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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 172 of 19710/21/2011any fault in the approach adopted by the High Court."Learned counsel for the intervenors has relied on the judgment of the Apex Court in Commissioner of Income Tax(supra) in which case the Apex Court observed that since the facts asserted in the affidavit of the assessee werenot disputed by the revenue, it appears that the revenue had waived its right to dispute the facts. Following wasobserved by the Apex Court in paragraph 10 which is quoted below:-"10. The assessments relate to a period about a quarter of century back and by its conduct, the revenue appearsto have waived its right to dispute the facts asserted in the affidavit on one hand by not challenging itsadmissibility and on the other, by not disputing the context thereof."Another judgment relied on by the learned counsel for the intervenors is Rajendra Singh's case (supra) in whichcase the Apex Court has laid down that a mandatory provision conceived in the interest by a party can be waivedby that party, whereas a mandatory provision conceived in the interest of the public cannot be waived by him.Following observation were made in paragraph 6 which is quoted below:-"6. While examining complaints of violation of statutory rules and conditions, it must be remembered that violationof each and every provision does not furnish a ground or the Court to interfere. The provision may be a directoryone or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it isestablished that violation of a directory provision has resulted in loss and/or prejudice to the party, no interferenceis warranted. Even in the case of violation of a mandatory provision, interference does not fellow as a matter ofcourse. A mandatory provision conceived in the interest of a party can be waived by that party, whereas amandatory provision conceived in the interest of public cannot be waived by him. In other wards, wherever acomplaint of violation of a mandatory provision is made, the Court should enquire- in whose interest is theprovision conceived. If it is not conceived in the interest of public, question of waiver and/or acquiescence mayarise - subject, of course, to the pleadings of the parties. This aspect has been dealt with elaborately by this Courtin State Bank of Patiala v. S.K. Sharma and in Krishanlal v. State of Jammu and Kashmir on the basis of a largenumber of decision on the subject. Though the said decisions were rendered with reference to the statutory Rulesand statutory provisions (besides the principles of natural justice) governing the disciplinary enquiries involvinggovernment servants and employees of statutory corporation, the principles adumbrated therein are of generalapplication. It is necessary to keep these considerations in mind while deciding whether any interference is calledfor by the Court whether under Article 226 or in a suit. The function of the Court is not a mechanical one. It isalways a considered course of action."There cannot be any dispute to the proposition as laid down above, but in the present cases, petitioners have notwaived any mandatory statutory provision as observed above. The above case does not help the petitioners inany manner.The next judgment relied on by the learned counsel for the intervenors is the judgment of the Apex Court in M. C.Mehta Vs. Union of India & Ors, (1999) 6 SCC 237.In the aforesaid said case, the Court was considering whether the question of waiver of notice came up forconsideration in context of principles of natural justice. Following was observed in paragraph 22 which is quotedbelow:-"22.We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, RajendraSingh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be madebetween cases where the provision is intended for individual benefit and where a provision is intended to protectpublic interest. In the former case, it can be waived while in the case of latter, it cannot be waived."Insofar as the submission of the learned counsel for the petitioners that some of the land owners/petitioners whowere allotted 6 % Abadi Plots/flats have sold their plots to third party, we are of the view that the mere fact thatthey have sold their Abadi plots/flats allotted to them does not mean that they have waived all their rights tochallenge the acquisition. As we have noticed above, that most of the petitioners have taken the ground in the writpetition that they were under bonafide belief that acquisition has been made for Planned Industrial Developmentand when it came to their knowledge that the purpose has been diverted and the land has been transferred toprivate parties they invoked the jurisdiction of this Court.In these circumstances, we are of the view that it cannot be presumed that the petitioners/land owners havewaived their rights and cannot be non-suited on the ground that they have waived their rights to challenge theacquisition.
