Full Judgment Text
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
2
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
3
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
4
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 :
5
“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 :
th
“Permission to file affidavit dated 18 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
6
th
total land acquired. We adjourn this matter to 20
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.
7
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
8
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.
9
(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 :
10
“ 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
11
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.”
12
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
13
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].
14
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
15
(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.
16
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.”
17
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 & Boyce 1.)
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.”
18
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]}
19
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.
20
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
21
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),
22
“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;
23
FEBRUARY 18, 2009