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The doctrine of estoppel by election – Punjab Regional and Town Planning and Development Act, 1995 (in short ‘PUDA Act’) ,The Punjab Urban Estate (Development and Regulation) Act 1964 (in short ‘1964 Act’) and Punjab Housing Development Board Act, 1972 – plot allotted – as per the terms construction should be completed with in 3 years, else plot will be resumed – Demand notice issued an option to surrender the plot or to pay extension fee for the delay – Writ petitioner adopted payment of extension fee – after commencement of New Act , Writ petitioner issued notice for refund of the amount paid – commissioner rejected as Tehal singh case not applies – High court allowed the writ basing on Tehal singh judgment – Apex court held that Commissioner is rightly dismissed and set aside the order of High court as no party should blow hold and clod at the same time and as he availed the benefit from resumption of land by paying extension fee , can not go back and demanded for refund of the same = State of Punjab and Others …….Appellants Versus Dhanjit Singh Sandhu …..Respondent= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41318

The doctrine of estoppel by election – Punjab Regional and Town Planning and Development  Act, 1995 (in short ‘PUDA Act’)  ,The  Punjab  Urban  Estate (Development and Regulation) Act 1964  (in  short  ‘1964  Act’)  and  Punjab Housing Development Board Act, 1972  – plot allotted – as per the terms construction should be completed with in  3 years, else plot will be resumed – Demand notice issued an option to surrender the plot or to pay extension fee for the delay – Writ petitioner adopted payment of extension fee – after commencement of  New Act , Writ petitioner issued notice for refund of the amount paid – commissioner rejected as Tehal singh case not applies – High court allowed the writ basing on Tehal singh judgment – Apex court held that Commissioner is rightly dismissed and set aside the order of High court as no party should blow hold and clod at the same time and as he availed the benefit from resumption of land by paying extension fee , can not go back and demanded for refund of the same =

 

writ petition filed by the  respondent  was   allowed  and

the  order  dated   23.12.2004  passed  by  appellant  no.3  rejecting   the

application for refund of the extension fee received  by  the  appellant  in

excess of the rates mentioned in Rule 13 of the  Punjab  Regional  and  Town

Planning and Development Act, 1995 (in short ‘1995 Act’)  in  the  light  of

the judgment passed in C.W.P. No.13648 of 1998 (Tehal  Singh  vs.  State  of

Punjab & Ors.) along with up-to-date  interest has been set aside.=

High court held that

 “15. When the facts of the present  case  are  examined  in  the

           light of the  principle laid down by the Division Bench judgment

           in Tehal Singh’s  case (supra), we are left with no  doubt  that

           the  show  cause  notices  issued   to    the    petitioner   on

           19.9.2006  (P-4)  and   12.12.2006 {P-7} requiring  him  to  pay

           extension fee of Rs. 1,32,958/- was violative of the  provisions

           of the 1995 Act and Rule 13 of the 1995 Rules,  as  has  already

           been noticed in the preceding paras. The controversy,  in  fact,

           stand settled by the Division Bench judgment  in  Tehal  Singh’s

           case (supra) and the issue does not deserve to be reopened.  The

           respondents have failed to  consider  the  reply  filed  by  the

           petitioner wherein judgment rendered by the  Division  Bench  in

           Tehal Singh’s case (supra) has been cited and  the  charging  of

           extension fee at exorbitant rate has been duly answered.

    16. In view of above, the writ petition succeeds.  The  impugned

           notice dated 12.12.2006 (P-7) is hereby quashed. The respondents

           are directed to calculate the extension fee as per  Rule  13  of

           the 1995 Rules. =

 As noticed above, the facts are quite  different  from  the  facts  in

Tehal  Singh’s  case.   

In  the  instant  case,  the   respondents-allottees

accepted the terms and conditions of the  allotment  letter  and  possession

were taken but they did not raise any construction upto 2000.  There  was  a

specific condition that non-construction  of  building  would  lead  to  the

resumption of the said plot under the provisions of the Acts and the  Rules.

