What is Acquiescence and Waiver ?

In M/s. Power Control Appliances and Ors. v. Sumeet Machines Pvt. Ltd., (1994) 2 SCC 448 this Court held as under:

Acquiescence is sitting by, when another is invading the rights. It is a course of conduct inconsistent with the claim… It implies positive acts; not merely silence or inaction such as involved in laches… The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the Defendant….

Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by this Court in P. John Chandy and Company (P) Ltd. v. John P. Thomas, AIR 2002 SC 2057. Thus, the Court has to examine the facts and circumstances in an individual case.

Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide: Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish, AIR 1935 PC 79; Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and Anr., AIR 1959 SC 149; Mademsetty Satyanarayana v. G. Yelloji Rao and Ors., AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933; Jaswantsingh Mathurasingh and Anr. v. Ahmedabad Municipal Corporation and Ors., (1992) 1 Suppl. SCC 5; M/s. Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062; and Krishna Bahadur v. Purna Theatre and Ors., AIR 2004 SC 4282).

This Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and Ors., AIR 1988 SC 233 considered the issue of waiver/acquiescence by the non-parties to the proceedings and held:

In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case….

There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights, by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.

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