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 173 of 19710/21/201113. Acquiescence:Shri L. Nageshwar Rao, learned Senior Counsel appearing for the State as well as Shri S.P. Gupta, learnedSenior Counsel appearing for the intervenors have also laid much stress on the acquiescence. It has beencontended that the acceptance of compensation under the 1997 Rules, clearly proves that the petitioners/landowners have acquiesced to the acquisition of their land and they cannot be now permitted to challenge the same.Development of land, allotment to third parties without any objection by the petitioners/land owners has also beencited as grounds to plead acquiescence. Acceptance of allotment of Abadi sites to some of the land owners havealso been referred to as acquiescence on the part of the land owners.Shri L. Nageshwar Rao, learned Senior Counsel appearing for the State as well as Shri S.P. Gupta, learnedSenior Counsel appearing for the intervenors have relied on the judgment of the Apex Court in The Naya GarhCo-operative Central Bank Ltd. & Anr. Vs. Narayan Rath & Anr. (1977) 3 SCC 576, Krothapalli Satya NarayanaVs. Koganti Ramaiah & Ors, (1984) 2 SCC 439, Ramdev Food Products (P) Ltd. Vs. Arvind Bhai Ram Bhai Patel& Ors, (2006) 8 SCC 726 and the judgment of the Apex Court in Urmila Roy & Ors Vs. Bengal Peerless HousingDevelopment Company Limited & Ors,(2009) 5 SCC 242.The judgment of the Apex Court in Naya Garh Co-operative Central Bank Ltd. (supra) was a case where theRegistrar Co-operative Societies disapproved the appointment of the respondent no.1 as Secretary of the Bankafter 13 years. In the said circumstances, the Apex Court observed that the Registrar shall be treated to haveacquiesced to the appointment. Following was laid down in paragraph 4 which is quoted below:-"4. The writ petition filed by respondent No. 1 could succeed, in our opinion, on the narrow ground that he hadbeen permitted to function for over thirteen years as secretary of the Bank and that his appointment as secretarywas decided upon in a meeting over which the Registrar of Co-operative Societies had himself presided, The writpetition in substance is directed not against any order passed by the Co-operative Bank but against the orderpassed by the Registrar disapproving the appointment of respondent No. 1 as secretary of the Bank. It was notopen to the Registrar, in our Opinion, to set aside respondent No.l's appointment as a secretary after havingacquiesced in it and after having, for all practical purposes, accepted the appointment as valid. It is undesirablethat appointments should be invalidated in this manner after a lapse of several years."In the case of Krothapalli Satyanarayana (supra) in a suit which was filed for declaration of a right to passage after9 years, it was observed that the plaintiff was held to have acquiesced to the construction of wall. The said casewas on its own fact and has no application in the present case. Following observation was made in paragraph 8which is quoted below:-"8. In this case both the appellate Court and High Court have concurrently held that the Plaintiff was guilty ofacquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the court in1965 and even in that year he did not seek the prayer for removal of wall which prayer was for the first timeintroduced in 1969. In this background, we are not inclined to entertain the submission on behalf of the plaintiffappellantthat defendants 2 and 3 should be directed to remove the wall W W-1 and clear the passage ofencroachment."In Ramdev Food Products Pvt. Ltd.(supra) defining the acquiescence following was laid down in paragraphs 103and 104 which are quoted below:-"103.Acquiescence is a facet of delay. The principle of acquiescence would apply where: (i) sitting by or allowanother to invade the rights and spending money on it; (ii) it is a course of conduct inconsistent with the claim forexclusive rights for trade mark, trade name, etc.104.In Power Control Appliances v. Sumeet Machines (P) Ltd. sthis Court stated:(SCCp.457,para 26)"26.Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course ofconduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; notmerely silence or inaction such as is involved in laches."The last case relied on by the learned counsel for the respondents is Urmila Roy (supra) in which land acquisitionproceedings after issuance of notification under Section 4, the attorney of land owners wrote a letter that ownersare willing to negotiate the price of the land. In the said circumstances, the Court observed that the land ownershad acquiesced to the acquisition. Following was laid down in paragraph 60 which is quoted below:-
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