 As noticed above, when the allottees did  not  raise  construction  on  the

plot, the demand was raised for payment  of  non-construction  fee/extension

fee in order to avoid resumption of the  plot  by  the  Authority,  allottee

paid the extension fee.  After availing the benefit of extension on  payment

of extension  fee,  the  allottee  sent  a  letter  to  the  Estate  Officer

demanding refund of the extension fee on the basis of  amended  Rule  13  of

1995 Rules.  The said demand was rejected by the Estate Officer  by  passing

the reasoned order in compliance of the directions of the  High  Court.   In

the facts of the instant case, we have no doubt in our mind in holding  that

the ratio decided in Tehal Singh’s case will not apply in the instant  case.

 In our considered opinion defaulting allottes of valuable plots  cannot  be

allowed to approbate and reprobate by first agreeing to abide by  terms  and

conditions of allotment and later seeking to deny  their  liability  as  per

the agreed terms.=

 

It is settled proposition of law that once an order has  been  passed,

it is complied with, accepted by the other party  and  derived  the  benefit

out of it, he cannot challenge it on any  ground.  (Vide  Maharashtra  State

Road Transport Corporation vs. Balwant Regular  Motor  Service,  Amravati  &

Ors., AIR 1969 SC 329). In R.N. Gosain vs. Yashpal Dhir, AIR  1993  SC  352,

this Court has observed as under:–

            “Law does not permit a person to both approbate and  reprobate.

           This principle is  based  on  the  doctrine  of  election  which

           postulates  that  no  party  can  accept  and  reject  the  same

           instrument and that “a person cannot say  at  one  time  that  a

           transaction is valid and thereby obtain some advantage, to which

           he could only be entitled on the footing that it is  valid,  and

           then turn round and say it is void for the purpose  of  securing

           some other advantage.”

 

 

23.    This Court in Sri Babu Ram Alias  Durga  Prasad  vs.  Sri  Indra  Pal

Singh (Dead) by Lrs., AIR 1998  SC  3021,  and  P.R.  Deshpande  vs.  Maruti

Balram Haibatti, AIR 1998 SC 2979, the Supreme Court has observed  that  the

doctrine of election is based on the rule of estoppel-  the  principle  that

one cannot approbate and reprobate inheres in it. The doctrine  of  estoppel

by election is  one of the   species  of  estoppel  in  pais  (or  equitable

estoppel), which is a  rule  in  equity.  By  that  law,  a  person  may  be

precluded by his actions or conduct or  silence  when  it  is  his  duty  to

speak, from asserting a right which he otherwise would have had.

 

24. The Supreme Court in The  Rajasthan  State  Industrial  Development  and

Investment Corporation and Anr. vs. Diamond and Gem Development  Corporation

Ltd. and Anr., AIR 2013 SC 1241, made an observation that a party cannot  be

permitted to “blow hot  and  cold”,  “fast  and  loose”  or  “approbate  and

reprobate”.  Where one knowingly accepts  the  benefits  of  a  contract  or

conveyance or an order, is estopped to deny the validity or  binding  effect

on him of such contract or conveyance or order. This rule is applied  to  do

equity, however, it must not be applied  in  a  manner  as  to  violate  the

principles of right and good conscience.

 

 

25. It is evident that the doctrine of election is  based  on  the  rule  of

estoppel the principle that one cannot approbate and reprobate  is  inherent

in it. The doctrine of estoppel by election is  one  among  the  species  of

estoppel in pais (or equitable estoppel), which is  a  rule  of  equity.  By

this law, a person may be precluded, by way of his actions, or  conduct,  or

silence when it is his duty to speak, from asserting a right which he  would

have otherwise had.

 

26.   Be that as it may, so far as the instant case is concerned,  the  High

Court has totally overlooked the facts of the present case and  allowed  the

writ petition.  The impugned order, therefore, cannot be  sustained  in  law

and is hereby set aside.  The appeals are accordingly allowed.  However,  in

the facts of the case, there shall be no order as to costs.

