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the appropriate authority shall prosecute him under s.188 of the Indian Penal Code STA |
Before embarking upon the rival contentions,we may also notice that the provisions of the Bombay Town Planning Rules,1955 Ratio |
for short "the Bombay Rules") are in pari materia with 'the Rules Ratio |
Rule 21 of the Bombay Rules provides for the Procedure to be followed by the Town Planning Officer STA |
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 publis... |
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 STA |
Sub-Rule (4) makes it imperative upon the Town Planning Officer to "give all persons affected by any particular 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... |
Rules 26 of the Rules do not contemplate service of individual notice STA |
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 STA |
Any person affected by the proposal of the Town Planning Scheme is entitled to inspect the Scheme in the office where arrangements for explaining the scheme proposals are made STA |
It furthermore provides that any person entitled to claim damages in terms of S.82 of the Act should communicate the details of his claim to the Town Planning Officer STA |
S.81 of the Act enables the State to transfer of right from original to final plot or extinction of such right STA |
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 Ratio |
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 Ratio |
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 Ratio |
We may also take notice of the decision of this Court in Mansukhlal Jadavji Ratio |
Darji1991 Indlaw SC 975 (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 pos... |
In Jaswantsingh Mathurasingh1991 Indlaw SC 972 (supra),it was reiterated that a tenant or a sub-tenant is a person interested and is entitled to notice PRE |
In that context,it was held: "The question is whether the tenant or a sub-tenant is a person interested and is entitled to notice PRE |
It is obvious that u/s.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 PRE |
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 PRE |
But he must be in possession of the property on the crucial date i.e.when PRE |
the Town Planning Scheme is notified in the official Gazette PRE |
Every owner or tenant or a sub-tenant,in possession on that date alone shall be entitled to a notice and opportunity PRE |
Rule 21(3),however,of the Bombay Rules has been amended in tune with Rule 26 of the Rules STA |
Amended rules are in pari materia with Rule 26 of the Rules STA |
Appellant was a tenant in respect of plot No.17/8.Plot No.17/7 was not a plot contiguous thereto FAC |
They were separated not only by a road but also by various other plots FAC |
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 Ratio |
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 Ratio |
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 Ratio |
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 be gone into by us in these proceedings for the first time Ratio |
Validity of Rule 26 of the Rules had never been questioned Ratio |
It had also not been contended that the said Rule is ultra vires S.52 of the Act Ratio |
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 Ratio |
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 Ratio |
We would consider the effect of Sub-s.(3) of S.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 an... |
Respondent No.4 was owner of both plot Ratio |
Nos.17/7 and 17/8.He was,therefore,in his own right entitled to final allotment of some plot Ratio |
We would,however,assume that it was obligatory on the part of the State to serve a special notice upon the appellant Ratio |
The question,however,would be : what would be the consequence of non-compliance thereof vis-'-vis the conduct of the appellant himself Ratio |
A person may waive a right either expressly or by necessary implication Ratio |
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 Ratio |
Different statutes provide for different manner of service of notice Ratio |
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 Ratio |
State of Karnataka and Others 1994 Supp (2) SCC 511 1993 Indlaw SC 538 Ratio |
In West Bengal Housing Board etc.v Ratio |
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 Ratio |
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 Ratio |
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 Ratio |
An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary Ratio |
Every step taken by the State does not involve application of the doctrine of eminent domain Ratio |
In this case,the appellant did not oppose the draft scheme Ratio |
It accepted that the State had a right to do so Ratio |
Existence of a public purpose and increase in the valuation of the property was admitted Ratio |
There exists a distinction in the Action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-'-vis for the purpose of re-allotment thereof Ratio |
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 Ratio |
It was on that legal principle,this Court in State of Gujarat v Ratio |
Shantilal Mangaldas & Ors.[1969 (3) SCR 341 1969 Indlaw SC Ratio |
254],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 Ratio |
S.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 STA |
What would be the quantum of payment of compensation therefor is also provided in S.82 of the Act STA |
It is in the aforementioned situation,a claim is to be made before the authority whenever a notice in Form H is published STA |
If a claim is not filed,the person,who is said to be injuriously affected,does so at its own peril STA |
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 STA |
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.[Maneklal Chhotalal Ratio |
Ors.v Ratio |
M.G.Makwana & Ors.[(1967) 3 SCR 65 1967 Indlaw SC 138 Ratio |
In Maneklal Chhotalal1967 PRE |
Indlaw SC 138 (supra),it was held: "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 u/art.19(5) of the Constitution PRE |
The considerations referred to above will also show that the grievance of the petitioners that Art.14 is violated,is also not acceptable PRE |
See also Bhikhubhai Vithlabhai Patel & Ors.v PRE |
State of Gujarat & Anr.2008 (4) SCALE 278 2008 Indlaw SC 527 PRE |
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 Ratio |
It is not a case where the State by its acts of omissions and commissions was unjustly enriching itself Ratio |
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 Ratio |
What is in dispute is the distribution of quantum thereof between two competing claimants,viz.,landlord and tenant Ratio |
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 Ratio |
But,we intend to emphasise that he has lost his right to enforce the same in a public law forum Ratio |
He has no enforceable claim against the State at this juncture Ratio |
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 Ratio |
Even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter Ratio |
It is not in dispute that: "(a) Appellant although filed an objection with regard to the draft scheme,did not choose to pursue it Ratio |
b Ratio |
He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act Ratio |
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 ... |
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 Ratio |
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 Ratio |
We are of the opinion that even if he had any such right,he waived the same Ratio |
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 Ratio |
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 Ratio |
It may arise from a party making an election,for example whether or not to exercise a contractual right Ratio |
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 Ratio |
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 th... |
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 PRE |
Dr PRE |
Prem Chand [AIR 1957 SC 425 1957 Indlaw SC 159] in the following terms PRE |
It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection PRE |
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 PRE |
As Sir Johan Romilly M.R.has observed in Vyvyan v PRE |
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