REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    1103       OF 2009 (Arising out of SLP (C) No.16109 of 2006)

City Montessori School … Appellant

Versus

State of Uttar Pradesh & Ors. … Respondents

WITH

IA NO. 6 IN CIVIL APPEAL NO.6747 OF 1999

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant runs an educational institution situated at 11, Station Road

in the town of Lucknow.  The premises belong to one Smt. Urmila Bhalla

and Smt.  Sheela  Kapoor.   It  measured  23,000  sq.  ft.  of  land.   The  land

together with constructions thereupon measuring about 16,000 sq. ft.  was

given in tenancy in favour of the appellant.  The rest of the area, namely,

6,000 sq. ft. was given in tenancy to Late Mr. N.K. Bhargava (predecessor-

in-interest of Respondent No.8.   

3. Allegedly, appellant became a defaulter in payment of rent.  A suit for

ejectment  was  filed  by  the  landladies  resulting  in  a  decree  for  eviction

passed against it by the learned Civil Judge, Lucknow by a judgment and

decree  dated  9.11.1970.   A  first  appeal  and  a  second  appeal  preferred

thereagainst were dismissed by orders 4.5.1971 and 13.7.1976.  The school,

however, sent a requisition before the State of Uttar Pradesh for acquiring

the entire  23,000/-  sq.  ft.  of  land on or  about  22.7.1976.   A notification

under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter for the

sake of brevity called and referred to as ‘the said Act’) was issued pursuant

thereto  on  or  about  7.9.1976  and  published  in  the  Official  Gazette  on

6.10.1979.  A declaration in terms of Section 6 of the Act was issued in

respect of the entire land measuring 23,000 sq. ft on 6.10.1979.

4. Shri  N.K.  Bhargawa,  predecessor-in-interest  of  the  contesting

respondents filed a writ petition challenging the legality and/or validity of

the said notifications under Sections 4 and 6 of the Act.  A Division Bench

of the said Court, by a judgment and order dated 26.5.1998 found the said

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notifications under Sections 4 and 6 to be unsustainable and quashed the

same, inter alia, holding :

“The  learned  counsel  for  the respondent  Society submitted  that  since  the  proceedings  before  the Land  Acquisition  Collector  does  not  have  the character  of  judicial  proceedings  in  the  formal sense, therefore, it was for the petitioner to pursue his  objections in the  right  earnest  and demand a hearing.   The  submission  is  devoid  of  merit because  it  is  for  the  Collector  to  accord  a reasonable opportunity of hearing to the affected party and not for the later to demand it as held by the apex court in the matter of Farid Ahmed versus Ahmedabad Municipal Committee, AIR 1976 SC 2095.

In  his  bid  to  wriggle  out  of  the  embarrassing situation  the  learned counsel  then submitted that since at a later stage the land owners, who should have  been  the  primarily  aggrieved  party, themselves  acquiesced  in  the  acquisition  by withdrawing  the  compensation  in  early  1987 without  any  objection  and  refrained  from questioning  the  vires  of  the  acquisition  at  any stage,  therefore,  the  petition  itself  should  be thrown  out  as  having  become  redundant  or infructuous.   We  are  not  impressed  with  the submission  firstly  because  as  discussed hereinbefore, independent  of  the landowners,  the petitioner  being  a  lawful  lessee on  a part  of  the acquired  area  had  his  own  locus  standi  to challenge the acquisition and secondly because the subsequent acquiescence of the land owners to an acquisition  conceived  and  executed  in  illegality would lead its beneficiary nowhere.

Hence  for  the  reasons  recorded  above,  the impugned acquisition being unsustainable requires

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to be and is accordingly set aside.  Resultantly, the petition is allowed and both the notifications u/ss. 4 as well as 6 of the Land Acquisition Act dated 9.10.1976 and 6.10.1979 respectively contained in annexures 1 and 5 are quashed.”

5. The landladies were,  however,  not  impleaded as parties in the said

writ application.  They, in the meanwhile, entered into a settlement with the

appellant.   

Three special leave petitions were filed against the said judgment and

order dated 26.5.1998 before this Court by, i.e., (1) State of Uttar Pradesh;

(2) City Montessori School; and (3) Uttar Pradesh Parents Association.  An

interim order was passed on 3.8.1998 directing the parties to maintain status

quo with regard to the possession.

6. Indisputably, during the pendency of the said special leave petitions,

the State of Uttar Pradesh issued a notification denotifying the 6,000 square

ft. of land in purported exercise of its power under Section 48 of the Act.