 

2014 (March. Part ) judis.nic.in/supremecourt/filename=41318

B.S. CHAUHAN, M.Y. EQBAL

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 5698-5699 OF 2009
State of Punjab and Others …….Appellants

Versus

Dhanjit Singh Sandhu …..Respondent
JUDGMENT

M.Y. EQBAL, J.:

1. These appeals are directed against the judgment and order dated
8.1.2009 passed by the Punjab & Haryana High Court in C.W.P. No.8864 of
2007 and also order dated 27.3.2009 passed in Review Petition No. 112 of
2009, whereby the writ petition filed by the respondent was allowed and
the order dated 23.12.2004 passed by appellant no.3 rejecting the
application for refund of the extension fee received by the appellant in
excess of the rates mentioned in Rule 13 of the Punjab Regional and Town
Planning and Development Act, 1995 (in short ‘1995 Act’) in the light of
the judgment passed in C.W.P. No.13648 of 1998 (Tehal Singh vs. State of
Punjab & Ors.) along with up-to-date interest has been set aside.

2. The facts of the case lie in a narrow compass.
3. The respondent was allotted a plot of land measuring 400 square
yards bearing No.2177 at Durgi Road, Urban Estate Phase-II, Ludhiana vide
allotment letter dated 1.4.1986. In terms of allotment, the respondent was
required to complete the construction of building within three years from
the date of issuance of the allotment letter after getting the plans of the
proposed building approved by the competent Authority. The case of the
respondent-writ petitioner is that there was no condition in the allotment
letter for charging extension fee in the case of failure to complete
construction of the building within the aforementioned period of three
years nevertheless as per clause 15 of the allotment letter, the allotment
was subject to the provisions of Punjab Estates (Development and Regulation
Act), 1964 and the Rules and Policies framed thereunder.

4. It appears that in the year 1995, the State of Punjab came with the
legislation known as Punjab Regional and Town Planning and Development Act,
1995 (in short ‘PUDA Act’). By the said Act, the Punjab Urban Estate
(Development and Regulation) Act 1964 (in short ‘1964 Act’) and Punjab
Housing Development Board Act, 1972 were repealed. In exercise of power
conferred under the Act, the State Government framed rules called the
Punjab Regional and Town Planning and Development (General) Rules 1995 (in
short ‘1995 Rules’) which was published vide Notification dated 22nd
August, 1995. Rule 13 of the Rules specified the time within which the
building is to be constructed. It also provides for extension of time
limit subject to payment of prescribed fee mentioned therein.

5. The Punjab Urban Planning and Development Authority (in short
‘PUDA’) issued a circular dated 15.1.1998 revising the rate of extension
fee chargeable for the residential and commercial plots and by the said
circular a very high rate of extension fee was proposed to be charged. The
respondent from time to time deposited the extension fee so demanded by the
appellant. It is alleged that an amount of Rs.1.20 lacs has been in excess
charged from the respondent. The appellant’s case is that the appellant
in an attempt to nullify the effect of the judgment rendered in Tehal
Singh’s case and to validate the demand of enhanced rate of extension fee
purportedly framed the Rules called Punjab Regional and Town Planning and
Development (General) Second Amendment Rules, 2001 (in short ‘2001 Rules’)
giving retrospective effect.

6. The respondent moved a writ petition being C.W.P. No. 7934 of 2004
praying inter alia for the directions to refund the excess fee charged from
the respondent. It was disposed of with the directions to the appellant to
reconsider the representation and to dispose of the same in the light of
the order passed in C.W.P. No.13648 of 1998 (Tehal Singh’s case). In
compliance with the aforesaid directions, the respondent’s representation
was considered and came to be rejected by the appellant vide order dated
23.12.2004 on the ground that in the facts and circumstances of the case
the instant case was not similar to Tehal Singh’s case.

