity of Rule 26 of
the Rules was not questioned nor was it claimed to be
ultra vires s. 52 of the Act. Assuming that it was obligatory
on the part of the State to serve a special notice up~n the
appellant, non-compliance thereof vis-a-vis the conduct D
'~ of the appellant himself would be of no consequence.
[para 21 and 23] [579-G, H; 580-A, E, F]
3. The appellant, through his conduct, has waived
his right to an equitable remedy in the instarit case as he
did not file objections for re-allotment nor did he E
participC\te in the proceedings following acquisition
instituted by the authorities under the Act. Such conduct
precludes and operates as estoppel against him with
r~spect to asserting a right over a portion of the acquired
• land in a situation where the scheme in question has F
attained finality following as a result of the appellant's
' inaction. 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 G
situation. Therefore, appellant has waived benefit of the .
.,,. notice provided under the Act and Rules in which no
_,,
public interest are involved. [para 24, 32, 33 and 351.
[580-F, 583-E, F; 584-A; 586-F; 588-D, E]
Manak Lal v. Dr. Prem Chand AIR 1957 SC 425; The· H
568 SUPREME COURT REPORTS [2008] 7 S.C.R.
A Director of Inspection of Income Tax (Investigation), New Delhi
and Another v. Pooran Mal & Sons and Anr (1975) 4 SCC
568; Krishna Bahadur v. Puma Theatre (2004) 8 SCC 229;
Bank of India v. 0.P Swarnakar (2003) 2 SCC 72; and
Ramdev Food Products Pvt. Ltd. V Arivindbhai Rambhai Patel
B and Ors. 2006 (8) SCALE 63 - relied on.
Halsbury's Laws of England, Volume 16(2), 4th edition,
para 907 - referred to.
4. It is not a case where the State by its acts of
.comissions 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
D claimants, viz., landlord and tenant. Though it cannot be
said 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, he has lost his right to enforce the same in a public
law forum. He has no enforceable claim against the State
E at this juncture. He may pursue his claim only against
res-pondent No.4 in an appropriate proceedings wherein
for certain purposes the State or the authorities may also
be impleaded as a party. [para 31] [582-H; 583-A, B, C]
F State of Gujarat v. Shanti/al Manga/das & Ors. [1969 (3)
SCR 341 - referred to.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3203
of 2008.
G From the Judgment and Order dated 27.12.2006 of the
High Court of Gujarat at Ahmedabad in LPA No. 1611/2006 in
SCA No.7092/2001.
..
U. U. Lal it, Sumita Hazarika for the Appellant.
Prashant G. Desai, Tejas Patel and S.C. Patel for the
H
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 569
CORPORATION & ORS. [S.S. SINHA, J.]
Respondent No.1. A
Shivangi (for Ms. Hemantika Wabi) for the State.
The Judgment of the Court was delivered by
··-"- ..
S.B. SINHA, J. 1. Leave granted.
B
r 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 c
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. 1611of2006 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.
D
3. Before embarking upon the issue involved in this appeal,
we may notice the admitted fact of the ma"tter.
The Government of Gujarat in exercise of its power
conferred upon it under Section 65 of the Act made a scheme
E
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 F
project was proposed in terms of the said scheme. Notices
r 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. G
... 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
H
570 . SUPREME COURT REPORTS [2008) 7 S.C.R.
A 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.
B 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
c 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
D
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 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
E 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
F 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 Guj~rat Town Planning and Urban Development Act
this is to inform you that as shown in the sketch on the
G 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
H Development Rules, 1979 the said land and the occupation
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 571
CORPORATION & ORS. [S.S. SINHA, J.)
-t
on the same will be summarily evicted and your occupation A
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 8
r 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 c
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:
D
"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 E
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 F
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 G
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 H
572 SUPREME COURT REPORTS [2008] 7 S.C.R.
A 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
B 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
c 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
D
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/
E 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
F no. 157 simultaneously, when he is to be evicted or
deprived of the portion of the land of original plot no. 17I
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
G made applicable to the present case."
7. A Division Bench of the High Court dismissed an intra-
court appeal preferred thereagainst.
t- "'
8. Mr. U.U. Lalit, learned senior counsel appearing on
H behalf of the appellant, in support of this appeal, inter alia would
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 573
CORPORATION & ORS. [S.B. SINHA, J.]
submit: A
(i) The prov1s1ons 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. 8
(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 c
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 D
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 E
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 F
v. Ahmedabad Municipal Corporation and Others [(1992) 1
SCC 384] and Jaswantsingh Mathurasingh and Another v.
Ahmedabad Municipal Corporation and Others [1992 Supp
(1) sec 5J.
9. Mr. Prashant G. Desai,Jearned counsel appearing on G
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.
H
574 SUPREME COURT REPORTS [2008] 7 S.C.R.
A (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.
B (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
c 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.
D 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
y
control of development and use of land included in the
development plans. Chapter V of the Act provides for town
planning schemes.
