(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. By way of present Appeal under clause 15 of Letters Patent, the appellants have challenged the order dated 25.11.2010 passed by the learned Single Judge in Special Civil Application no.7200 of 2010 by which the original petitioners challenged the draft town planning scheme no.689 which was sanctioned by the respondent no.1 after issuing preliminary town planning scheme.
2. We have heard Mr.Vimal Patel, learned counsel appearing for the appellants, Mr.N.J.Shah, learned Assistant Government Pleader appearing for respondent no.1 and Mr.Prashant Desai, learned Senior counsel assisted by Mr.Himanshu K.Patel appearing for respondent nos. 2 and 3.
3. It is an undisputed fact that after the draft scheme is sanctioned, the Town Planning Officer was appointed and he has issued a public notices in newspapers on 19.5.2006, 20.9.2007 and 27.10.2007 for preliminary scheme which includes the disputed land which belongs to the appellants, which was subsequently finalised by the Government under the provisions of The Gujarat Town Planning and Urban Development Act. The appellants did not raise any objections to these notices and accordingly, the scheme was sanctioned by the Government.
4. In absence of any objection raised by the appellants till the sanction of the scheme, the learned Single Judge was right in dismissing the petition on the ground that once preliminary scheme is sanctioned, it becomes part of the Act which cannot be challenged by way of writ petition in view of the judgment of the Apex Court in Babulal Badriprasad Varma v Surat Municipal Corporation and others 2008(3) GLH,135, paragraph-35 of which is extracted below.
"35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [JT 2006 (8) SC 393], this Court observed:
"The matter may be considered from another angle. If the 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 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 from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or 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 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 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 made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471] "
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 and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction."
5. The facts of the present case are similarly to the facts in the case of Babulal Badriprasad Varma (supra). In the present case also, the appellants have waived their right of filing objections to the notice published in the daily newspaper. We do not find any infirmity in the observations made by the learned Single Judge. This Appeal is devoid of any merits and is accordingly dismissed. Civil Application is also dismissed.
(V.M.SAHAI,J) (A.J.DESAI,J) ***vcdarji