There appears to be some dispute as to whether the said notification was

issued at the instance of the State of Uttar Pradesh or on the basis of oral

observations  made  by  this  Court.   The  proceeding-sheet  dated  6.3.2003

reads is as under :

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“Mr.  Rai  Prakash  Gupta,  learned counsel  started his  arguments  at  11.30  AM  and  concluded  at 12.40  PM.   Thereafter,  Mr.  Shanti  Bhushan, learned senior  counsel  addressed  the  Court  upto 2.35  PM.   Mr.  Dushyant  Dave,  learned  senior counsel started his arguments and was on his legs when  the  Court  rose  for  the  day.   The  matters remained part-heard.

List on 21.04.2003 at 2.00 PM as part-heard.

Learned counsel appearing for the State of U.P. is directed to make available the entire record of land acquisition on the adjourned date of hearing.

Written submissions, if any, be filed on or before 15.04.2003.”

7. We  may  place  on  record  that  the  contesting  respondents  herein

contend that the matter was adjourned in view of oral observations made by

this Court to the effect that ‘the contesting respondent should not have any

objection if the High Court’s judgment is affirmed to the extent of 6,000 sq.

ft.  of  land’.   The  State  of  Uttar  Pradesh  thereafter  affirmed an  affidavit

stating  therein  that  in  terms of  such observations  made by this  Court,  a

proposal was initiated for denotification of 6,000 sq. ft. of the total area of

the land.  It was recorded :

“Permission  to  file  affidavit  dated  18th March, 2002 shown to the Court wherein it is stated that the State Government is proposing to denotify the area occupied by the respondents from out of the

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total land acquired.  We adjourn this matter to 20th July, 2004.”

8. As  would  appear  from  the  affidavit  affirmed  by  Shri  Shashank

Bhargava,  the matter was listed on 21.7.2004 but  was adjourned for two

months.  The matter was again adjourned on 21.9.2004 for a further period

of  three  months  taking  note  of  the  fact  that  the  State  Government  had

proposed to denotify the area occupied by the respondent from out of the

total land acquired.  In this connection, respondents have stated :

“It was stated to us that the State Government was proposing  to  denotify  the  area  occupied  by  the Respondents  from out of the total land acquired. Even though decision has been taken, till date the denotification has not taken place.  We grant one final  opportunity  and  adjourn  these  Appeals  for three months to enable the Government to denotify the  area  occupied  by  the  Respondents.   In  the event  if it  is not denotified by the next date,  the Chief  Secretary  to  remain  present  in  this  Court personally.”

9. A notification was issued under Section 48 on 5.11.2004.   

The  judgment  of  this  Court  in  the  Civil  appeal  since  reported  in

[(2005) 3 SCC 444] was pronounced on 22.2.2005.

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Indisputably,  however,  appellant  herein  filed  a  writ  application

questioning the said notification dated 5.11.2004 before the High Court.  By

reason  of  the  impugned  judgment,  the  said  writ  application  has  been

dismissed.

10. Mr. Shanti  Bhushan, learned senior counsel appearing on behalf of

the appellant, would urge :

(1) The High Court committed a manifest error in so far as it  failed to

take into consideration that the appellant had locus standi to question

the validity of the said notification being the person aggrieved and

furthermore  as  the  purported  notification  dated  5.11.2004  having

been issued in violation of the principles of natural justice, the same

was a nullity and as such should have been set aside as prayed for in

the writ petition wherefor leave was granted by this Court.

(2) The  judgment  of  this  Court  does  not  anywhere  indicate  that  in

relation to issuance of the said notification, the appellant had any role

to play or had consented thereto or agreed for release of the said land.

(3) In view of the fact that the validity of the notification issued under

Section 4(1) and declaration under Section 6 of the Act having been

upheld by the Supreme Court,  the  appellant  was entitled  the relief

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prayed for in the writ petition, purported to the order of this Court

dated 22.2.2005.

11. Mr. S.B. Upadhyay, learned senior counsel appearing on behalf of the

State of Uttar  Pradesh,  on the other  hand,  would contend that this  Court

having  passed  the  order  in  terms  of  the  contention  made  by  all  the

respondents therein including the appellant herein, no relief can be granted

in its favour.

12. Mr. Mukund, learned counsel appearing on behalf of the contesting

respondents, urged :

(1) A consent  order  must be read in its  entirety and the judgment and

order  of  this  Court  dated  22.2.2005  so  read  having  regard  to  the

backdrop of events would clearly show that the appellant was the real

beneficiary  thereof  and  in  that  view  of  the  matter,  it  cannot  be

permitted to approbate or reprobate at the same time.  