7. The writ petition was finally heard by the Punjab and Haryana High
Court and relying on the ratio decided in Tehal Sing’s case (supra)
disposed of the writ petition, quashed the notice and directed the
appellant to calculate the extension fee as per Rule 13 of 1995 Rules. For
better appreciation, the concluding paragraphs 15 to 17 of the impugned
order are quoted hereinbelow:-
“15. When the facts of the present case are examined in the
light of the principle laid down by the Division Bench judgment
in Tehal Singh’s case (supra), we are left with no doubt that
the show cause notices issued to the petitioner on
19.9.2006 (P-4) and 12.12.2006 {P-7} requiring him to pay
extension fee of Rs. 1,32,958/- was violative of the provisions
of the 1995 Act and Rule 13 of the 1995 Rules, as has already
been noticed in the preceding paras. The controversy, in fact,
stand settled by the Division Bench judgment in Tehal Singh’s
case (supra) and the issue does not deserve to be reopened. The
respondents have failed to consider the reply filed by the
petitioner wherein judgment rendered by the Division Bench in
Tehal Singh’s case (supra) has been cited and the charging of
extension fee at exorbitant rate has been duly answered.
16. In view of above, the writ petition succeeds. The impugned
notice dated 12.12.2006 (P-7) is hereby quashed. The respondents
are directed to calculate the extension fee as per Rule 13 of
the 1995 Rules. The needful shall be done within a period of two
months from the date of receipt of a certified copy of this
order. The petitioner shall pay the extension fee within a
period of two months from the date of receipt of the calculation
given in the fresh notice to be issued by the respondents. The
petitioner shall further be entitled to consequential benefit to
get the site plans approved. The petitioner is also held
entitled to his costs.
17. The other connected writ petitions are also disposed of in
the above terms. It is, however, clarified that in cases such as
C.W.P. Nos. 8864 and 13765 of 2007, where the petitioners have
already paid the extension fee as per the rates demanded by the
respondents, which are exorbitant and against the Division Bench
judgment of this Court in Tehal Singh’s case, the respondents
are directed to re-calculate the amount of extension fee as per
the provisions of Rule 13 of the Rules and refund the over-
payment alongwith interest 10% per annum.”

