Acquiescence and Waiver
Gulshan Tanwar
(Querist) 13 April 2011
This query is : Resolved
Acquiescence and waiver.- Abandonment of right.-The plea of Acquiescence and waiver is akin to estoppel.-When the circumstances do not permit the plea of estoppel against a person, plea of abandonment, acquiescence, waiver or laches is not permissible.-Mere acquiescence, waiver or laches not amounting to abandonment does not disentitle relief in equity in respect of executed contract. Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98: 1953 SCJ 68: 1953 SCR 351
Acquiescence and waiver.-Abandonment of right.-Land Acquisition.-Notification.-Persons not filing objections.-Cannot be permitted to contend inquiry was vitiated or seek quashing of declaration.-Notification conclusive proof that affected person had “waived” all personal objections.
Those claimants who have not filed objections to the Section 4 notification cannot be permitted to contend before Court that the Section 5A inquiry is vitiated so far as they are concerned. Nor can they be permitted to seek quashing of Section 6 declaration on that ground.
Now objections under Section 5A, if filed, can relate to the contention that (i) the purpose for which land is being acquired is not a public purpose, (ii) that even if the purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and objection (iii) is personal to the objector. Now in the (ii) and (iii) type of objections, there is a personal element which as to be pleaded in Section 5A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had “waived” all objections which were personal and which he could have raised. However, so far as objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose. Learned Solicotor General Sri Salve rightly argued that in respect of each land owner whose land is acquired the Section 4 notification if it is sought to be avoided on personal grounds as stated in (ii) and (iii) above, it is necessary that objection be filed to avoid a voidable notification. Otherwise, the notification which is not avoided on any personal grounds, remains operative and personal objections are deemed to be waived.# Delhi Administration vs. Gurdip Singh Uban and others, AIR 2000 SC 3737 : 2000(87) DIT 245 : 2000(4) Rec Civ R 368 : 2000(4) ICC 279 : 2000(7) SCC 296 : 200(4) Cur CC 1
Acquiescence and waiver.- Abandonment of right.-The plea of Acquiescence and waiver is akin to estoppel.-When the circumstances do not permit the plea of estoppel against a person, plea of abandon- ment, acquiescence, waiver or laches is not permissible.-Mere acquies- cence, waiver or laches not amounting to abandonment does not disentitle relief in equity in respect of executed contract. Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98: 1953 SCJ 68: 1953 SCR 351
Acquiescence and waiver.-Abandonment of right.-Land Acquisition.-Notification.-Persons not filing objections.-Cannot be permitted to contend inquiry was vitiated or seek quashing of declaration.-Notification conclusive proof that affected person had “waived” all personal objections.
Those claimants who have not filed objections to the Section 4 notification cannot be permitted to contend before Court that the Section 5A inquiry is vitiated so far as they are concerned. Nor can they be permitted to seek quashing of Section 6 declaration on that ground.
Now objections under Section 5A, if filed, can relate to the contention that (i) the purpose for which land is being acquired is not a public purpose, (ii) that even if the purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and objection (iii) is personal to the objector. Now in the (ii) and (iii) type of objections, there is a personal element which as to be pleaded in Section 5A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had “waived” all objections which were personal and which he could have raised. However, so far as objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose. Learned Solicotor General Sri Salve rightly argued that in respect of each land owner whose land is acquired the Section 4 notification if it is sought to be avoided on personal grounds as stated in (ii) and (iii) above, it is necessary that objection be filed to avoid a voidable notification. Otherwise, the notification which is not avoided on any personal grounds, remains operative and personal objections are deemed to be waived.# Delhi Administration vs. Gurdip Singh Uban and others, AIR 2000 SC 3737 : 2000(87) DIT 245 : 2000(4) Rec Civ R 368 : 2000(4) ICC 279 : 2000(7) SCC 296 : 200(4) Cur CC 1
Acquiescence and waiver.- Abandonment of right.-The plea of Acquiescence and waiver is akin to estoppel.-When the circumstances do not permit the plea of estoppel against a person, plea of abandon- ment, acquiescence, waiver or laches is not permissible.-Mere acquies- cence, waiver or laches not amounting to abandonment does not disentitle relief in equity in respect of executed contract. Sha Mulchand and Co., Ltd. v. Jawahar Mills Ltd., Salem, AIR 1953 SC 98: 1953 SCJ 68: 1953 SCR 351
Acquiescence and waiver.-Abandonment of right.-Land Acquisition.-Notification.-Persons not filing objections.-Cannot be permitted to contend inquiry was vitiated or seek quashing of declaration.-Notification conclusive proof that affected person had “waived” all personal objections.
