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
In Manak Lal (Supra), Supreme court Court held that alleged bias of a Judge/official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. ‘Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.
Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest.
(See: M/s. Pannalal Binjraj and Ors. v. Union of India and Ors., AIR 1957 SC 397; and Justice P.D. Dinakaran (Supra))
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).
Supreme 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.
Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias etc., surrenders to the authority of the Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party. Needless to say that question of waiver/acquiescence would arise in a case provided the person apprehending the bias/prejudice is a party to the case. The question of waiver would not arise against a person who is not a party to the case as such person has no opportunity to raise the issue of bias.