8. We have heard Mrs. Rachna Joshi Issar, learned counsel appearing for
the appellant.

9. As noticed above, the plot in question was allotted to the
respondent vide an allotment letter dated 1.4.1986. In terms of the
allotment letter, the allottee had to fulfill the terms and conditions
enumerated in the said letter. The terms and conditions of the said
allotment are extracted hereinbelow:-
“1. Plot No. 2177 Phase-II measuring 400 sq. yds. in Durgri Rd.
Urban Estate has been allotted to you. The tentative price of
the said plot is Rs. 51,000/-
2. The plot is preferential one and additional price at the rate
of 10% of the original normal price is Rs.
3. Total price of the plot (normal) plus preferential is Rs.
51,000/-
4. The above price of the plot is subject to variation with
reference to the actual measurement of the site as well as in
cost of enhancement of compensation by the court or otherwise
and you shall have to pay the additional price of the plot if
any, determined by the department, within 30 days of the date of
demand of in case of sale by allotment.
5. You shall have to convey your acceptance/refusal unless you
refuse to accept the allotment by a registered A/D letter within
30 days of the issue of this allotment order and have to pay 15%
of the sale price amounting of Rs. 4750/- or such other amount
with together with the amount already paid equal to at least 25%
of the sale price of the site. In case of failure to deposit the
sale amount the allotment shall be liable to be cancelled and
earnest money already paid forfeited.
6. In case you refuse to accept the allotment through
acknowledgment due registered letter addressed to the
undersigned within 30 days of the date of issue of allotment
order. You will be entitled to the refund of the earnest money
7. On payment of 100% of the purchase price of the plot you
shall have to execute in deed of conveyance in the prescribed
from in such manner as may be directed by the Estate Officer.
8. Balance 7.5% of the purchase price shall be payable either
lump-sum within 60 days of the issue of allotment order without
any interest or in four 2 six monthly equated instalment
alongwith interest at the rate of 7% per annum The first
installment shall fall due after the expiry of six months from
the date of issue of allotment order and shall be payable on the
10th of the month following in which it falls due.
9. Each remittance shall be remitted to the Estate Officer by
means of demand draft payable to him drawn on any Scheduled Bank
situated at the nearest place to the Estate Officer. Each such
remittance shall be accompanied by a letter showing particulars
of the site i.e. plot No. allotment No. and date of issue of
allotment order etc. In the absence of these particulars, the
amount shall not deem to have been received.
10. You shall have to pay separately for any building
material trees, structures and compound wall etc.
existing in the plot at the time of allotment for which
compensation has been assessed and paid by the
Government in x case you want to make use of the
same, failing which the government shall have the right remove
or dispose of the same even after the delivery of possession.
11. The allotment shall be liable to cancellation in case of
the declaration made in the application for the allotment of the
plot is established to be incorrect.
12. You shall have to complete the building within three years
from the date of issue of allotment order, after getting the
plans of the proposed building approved by the competent
authority.
13 The Government shall not be responsible for leveling the
uneven sites.
14. No allottee under this policy shall dispose of his plot for
period of ten years from the date of transfer of the ownership
to him. However the transfer of residential plot in the Urban
Estate shall be allowed to be made in case of death of the
allottee in favour of his hairs.
However, the transfer can be allowed before the expiry of
ten years, in exceptional cases, with the prior approval of the
Government. In case an allottee contravenes provisions of this
para, the plot will be resumed and price paid may be forfeited
by the Government.
15. The allotment is subject to the provision of the Punjab
Urban Estates (Development & Regulation) Act, 1964 and rules and
policy framed thereunder as amended from time to time and you
shall have to accept and abide by the provision of the Act/
Rules/ policy. “

 

 
10. Further, it is clear that the allotment of the plot was subject to the
provisions contained in the 1964 Act. Section 10 of the Act envisages
provision for resumption and forfeiture of the land in case of breach of
conditions of allotment. Section 10 reads as under:-
“10. Resumption and forfeiture for breach of conditions of
transfer.- (i) If any transferee has failed to pay the
consideration money or any installment thereof on
account of the sale of any site or building, or both, under
section 3, or has committed a breach of any other condition of
such sale, the Estate Officer may, by notice in writing, call
upon the transferee to show cause why an order of
resumption of the site or building, or both, as the case
may be, and forfeiture of the whole or any part of the
money, if any, paid in respect thereof (which in no case
shall exceed ten per cent of the total amount of the
consideration money, interest and other dues payable in
respect of the sale of the site or building, or both) should not
be made”.