Those claimants who have not filed objections to the Section 4 notification cannot be permitted to contend before Court that the Section 5A inquiry is vitiated so far as they are concerned. Nor can they be permitted to seek quashing of Section 6 declaration on that ground.
Now objections under Section 5A, if filed, can relate to the contention that (i) the purpose for which land is being acquired is not a public purpose, (ii) that even if the purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and objection (iii) is personal to the objector. Now in the (ii) and (iii) type of objections, there is a personal element which as to be pleaded in Section 5A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had “waived” all objections which were personal and which he could have raised. However, so far as objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose. Learned Solicotor General Sri Salve rightly argued that in respect of each land owner whose land is acquired the Section 4 notification if it is sought to be avoided on personal grounds as stated in (ii) and (iii) above, it is necessary that objection be filed to avoid a voidable notification. Otherwise, the notification which is not avoided on any personal grounds, remains operative and personal objections are deemed to be waived.# Delhi Administration vs. Gurdip Singh Uban and others, AIR 2000 SC 3737 : 2000(87) DIT 245 : 2000(4) Rec Civ R 368 : 2000(4) ICC 279 : 2000(7) SCC 296 : 200(4) Cur CC 1
Acquiescence and waiver.-Effect of .-Objection to jurisdiction.- Effect of acquiescence.-Existence of binding precedent.-The earlier judgement sought to be displaced as per incurium, after acquiescence in that judgment.-Such conduct on the part of the litigant is not permissible. Mamleshwar Prasad and another v. Kanahaiya Lal (Dead) through L.Rs., AIR 1975 SC 907: 1975(1) SCWR 405: 1975(2) SCC 232: 1975(3) SCR 834
Gulshan Tanwar
(Querist) 13 April 2011
Acquiescence and waiver.-Ingredients of.-Distinction with estoppel.-It must be conscious relinquishment of right. To constitute `waiver', there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinguishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, estoppel is a rule of evidence. Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and another, AIR 1959 SC 149: 1959 1 Mad LJ (SC) 89: 1959 Supp. (1) SCR 528
Acquiescence and waiver.-Invalid exercise of statutory power.-It cannot be validated by acquiescence or an estoppel contrary to express provision. K. Ramadas Shenoy v. Town Municipal Council, Udipi, AIR 1974 SC 2177: 1975(1) SCR 680: 1974(2) SCC 506
Acquiescence and waiver.-Jurisdiction of arbitrator.-Challenge to.-Jurisdiction covered by consent of parties to agreement.-Withdrawal of objection by opposite party indicate conscious acquiescence in continued jurisdiction of arbitrator.-Respondents precluded from challenging jurisdiction of arbitrator.
The jurisdiction which is conferred on the Arbitrator is on account of the consent of the parties to the arbitration agreement. Before the Arbitrator, the objection as to jurisdiction of the Arbitrator was withdrawn by the respondents. It shows acquiescence in the continued jurisdiction of the Arbitrator to decide the dispute. The minutes recorded show that after raising objection, the respondents have withdrawn the same. This would indicate a conscious acquiescence on the part of the respondents in the continued jurisdiction of the Arbitrator.# Construction India vs. Secretary, Works Department, Government of Orissa and others, AIR 1998 SC 717 : 1998(2) SCC 89 : 1998(86) Cut LT 142 : 1998(2) Mad LJ 85
Gulshan Tanwar
(Querist) 13 April 2011
Acquiescence and waiver.-Objection to jurisdiction.-District Consumer Forum.-Objection to jurisdiction.-Party participating in proceedings.-Cannot raise objection as to jurisdiction of Forum, thereafter.
The objection regarding jurisdiction was decided by the District Forum vide its order dated 26-7-1991 against which no appeal or revision was filed by the appellant and that apparently appears to have become final. After participating in the proceedings and being satisfied with the verdict regarding jurisdiction, it is too late for the appellant to urge, at this stage, that the District Forum had no territorial jurisdiction to entertain the complaint and pass orders under the Consumer Protection Act. The appellant is estopped from raising the plea of jurisdiction at this stage, on the ground that he cannot be permitted to both approbate and reprobate after submitting and acquiescing to the territorial jurisdiction of the District Forum.# Vikas Motors Ltd. vs. Dr. P.K. Jain, AIR 2000 SC 102 : 1999(3) Land LR 504 : 1999(4) Com LJ 29 : 2000(1) Civ LJ 486 : 1999(6) SCC 548 : 2000(124) Pun LR 433 : 1999(3) BLJR 2342 : 1999(37) All LR 368
Gulshan Tanwar
(Querist) 13 April 2011
Acquiescence and waiver.-Obligation under contract.-Mining lease.-removal of.-Decision of State Government to reduce mining area challenged by TISCO.-Appellant (FACOR) impleaded as party to writ petition.-High Court opined that entire matter regarding renewal of mining lease required to be considered by Central Government.-Appellant got assessment of its needs of chrome decided by Sharma Committee.-Recommendations proved by Central Government.-Appellant giving up its grievances regarding assessment made by Sharma Committee. Appellant's plea for approval of recommendations by Central Government partly in favour of appellant FACOR and partly in favour of TISCO showing its satisfaction of Central Government's order.-Effect.-Appellant by its own act and conduct waived its dispute regarding correct assessment of its needs by Committee as confirmed by Central Government and acquiesced its assessment.
