The principle of waiver does not apply if there was no explicit act of relinquishment, and a withdrawn petition without liberty bars any subsequent challenges.

1. We have heard counsel for the Appellant and the Respondents.

2. The present appeal arises from order dated 25.07.2014 dismissing Writ Petition (C) No. 1291 of 2013. The learned single Judge held that Writ Petition (C) No. 7853 of 2011 having been withdrawn on 03.01.2012 without reserving any liberty, a subsequent order in Writ Petition (C) No. 781 of 2011 on 04.09.2012 filed by another does not furnish a fresh cause of action to the Appellant.

3. Learned Counsel for the Appellant assailing the order under appeal submits that on the earlier occasion there had been no merit adjudication with regard to the validity of the land acquisition proceedings. The only issue considered by the Court was with regard to enhancement of compensation under S.18 of the Land Acquisition Act. The writ petition was withdrawn to pursue the same. The challenge to the land acquisition proceedings was not given up or waived. It does not bar or prohibit a fresh subsequent writ petition challenging the acquisition proceedings on which there was no merit adjudication earlier. Reliance is placed on AIR 1961 SC 1457 ( Daryao v. State of Uttar Pradesh ).

4. It was further submitted that the principle of waiver could not be invoked against the Appellant in context of the earlier order. Waiver has to be a conscious act expressly giving up a claim. There had been no express act for giving up the right to challenge the acquisition proceedings. The order dated 03.01.2012 does not reflect any such conscious waiver and on the contrary impliedly reflects that the issue with regard to the validity of the land acquisition proceedings never engaged the attention of the Court.

5. Learned Counsel for the Respondents have opposed the appeal submitting that the order under appeal calls for no interference. The subsequent decision in another case cannot furnish a fresh cause of action with regard to the finality of a decision inter - parties in Writ Petition (C) No. 7853 of 2011. Reliance is placed on, 2014 (6) SCC 351 ( Union of India v. Major S. P. Sharma ).

6. We have considered the respective submissions on behalf of the parties. The order dated 03.01.2012 reads as follows: -
'1. At the very outset, learned counsel appearing for the petitioner submits that since the matter has been referred to the District Judge under the provisions of S.18(2) of the Land Acquisition Act, 1894, thus, the petitioner does not want to pursue this petition and the petitioner may be permitted to withdraw the same.
2. No objection from other side.
3. It is ordered, as prayed for.
4. Accordingly, the writ petition is dismissed as withdrawn.'

7. The pleadings in Writ Petition (C) No. 7853 of 2011 reflect that the primary challenge was to the land acquisition proceedings themselves. Having been unable to persuade the Court to interfere with the same, rather than face an order of dismissal outright, the alternate remedy for expeditious disposal of the claim for enhancement was considered appropriate. The writ petition was therefore withdrawn without reserving any liberties. The effect of the withdrawal without any liberty reserved is that it bars a fresh writ petition to re - agitate the challenge to the acquisition proceedings. In 1987 (1) SCC 5 : AIR 1987 SC 88 ( Sarguja Transport Service v. State Transport Appellate Tribunal ) after considering Daryao (supra), it was observed as follows: -
'9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art.226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Darya