11. In exercise of power conferred by 1964 Act, Rules were framed in the
year 1965 i.e. Punjab Urban Estate (Development and Regulation) Rules,
1964. Rule 14 of the said Rules categorically provided that the transferee
shall complete the building within three years from the date of issue of
the allotment letter. In accordance with the Rules and Regulations of
erection of the building, the time limit may be extended by the Estate
Officer if he is satisfied that failure to complete the construction of the
building within the said period was due to the reasons beyond the control
of the allottee.
12. Since the respondent-allottee failed to abide by the terms and
conditions and did not raise construction, he was liable to pay non-
construction fee/extension fee which was demanded from him in order to
enable him to avoid resumption of the plot to the appellant-authority. The
aforesaid demand was made by letters dated 6.1.1997 and 27.10.1999. The
said letter dated 6.1.1997 is extracted hereinbelow:-
“PUNJAB URBAN, PLANNING DEVELOPMENT AUTHOR, SECTOR -32, SAMARALA
ROAD, PUDA COMPLEX, LUDHIANA REGISTERED
To,
D.S. Sandhu Superintending Engineer (PWD) Office of the Chief
Engineer, PWD B&R, Patna
No. PUDA/E.O./Ludhiana (Endst. No. 2177)96/34478 Dated 06.01.97,
Sub: Regarding payment of balance installment resumption of plot
of Urban Estate D Road, Sector/ Phase-II at Ludhiana,
residential/ commercial plot no. 2177. area 400.
With regard to the above subject.
2. Res. 26712/- the detail of which is given below is recoverable
from you as balance of residential/commercial plot No. 2177,
Urban Estate, D road, Sector/Phase-II, at Ludhiana. Therefore,
deposit a bank draft of this amount alongwith 18%interest per
annum which should be in favour of Estate Officer, PUDA,
Ludhiana and may be payable at any scheduled bank upto 31.01.97
in all circumstances and appear before the undersigned on the
date at 11.00 a.m. in case of failure to do so, action would be
initiated for resumption of allotment of plot under the
conditions of allotment and under Punjab Regional and Town
Planning and Development Act, 1995 and the rules made thereunder
and no other opportunity would be given to you.
1…………amount of balance installments.
2. amount of enhanced compensation
3. extension fee 26712/-
4. interest
5. penalty
Total 26712
Sd/- Estate Officer In English PUDA,
Ludhiana.”
13. In response to the aforesaid letter dated 6.1.1997, the respondent
agreed to pay the extension fee imposed by the Estate Officer of the
appellant authority in order to avoid resumption/auction of the plot.

14. Meanwhile, the State of Punjab enacted Punjab Regional and Town
Planning and Development Act, 1995. Rules were also framed under the said
Act. By Section 183 of 1995 Act, earlier Act of 1964 and Punjab Housing
Development Board Act, 1972 were repealed with the saving clause.

15. Subsequent to the aforesaid Act, by Notification dated 30.6.1995,
Punjab Urban Development Authority was established w.e.f. 1.7.1995 and the
Board stood abolished with effect from that date. Many other Acts were
also repealed. By the said Act Authority was empowered to deal with the
land and prescribe the fee in case where extension of period for completion
of building is set for by the allottee.

16. Since the High Court passed the impugned order following the decision
rendered by the Punjab & Haryana High Court in Tehal Singh’s case, it would
be proper to refer the facts of that case.

17. In Tehal Singh vs. State of Punjab and Ors. (C.W.P. No.13648 of 1998),
the petitioner filed the writ petition seeking a writ for quashing certain
letters demanding extension fee and striking down condition No.19 of
allotment letter, insofar as it relates to the charging of separate
extension fee for non completion of construction of building. Further
mandamus was sought for directing the respondents to charge extension fee
from the petitioner under the provisions of Rule 13 of 1995 Rules. The High
Court after referring various provisions of 1995 Acts and Rules made
thereunder observed as under:-
“A conjoint reading of the various provisions of the 1995 Act
and the 1995 Rules shows that the transfer of land under sub-
section (1) of Section 43 is not only subject to the directions
which may be given by the State Government under the 1995 Act
but also the conditions which may be prescribed with regard to
completion of building of part thereof and with regard to
extension of period for such completion and payment of fee for
such extension. A perusal of rule 13 of the 1995 Rules along
with Section 180 (2) (i) and Section 2 (zc) of the 1995 Act
shows that the time within which the building is to be completed
and other related matters are governed by the 1995 Rules.
Therefore, with the coming into force of these Rules, the rates
of extension fee prescribed by the Board stood superseded and in
terms of sub-rule (2) of Rule 13 of the 1995 Rules, the
petitioners became eligible to seek extension of the specified
time limit subject to payment of the fee prescribed under sub-
rule (3) of Rule 13.”