On the principle of conscious waiver of its objections to the order dated 17th August, 1995 it must be held that FACOR gave up its grievance regarding assessment of its requirement of chrome ore as approved by the Sharma Committee add accepted by the Central Government recommending grant of lease of appropriate extent of land for meeting the assessed need of the appellant for chrome ore for the coming 50 years. We, therefore, find considerable force in the submission of the learned Senior Counsel for the contesting respondent that FACOR by its own conduct had waived its dispute regarding the correct assessment of its need by the Committee and as confirmed by the Central Government and it acquiesced in the said assessment.# Ferro Alloys Corporation Ltd. and another vs. Union of India and other, AIR 1999 SC 1236 : 1999(88) Cut LT 772 : 1999(4) SCC 149 : 1999(3) Civ LJ 732
Acquiescence and waiver.-Obligation under contract.-Application thereon.-Absence of corresponding liability on the other party.-The stipulation for exclusive benefit for one party can be waived unilaterally.Dr. Jiwan Lal and others v. Brij Mohan Mehra and another, AIR 1973 SC 559: 1972(2) SCC 757: 1973(2) SCR 230
Acquiescence and waiver.-Pleading of.-It is a relinquishment of right.- It is a mix question of fact and law and therefore cannot be raised for the first time in appeal. Waiver is not a pure question of law but it is a mixed question of law and fact. This plea was neither raised nor considered to the courts below and therefore ought not to be allowed to be taken at this stage of the proceedings.Waman Shriniwas Kini, v. Ratilal Bhagwandas and Co., AIR 1959 SC 689: 61 Bom LR 1011: 1959 SCJ 635: 1959 Supp (2) SCR 217
Acquiescence and waiver.-Pleading of.-Permissibility.-The plea of waiver likely to result in enforcement of an illegal agreement contravening the statutory provisions.-The plea of waiver is not permissible. Waman Shriniwas Kini, v. Ratilal Bhagwandas and Co., AIR 1959 SC 689: 61 Bom LR 1011: 1959 SCJ 635: 1959 Supp (2) SCR 217
Acquiescence and waiver.-Territorial jurisdiction.- The objection of territorial jurisdiction of the court can be waived and person concerned is estopped from raising such objection in execution proceedings. Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199: 1961(2) Ker LR 555: 1961(2) Mad LJ (SC) 157: 1962(2) SCR 747.
Acquiescence and waiver.-Waiver of procedural pre-requisites.-Dispute relating to construction of Barna Main Dam.-Reference to arbitrator to be preceded by decision of Superintending Engineer.-Limitation of 28 days prescribed to challenge decision.-Waiver of procedural pre-requisites.-Party at default cannot be permitted to set up bar for non-performance of pre-requisites to exclude arbitration clause.
A closer scrutiny of arbitration clause clearly suggests that the parties intended to enter into an arbitration agreement for deciding all questions and disputes arising between them through arbitration and thereby excluding the jurisdiction of ordinary civil courts. Such reference to arbitration is required to be preceded by a decision of the Superintending Engineer and a challenge to such decision within 28 days by the party feeling aggrieved therewith. The steps preceding the coming into operation of the arbitration clause though essential are capable of being waived and if one party has by its own conduct or the conduct of its officials disabled such proceeding steps being taken, it will be deemed that the procedural pre-requisites were waived. The party at fault cannot be permitted to set up the bar of non-performance of pre-requisite obligation so as to exclude the applicability and operation of the arbitration clause.# M.K. Shah Engineering & Contractors vs. State of Madhya Pradesh, AIR 1999 SC 950 : 1999(2) Mad LJ 19 : 1999(1) Rec Civ R 650 : 1999(2) SCC 594 : 1999(1) Cur CC 82
Gulshan Tanwar
(Querist) 13 April 2011
Acquiescence and waiver.-Obligation under contract.-Mining lease.-removal of.-Decision of State Government to reduce mining area challenged by TISCO.-Appellant (FACOR) impleaded as party to writ petition.-High Court opined that entire matter regarding renewal of mining lease required to be considered by Central Government.-Appellant got assessment of its needs of chrome decided by Sharma Committee.-Recommendations proved by Central Government.-Appellant giving up its grievances regarding assessment made by Sharma Committee. Appellant's plea for approval of recommendations by Central Government partly in favour of appellant FACOR and partly in favour of TISCO showing its satisfaction of Central Government's order.-Effect.-Appellant by its own act and conduct waived its dispute regarding correct assessment of its needs by Committee as confirmed by Central Government and acquiesced its assessment.