(2) The purported liberty granted by this Court to challenge the legality

or the validity of the notification dated 5.11.2004 cannot be construed

to mean that the appellant is entitled to challenge a part of the order

while taking benefit of the other.   

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(3) In any view of the matter, this Court, having regard to the peculiar

facts  and  circumstances  of  this  case,  should  not  exercise  its

discretionary  jurisdiction  under  Article  136  of  the  Constitution  of

India.   

Appellant is a private person.  The notification under Section 4 and

declaration in  terms of  Section 6 of  the Act were issued in terms of the

provisions contained in Part VII of the Act.  

13. Section  40  of  the  Act  provides  for  an  enquiry  in  the  manner

prescribed in the Rules framed under the Act known as Land Acquisition

(Companies) Rules, 1963.

The Act makes a distinction between an acquisition made for a public

purpose and an acquisition made for the benefit of a company.  Acquisition

made at the instance of a company must be done in strict compliance of the

provisions contained in the Act and the Rules framed thereunder.  The Act

being an expropriatory legislation and particularly when resorted to for the

benefit of a private person requires scrupulous satisfaction of the statutory

requirements.   

In Hindustan Petroleum Corporation Ltd. v.  Darius Shapur Chennai

& Ors. [(2005) 7 SCC 627], its was held :

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“29. The Act is an expropriatory legislation.  This Court in  State of  M.P. v. Vishnu Prasad Sharma observed that in such a case the provisions os the statute should be strictly construed as it deprives a person of his land without consent  [See also Khub Chand v.  State of  Rajasthan and  CCE v.  Orient Fabrics (P) Ltd.]

There  cannot,  therefore,  be  any  doubt  that  in  a case of this nature due application of mind on the part of the statutory authority was imperative.”

In Devinder Singh & Ors. v.  State of Punjab & Ors. [(2008) 1 SCC

728], it was held :

“43. Expropriatory legislation,  as  is  well  known, must be strictly construed.  When the properties of a  citizen  are  being  compulsorily  acquired  by  a State in exercise of its power of eminent domain, the essential ingredients thereof, namely, existence of a public purpose and payment of compensation are  principal  requisites  therefor.   In  the  case  of acquisition  of  land  for  a  private  company, existence of a public purpose being not a requisite criterion,  other  statutory  requirements  call  for strict compliance, being imperative in character.”

14. The  High  Court  in  its  judgment  and  order  dated  26.5.1998,  in  no

uncertain terms, held :

“The  irresistible  inference  would,  therefore,  be that no amount of so-called laudable object of the respondent  Society  in  running  its  affairs  could justify the instant acquisition if it was not shown

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to  be  covered  by  the  situation  and  purpose envisaged by Section 40(1)(a) of the Act which as mentioned  hereinbefore  restricts  the  acquisition only to the purpose of erection of dwelling houses for  the  workmen  employed  by  it  or  for  the provision  of  amenities  directly  connected therewith;  and  certainly  the  expansion  of  the school  building  belonging  to  the  respondent society was not covered under the either of these two situations.

The contention that the Society was being run on charitable  basis  is  neither  supported  by  any material on record nor has any worthwhile bearing on  the  statutory  scheme  as  discussed  in  the proceeding para.  In the Constitution of the society produced  before  the  Land  Acquisition  Collector there  is  not  even  a  whisper  about  the  charitable nature of the Institution.  Neither in the documents nor in any averment raised before this court in the counter  affidavit  filed  at  different  stages  by  the respondent Society any indication was given that any seats for the admission of students in any class were ever reserved for the students  belonging to the  weaker/poorer  section  of  society  or  whether they are  given  any concession  in  the  matters  of admission,  fees  or  other  educational  facilities  at any stage of their career.  On its own showing the Society  is  rather  using  its  “savings”  either  for hiring better  qualified staff  or for the welfare of the said staff which in any case does not reflect its charitable character.

Be  that  as  it  may,  the  acquisition  being  for  a private company as expressed in Section 44-B of the Act and its being beyond the scope of Section 40(1)(a)  of  the  Act  must  fall  through  as impermissible under the law.”

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15. Indisputably, the owner of the land, namely, Smt. Usha Bhalla and

Smt. Sheela Kapoor did not raise any objection to the said acquisition.  We

are informed at the Bar that even the amount of compensation deposited by

the appellant herein has been withdrawn by them in its entirety during the

pendency of the first round of litigation.   