E 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
F 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
G 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
H prescribed form to the persons affected by the scheme,
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 575
CORPORATION & ORS. [S.B. SINHA, J.]
define and demarcate the areas allotted to, or reserved A
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;" B
r 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 - c
(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 D
..... ,, 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
E
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 ;ights settled by the Town F
• 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 G
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 Rules read as under: H
576 SUPREME COURT REPORTS [2008] 7 S.C.R.
A "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
B 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
c 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
D 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
E
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
F 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
G 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 J... '
such reasonable time as may be specified in the notice,
H to vacate the land.
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 577
CORPORATION & ORS. [S.B. SINHA, J.]
+- (b) If the person to be evicted fails to comply with the A
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 B
:r 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
c
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 D
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 E
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 F
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 G
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. H
578 SUPREME COURT REPORTS (2008] 7 S.C.R.
A 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 entitled to
B 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
Sectiv 1 82 of the Act should communicate the details of his
claim to the Town Planning Officer. Section 81 of the Act enables
c 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;
D
(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
E 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.
F 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
G 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
H to notice. In that context, it was held:
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 579
CORPORATION & ORS. [S.S. SINHA, J.]
+ "8. The question is whether the tenant or a sub- tenant is A
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 B
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
c
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 D
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. E
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 offinal F
~ 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 G
take part in the proceedings. Whether irrespective of Rule 26
f of the Rules which prescribes for issuance of a general public
-t notice, any special notice upon the appellant was required to
be served by the State or by the authority, in our opinion, cannot
be gone into by us in these proceedings for the first time. Validity H
580 SUPREME COURT REPORTS [2008] 7 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H notice. [See Sureshchandra C. Mehta v. State of Karnataka
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 581
CORPORATION & ORS. [S.B. SINHA, J.]
and Others 1994 Supp (2) SCC 511] A
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.
B
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 c
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 . D
• --<.
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 c:nd one so as to E
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 F
planning. It was on that legal principle, this Court in State of
>-
Gujarat v. Shanti/al Manga/das & 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 G
he gets the benefit of living in a developed town having good
Jo. town planning.
-+
28. Section 67 of the Act provides that all lands required
by the appropriate authority shall, unless it is otherwise
H
582 SUPREME COURT REPORTS (2008) 7 S.C.R.
A 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
B 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
c 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
D 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 Manek/a/ Chhotalal & Ors. v. M. G Makwana & Ors. ((1967)
3 SCR 65]
E 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
F 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
G 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.
H 31. It is not a case where the State by its acts of omissions
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 583
CORPORATION & ORS. [S.B. SINHA, J.]
i and commissions was unjustly enriching itself. It was a dispute A
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 B
:,- 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 c
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.
D
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.
(b) He did not file objections for re-allotment and did not E
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 F
• that he did not pursue his objections to the draft
t 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 G
from the Bombay Rules (wherein special notice is required), no
' ,. special notice is mandatorily required to be served. Assuming,
1 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 H
584 SUPREME COURT REPORTS [2008] 7 S.C.R
A 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:
B
"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
c 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
D
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
E 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"
F 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
G 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
H Beav. 65, 74; 54 E.R. 813, 817] "waiver '"'r acquiescence,
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 585
CORPORATION & ORS. [S.B. SINHA, J.]
like election, presupposes that the person to be bound A
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 8
and Another[(1975) 4 sec 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 c
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
0
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 E
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 caveat. They referred with F
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 G
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 H
586 SUPREME COURT REPORTS [2008] 7 S.C.R.
A 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
B 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."
c 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
D
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
E 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
F 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],
G though the principle was stated far more precisely, in the following
terms:
t
"9. The principle of waiver although is akin to the principle I-
of estoppel; the difference between the two, however, is
H that whereas estoppel is not a cause of action; it is a rule
BABULAL BADRIPRASAD VARMA v. SURAT MUNICIPAL 587
CORPORATION & ORS. [S.S. SINHA, J.]
of evidence; waiver is contractual and may constitute a 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 B
:r 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, c
may also be waived by his conduct."
[Emphasis supplied]
[See also Bank of India v. O.P Swarnakar (2003) 2 SCC
721] D
\.) _...._ 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 E
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 F
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 G
from conduct. A person who is entitled to rely on a
stipulation, existing for his benefit alone, in a contract or
f ,....
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
H
588 SUPREME COURT REPORTS [2008] 7 S.C.R.
A 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
B 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
c made by him, but he must accept their legal relations
subject to the qualification which he has himself so
in.troduced, even though it is not supported in point of law
by any consideration. [See 16 Halsbury's Laws (4th edn)
para 1471]"
D 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 't
and operates as estoppel against him with respect to asserting
a right over a portion of the acquired land in a situation where
E 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
F 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
G including one by filing a suit or making a representation before
the State.
38. For the reasons aforementioned, the appeal is
dismissed. No costs.
H R.P. Appeal dismissed.
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