Case: Babulal Badriprasad Varma Vs. Surat Municipal Corpn.

3. Before embarking upon the issue involved in this appeal, we may notice the admitted fact of the matter.The Government of Gujarat in exercise of its power conferred upon it under Section 65 of the Act made a scheme in respect of the town of Umra, Surat on 1.06.1999.Plot Nos. 17/7 and 17/8 were owned by Respondent No. 4 herein. Appellant was a tenant under the said respondent in respect of Plot No. 17/8 admeasuring 1067 sq.m. He used to run a business of marble and stone therein. A road widening project was proposed in terms of the said scheme. Notices therefor were issued both to the appellant as also the respondent no.4. Appellant objected thereto. He, however, did not pursue his case in regard to the proposal for widening of the road.For the said public purpose, viz., widening of the road, 867 sq. m. of land was taken over leaving only 200 sq. m. of land. With a view to give effect to the provisions of the Act and the Rules framed thereunder, proceedings were initiated for allotment of the said land in terms of the Act. 20% of the land was taken over without payment of any compensation. In respect of the proceedings initiated for the purpose of re-allotment of the land, despite a public notice, the appellant did not file any objection. He did not take any part in the proceedings therefor. Respondent No. 4 was allotted a final plot bearing No. 157 and the said 200 sq. m. of land of plot No. 17/8 has merged in final plot No. 165 owned by the respondent No. 3.The Scheme was notified in the year 1999. Respondent No. 1 herein which is the statutory agency in terms of the Act for the purpose of implementation of the Scheme issued a notice under Section 67 of the Act upon the respondent no. 4 on or about 15.01.2000. As he did not respond thereto, a notice under Section 68 of the Act was served on him on 31.03.2000per the said approved preliminary scheme the plot No. 157 is allotted to you. And, its pole demarcations were done by the town planning officer at site. The said Final Plot/ Original Plot is allotted in lieu of your No. 17/7, 17/8 paiki land. And, the said land is now vested in the Municipal Corporation from 1.7.1999, and is of the ownership of the Municipal Corporation. Thereafter the notice below section 67 for the change in occupation was issued on 15.1.2000 to you. In spite of this you have not handed over the possession. Therefore, as per the Gujarat Town Planning and Urban Development Rules, 1979 rule 33 the undersigned in exercise of powers conferred below section 68(1) and 8(2) of the Bombay Provincial Municipalities Act and below the section 68 notice under the Gujarat Town Planning and Urban Development Act this is to inform you that as shown in the sketch on the reverse the premises marked should be vacated within 7 days from receipt of the notice and had over the possession to the Surat Municipal Corporation. If you fail to do so then on completion of the stipulated time limit as per the Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the said land and the occupation on the same will be summarily evicted and your occupation will be removed and if you obstruct/ interfere on it after taking away the possession you trespass then as provided under Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the action as per the section 188 of the Indian Penal Code will be initiated against you before the Criminal Court, pleased take note of the same.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 wasOn 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.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,It appears that in the said decision, the Apex Court while considering the scheme on the touch-stone of the mandatory procedure to be followed by the authority under the Bombay Town Planning Rules, has given directions to provide alternative accommodation based on the earlier decision in case of Jaswantsingh Mathurasingh and upheld the scheme. Such is not the issue in the present case nor there is any complaint by the tenant that any special notice was not served or that the mandatory procedure for finalization of the scheme is not followed. Further, it appears that if the interest of the landlord and of the tenant is common and in absence of any inter se dispute between the landlord and tenant, even if any portion of the land which is in possession of the tenant is included in the scheme, the proper remedy for the tenant would be to claim for compensation to that extent and if such compensation is not received by him, he may resort to proper remedy available for recovery of the compensation to the extent of the area in his occupation. At least on ground that the tenant is in occupation, it would not be a case for interference with the scheme which is sanctioned and made a part of the statute. Suffice it to say that the tenant will be at liberty to resort to appropriate proceedings against the landlord for the inter se rights and also for entitlement of the compensation. But if the area of original plot no. 17/8 is included in the final scheme and in exchange of the original plot held by Keshav Gramini of 17/8 and 17/7, the final plot is already allotted and as observed earlier it was even otherwise in the ownership of the original holder and it is only on account of inter se dispute the other persons are lawfully occupying the land, the tenant cannot insist that his landlord must be allotted the land of final plot no. 157 simultaneously, when he is to be evicted or deprived of the portion of the land of original plot no. 17/8. Therefore, in my view considering the peculiar facts and circumstances of the present case, the decision of the Apex Court in case of Mansukhlal (supra) cannot be made applicable to the present case.A Division Bench of the High Court dismissed an intra-court appeal preferred thereagainst.

Reasoning:
20. Appellant was a tenant in respect of plot No. 17/8. Plot No. 17/7 was not a plot contiguous thereto. They were separated not only by a road but also by various other plots.21. It is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. The draft scheme was approved. 867 sq. m. of land had been acquired for public purpose out of the said plot No. 17/8. While the proceedings relating to allotment of final plot were in progress, he even did not file any objection thereto. If he intended to claim any interest in a portion of plot No. 17/8 either for the purpose of obtaining compensation for acquisition of a part of the land or to continue to have possession over 200 sq. m. of land in plot No. 17/8, it was obligatory on his part to take part in the proceedings. Whether irrespective of Rule 26 of the Rules which prescribes for issuance of a general public notice, any special notice upon the appellant was required to be served by the State or by the authority, in our opinion, cannot be gone into by us in these proceedings for the first time. Validity of Rule 26 of the Rules had never been questioned. It had also not been contended that the said Rule is ultra vires Section 52 of the Act.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.We have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the Bombay Rules and the Rules.27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain.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 property or mandatory compensation in lieu thereof from the landlord. But, we intend to emphasise that he has lost his right to enforce the same in a public law forum. He has no enforceable claim against the State at this juncture. He may pursue his claim only against the respondent No. 4 in an appropriate proceedings wherein for certain purposes the State or the authorities may also be impleaded as a party. Even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter.32. It is not in dispute that:(a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it.(b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act.In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/ participate during the proceedings for re-allotment.33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same.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