16. Despite  the  same, the High Court  on the writ  petition filed by the

contesting respondents quashed the notifications issued under Section 4(1)

of the Act as also the declaration made under Section 6 thereof.  The High

Court had to do so as it could not uphold one part of the notification and

quash another part.  It is one thing to say that a notification being illegal is

void  ab  initio  but  it  is  another  thing  to  say  that  a  party  in  view of  his

conduct would be found to be disentitled from grant of any relief.  The order

of  this  Court,  therefore,  should  be  constructed  keeping  in  view  the

aforementioned backdrop.   

17. Before this Court, three appeals were filed. One of them was filed by

the Parents Association.    In the said Special Leave Petition, the appellant

herein were respondents.  We have noticed hereinbefore that there exists a

dispute  as  to  whether  the  State  of  Uttar  Pradesh  took  steps  to  issue  the

denotification at the instance of this Court or on its own.  Ordinarily, the

State is expected to consider  the question of issuing denotification of an

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acquisition proceed on its own.  Denotification, however, was possible only

in respect of the 6,000 sq. ft. of land as possession thereof had not been

taken.

18. Submission  of  the  learned  counsel  appearing  on  behalf  of  the

appellant, however, is that the denotification in terms of Section 48 could be

issued only when Section 4 and 6 were invalid.  In law that is so.  But then,

the State on the same logic could not have been permitted to take recourse

thereto unless and until the judgment and order passed by the High Court

declaring  the  notification  under  Section  4(1)  and  the  declaration  under

Section 6(1) invalid was set aside.  It is in the aforementioned backdrop, the

question was mooted to uphold the notification in respect of 17,000 sq. ft. of

land upon denotifying 6,000 sq. ft. thereof.  The decision must, therefore,

have been taken keeping in view the aforementioned objective.

19. Legally, appellant is not a party to the said decision making process

but the entire exercise taken by the State of Uttar Pradesh either on its own

or on the basis of the observations made by this Court.  It could not have

been initiated and/or given effect to without consent of the appellants.  Even

if there was no explicit consent, implicit consent is evident.  Even otherwise

in a case of this nature, the doctrine of acceptance sub-silentio must apply.

[see Ramji Dayawala & Sons (P) Ltd. v. Invest Imports (1981) 1 SCC 80].

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20. The order dated 22.2.2005 passed by this Court must, therefore, stand

or  fall  in  its  entirety.   Concededly,  appellant  before  filing  of  the

aforementioned writ petition or even after the impugned judgment had been

passed, has not filed any application for review thereof.  We are informed at

the Bar that merely an application for clarification was filed contending that

the  said  judgment  did  not  preclude  the  appellant  from  questioning  the

legality of the denotification.  It is, therefore, evident that the appellant did

not want that the said order be reviewed in its entirety.  If the said order is to

be reviewed, of course, that part of the High Court judgment whereby and

whereunder even upon holding that the appellant is a person aggrieved and,

thus, no relief could have been granted to it, may have to be set aside but

then  for  the  said  purpose  even  accepting  the  submission  of  Mr.  Shanti

Bhushan that the notifications under Sections 4 and 6 must be deemed to

have been valid, entire notification was also required to be set aside.

Order of this Court, thus, has to be reviewed in its entirety or not at

all.  It was not a case where a clarification would have served the purpose.

We have noticed hereinbefore the submission of Mr. Shanti Bhushan that

the denotification in terms of Section 48 would have been permissible only

when the notification under Section 4 and declaration under Section 6 are

held to be valid.  The conclusion that the said notification under Section 4

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(1)  and  declaration  under  Section  6(1)  were  valid  could  not  have  been

arrived  at  by  this  Court  without  applying  its  mind  as  to  whether  the

judgment of the High Court is correct or not.

21. Validity of notification under Section 4(1) and the declaration under

Section 6 could have been declared by this Court only upon setting aside the

findings of the High Court and not prior thereto.  When a question arises as

to whether a statutory authority has acted mala fide or otherwise or had not

complied with the mandatory provisions of the statute rendering its decision

void and a nullity, the same must be established by the party alleging the

same.  The court exercising the power of judicial review cannot do so only

at the instance of parties who are colluding with each other.  The State, the

landladies, the appellant and the Parents Asociation, were all on one side.