On the principle of conscious waiver of its objections to the order dated 17th August, 1995 it must be held that FACOR gave up its grievance regarding assessment of its requirement of chrome ore as approved by the Sharma Committee add accepted by the Central Government recommending grant of lease of appropriate extent of land for meeting the assessed need of the appellant for chrome ore for the coming 50 years. We, therefore, find considerable force in the submission of the learned Senior Counsel for the contesting respondent that FACOR by its own conduct had waived its dispute regarding the correct assessment of its need by the Committee and as confirmed by the Central Government and it acquiesced in the said assessment.# Ferro Alloys Corporation Ltd. and another vs. Union of India and other, AIR 1999 SC 1236 : 1999(88) Cut LT 772 : 1999(4) SCC 149 : 1999(3) Civ LJ 732
Acquiescence and waiver.-Obligation under contract.-Application thereon.-Absence of corresponding liability on the other party.-The stipulation for exclusive benefit for one party can be waived unilaterally.Dr. Jiwan Lal and others v. Brij Mohan Mehra and another, AIR 1973 SC 559: 1972(2) SCC 757: 1973(2) SCR 230
Acquiescence and waiver.-Pleading of.-It is a relinquishment of right.- It is a mix question of fact and law and therefore cannot be raised for the first time in appeal. Waiver is not a pure question of law but it is a mixed question of law and fact. This plea was neither raised nor considered to the courts below and therefore ought not to be allowed to be taken at this stage of the proceedings.Waman Shriniwas Kini, v. Ratilal Bhagwandas and Co., AIR 1959 SC 689: 61 Bom LR 1011: 1959 SCJ 635: 1959 Supp (2) SCR 217Acquiescence and waiver.-Pleading of.-Permissibility.-The plea of waiver likely to result in enforcement of an illegal agreement contravening the statutory provisions.-The plea of waiver is not permissible. Waman Shriniwas Kini, v. Ratilal Bhagwandas and Co., AIR 1959 SC 689: 61 Bom LR 1011: 1959 SCJ 635: 1959 Supp (2) SCR 217
Acquiescence and waiver.-Territorial jurisdiction.- The objection of territorial jurisdiction of the court can be waived and person concerned is estopped from raising such objection in execution proceedings. Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199: 1961(2) Ker LR 555: 1961(2) Mad LJ (SC) 157: 1962(2) SCR 747.
Acquiescence and waiver.-Waiver of procedural pre-requisites.-Dispute relating to construction of Barna Main Dam.-Reference to arbitrator to be preceded by decision of Superintending Engineer.-Limitation of 28 days prescribed to challenge decision.-Waiver of procedural pre-requisites.-Party at default cannot be permitted to set up bar for non-performance of pre-requisites to exclude arbitration clause.
A closer scrutiny of arbitration clause clearly suggests that the parties intended to enter into an arbitration agreement for deciding all questions and disputes arising between them through arbitration and thereby excluding the jurisdiction of ordinary civil courts. Such reference to arbitration is required to be preceded by a decision of the Superintending Engineer and a challenge to such decision within 28 days by the party feeling aggrieved therewith. The steps preceding the coming into operation of the arbitration clause though essential are capable of being waived and if one party has by its own conduct or the conduct of its officials disabled such proceeding steps being taken, it will be deemed that the procedural pre-requisites were waived. The party at fault cannot be permitted to set up the bar of non-performance of pre-requisite obligation so as to exclude the applicability and operation of the arbitration clause.# M.K. Shah Engineering & Contractors vs. State of Madhya Pradesh, AIR 1999 SC 950 : 1999(2) Mad LJ 19 : 1999(1) Rec Civ R 650 : 1999(2) SCC 594 : 1999(1) Cur CC 82
J K Agrawal
(Expert) 14 April 2011
Good and useful citations