The landladies for one reason or the other did not intend to question the

legality or validity of the acquisition notification.  They had even accepted

the amount of compensation deposited.  Contesting respondents only, thus,

were on the other side.  If the High Court’s judgment was to be set aside, it

was  to  be  set  aside  in  its  entirety  and  not  a  part  of  it.   However,  the

contesting respondents  could not have insisted that the entire notification

should be set aside as their interest in the land was confined to 6,000 sq. ft.

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only and upon issuance thereof, they ceased to have any locus to question

the entire notification.

22. Indisputably, in view of the decision of this Court, the principles of

natural  justice  had  to  be  followed  before  issuance  of  the  denotification

under  Section  48.   It  was  so  held  in  Larsen  & Toubro  Ltd. v.  State  of

Gujarat [(1998) 4 SCC 387] in the following terms :

“31. Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be  issued  if  the  State  Government  decides  to withdraw from the acquisition under Section 48 of the Act of any land of which possession has not been  taken.  An  owner  need  not  be  given  any notice of the intention of the State Government to withdraw  from  the  acquisition  and  the  State Government is  at  liberty to  do so.  Rights  of  the owner  are  well  protected  by  sub-section  (2)  of Section  48  of  the  Act  and  if  he  suffered  any damage  in  consequence  of  the  acquisition proceedings,  he  is  to  be  compensated  and  sub- section (3) of Section 48 provides as to how such compensation  is  to  be  determined.  There  is, therefore, no difficulty when it is the owner whose land is withdrawn from acquisition is concerned. However,  in  the case  of  a company, opportunity has  to  be  given to  it  to  show cause  against  any order  which  the  State  Government  proposes  to make withdrawing from the acquisition.”

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Larsen  &  Toubro  was  followed  in  State  Govt.  Houseless  Harijan

Employees’ Association v. State of Karnataka [(2001) 1 SCC 610], wherein

this Court held:

“33. The section does not in terms exclude the  principles  of  natural  justice.  However, the  section  has  been  construed  to  exclude the  owner’s  right  to  be  heard  before  the acquisition  is  withdrawn.  This  is  because the  owner’s  grievances  are  redressable under  Section  48(2).  No  irreparable prejudice is caused to the owner of the land and,  if  at  all  the  owner  has  suffered  any damage  in  consequence  of  the  acquisition proceedings  or  incurred  costs  in  relation thereto,  he  will  be  paid  compensation thereof under Section 48(2) of the Act. (See Amarnath  Ashram  Trust  Society v. Governor  of  U.P.; also  Special  Land Acquisition  Officer v.  Godrej  & Boyce1.) But  as  far  as  the  beneficiary  of  the acquisition is concerned there is no similar statutory  provision.  In  contrast  with  the owner’s  position  the  beneficiary  of  the acquisition  may  by  withdrawal  from  the acquisition  suffer  substantial  loss  without redress  particularly  when  it  may  have deposited compensation money towards the cost  of  the  acquisition  and  the  steps  for acquisition under the Act have substantially been  proceeded  with.  An  opportunity  of being heard may allow the beneficiary not only to counter the basis for withdrawal, but also, if the circumstances permitted, to cure any  defect  or  shortcoming  and  fill  any lacuna.”

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23. The question which, however, falls for consideration is as to whether

in a situation of this nature, principles of natural justice were required to be

complied with.  It is now a well settled principle of law that it cannot be put

in a straight jacket formula.  The Court, despite opining that principle of

natural justice was required to be followed, may, however, decline grant of a

relief,  inter  alia,  on  the  premise  that  the  same would  lead  to  a  useless

formality or that the person concerned, in fact, did not suffer any prejudice.

It is trite that a party may waive his right of hearing by his conduct.

It is furthermore well settled that a fact admitted need not be proved.

Indisputably, the appellant was a party to the decision.  The decision was

based  on  the  consent  of  the  respondents  which,  in  the  facts  and

circumstances  of  this  case,  must  be  held to  have included the appellants

herein also.

24. A judgment rendered by a court  of law and in particular a consent

order, it is trite, must not only be construed in its entirety but also having

regard to the pleadings and conduct of the parties.

{See  N.K. Rajgarhia v.  Mahavir Plantation Ltd. [(2006) 1 SCC 502

paragraph 19]}

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25. Judgment on consent in this case was passed only in view of Section

48(1)  of  the  Act  and  not  on  any  other  premise.   Appellant  is  the  only

beneficiary of the said order as by reason thereof, the judgment of the High

Court in respect of 17,000 sq. ft. of land was set aside.  By reason thereof,

the possession of the appellant was protected as otherwise it was bound to

hand over the vacant possession to the landladies pursuant to the order of

eviction.

For  the  aforementioned  purpose,  thus,  the  proceedings  before  this

Court assume significance.  We have noticed hereinbefore that the question

as to whether such a notification can be issued was debated.  The State of

Uttar Pradesh has been given opportunity after opportunity therefor.  The

Chief Secretary was also asked to remain personally present.

26. Only  thereafter,  the  noficiation  under  Section  48  of  the  Act  was

issued.  Appellants do not say nor does it appear from the record that at any

point of time it raised any protest.  In fact, it must be held to have accepted

the suggestion whether emanating from this Court or from the State of Uttar

Pradesh  without  any  demur  whatsoever.  It  is  in  the  aforementioned

situation,  the doctrine  that  a person cannot  be permitted  to  approbate  or

reprobate at the same time must be invoked.   

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In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. [1956 SCR

451], this Court held :

“But it  is argued by Sri Krishnaswami Ayyangar that as the proceedings in OS No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in OS No. 100 of 1919-20 are not collusive, not on the ground of res judicata or estoppel but on  the  principle  that  a  person  cannot  both approbate and reprobate, it  is immaterial that the present appellants were not parties thereto, and the decision  in  Verschures  Creameries  Ltd. v.  Hull and Netherlands Steamship Company Ltd. and in particular,  the  observations  of  Scrutton,  L.J.,  at page 611 were quoted in support of this position. There, the facts were that an agent delivered goods to the customer contrary to the instructions of the principal,  who  thereafter  filed  a  suit  against  the purchaser  for  price  of  goods  and  obtained  a decree.  Not  having  obtained  satisfaction,  the principal  next  filed  a  suit  against  the  agent  for damages on the ground of negligence and breach of duty. It was held that such an action was barred. The  ground of  the  decision  is  that  when on  the same facts, a person has the right to claim one of two reliefs  and with  full  knowledge he elects  to claim one  and  obtains  it,  it  is  not  open  to  him thereafter to go back on his election and claim the alternative relief.”.

Referring to some English decisions, it was observed :   

“It  is  clear  from the above observations  that  the maxim  that  a  person  cannot  ‘approbate  and reprobate’ is only one application of the doctrine of election, and that its operation must be confined to  reliefs  claimed  in  respect  of  the  same

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transaction  and  to  the  persons  who  are  parties thereto.”

In  C.  Beepathumma & Ors. v.  V.S.  Kadambolithaya & Ors.

[(1964) 5 SCR 836], this Court held :

“In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2. Having in this way accepted  benefit  and  thus  approbated  that document, neither he nor his successors could be heard  to  say  that  the  mortgage  in  Ex.  P-1  was independent of Ex. P-2 and that the limitation ran out  on  the  lapse  of  60  years  from 1842.  In  our opinion,  the  doctrine  of  election  was  properly applied in respect of Kunhi Pakki’s 1/4 share now in the possession of the present appellants through Defendant 8.”

In  Ambu Nair  since  Deceased v.  Kelu  Nair,  since  Deceased

[(1932-33) 60 Indian Appeals 266], it was held :

“Having  thus,  almost  in  terms,  offered  to  be redeemed  under  the  usufructuary  mortgage  in order to get  payment of the other  mortgage debt the  appellant,  their  Lordships  think,  cannot  now turn  round  and  say  that  redemption  under  the usufructuary  mortgage  had  been  barred  nearly seventeen years before he so obtained payment.  It is  a  well  accepted  principle  that  a  party  cannot both approbate and reprobate.  He cannot, to use the words of Honeyman J. in  Smith v.  Baker (1),

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“at the same time blow hot and cold.  He cannot say at  one time that  the  transaction  is  valid  and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some  further  advantage.”  See  also  per  Lord Kenyon  C.J.  in  Smith v.  Hodson (1)  where  the same expression is used.”

27. A party consenting to  an order cannot  be permitted to resile

therefrom while retaining the benefit obtained therefrom.  

{See Union of India v. Krishan Lal Arneja [(2004) 8 SCC 453]}.

28. For  the  reasons  aforementioned,  there  is  no  infirmity  in  the

impugned  judgment.   The  appeal  is  dismissed.   In  the  facts  and

circumstances  of  the  case,  however,  there  shall  be  no  order  as  to

costs.   

IA NO. 6 IN CIVIL APPEAL NO.6747 OF 1999

29. In view of the order passed above, no separate orders are required on

this I.A.  

...………………………J. [S.B. Sinha]

...………………………J. [Cyriac Joseph]

New Delhi;

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FEBRUARY 18, 2009

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