18. The Court further came to the following conclusions:-
“We have thoughtfully considered the respective submissions. In
our opinion, Shri Malhotra’s contention on the issue of
applicability of the 1995 Act to the plots allotted to the
petitioners is clearly wide of the margin. A bare reading of the
plain language of sub-section (4)of Section 183 of the 1995 Act
makes it clear that the allotment of Section 183 of the 1995 Act
makes it clear that the allotment made by the erstwhile Board
will be deemed to have been made under the 1995 Act. Therefore,
the construction of the building will have to be regulated by
the conditions of allotment read with Rule 13 of the 1995 Rules.
As a logical corollary, the extension of the time limit
specified in the letter of allotment will also be governed by
the provisions of the 1995 Rules and the petitioners are
entitled to seek extension of the time limit by paying the fee
prescribed under Rule 13”.

 

19. Consequently the Court declared the notices demanding enhanced
extension fee as illegal and ultra vires to the provisions of 1995 Act
under the Rules made thereunder.

20. It is worth to mention here that the aforesaid judgment rendered in
Tehal Singh’s case was challenged before the Supreme Court in S.L.P.
No.18500-18501 of 1999 and was dismissed on 10.11.2000, but the said order
of dismissal was modified by the Supreme Court by order dated 12.2.2001 in
the following terms.
“In the facts and circumstances of the case the order does not
warrant in any interference of this Court. The appeals are
accordingly dismissed.”

 
21. As noticed above, the facts are quite different from the facts in
Tehal Singh’s case. In the instant case, the respondents-allottees
accepted the terms and conditions of the allotment letter and possession
were taken but they did not raise any construction upto 2000. There was a
specific condition that non-construction of building would lead to the
resumption of the said plot under the provisions of the Acts and the Rules.
As noticed above, when the allottees did not raise construction on the
plot, the demand was raised for payment of non-construction fee/extension
fee in order to avoid resumption of the plot by the Authority, allottee
paid the extension fee. After availing the benefit of extension on payment
of extension fee, the allottee sent a letter to the Estate Officer
demanding refund of the extension fee on the basis of amended Rule 13 of
1995 Rules. The said demand was rejected by the Estate Officer by passing
the reasoned order in compliance of the directions of the High Court. In
the facts of the instant case, we have no doubt in our mind in holding that
the ratio decided in Tehal Singh’s case will not apply in the instant case.
In our considered opinion defaulting allottes of valuable plots cannot be
allowed to approbate and reprobate by first agreeing to abide by terms and
conditions of allotment and later seeking to deny their liability as per
the agreed terms.

22. The doctrine of “approbate and reprobate” is only a species of
estoppel, it implies only to the conduct of parties. As in the case of
estoppel it cannot operate against the provisions of a statute. (vide
C.I.T. vs. Mr. P. Firm Maur, AIR 1965 SC 1216).
It is settled proposition of law that once an order has been passed,
it is complied with, accepted by the other party and derived the benefit
out of it, he cannot challenge it on any ground. (Vide Maharashtra State
Road Transport Corporation vs. Balwant Regular Motor Service, Amravati &
Ors., AIR 1969 SC 329). In R.N. Gosain vs. Yashpal Dhir, AIR 1993 SC 352,
this Court has observed as under:–
“Law does not permit a person to both approbate and reprobate.
This principle is based on the doctrine of election which
postulates that no party can accept and reject the same
instrument and that “a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to which
he could only be entitled on the footing that it is valid, and
then turn round and say it is void for the purpose of securing
some other advantage.”
23. This Court in Sri Babu Ram Alias Durga Prasad vs. Sri Indra Pal
Singh (Dead) by Lrs., AIR 1998 SC 3021, and P.R. Deshpande vs. Maruti
Balram Haibatti, AIR 1998 SC 2979, the Supreme Court has observed that the
doctrine of election is based on the rule of estoppel- the principle that
one cannot approbate and reprobate inheres in it. The doctrine of estoppel
by election is one of the species of estoppel in pais (or equitable
estoppel), which is a rule in equity. By that law, a person may be
precluded by his actions or conduct or silence when it is his duty to
speak, from asserting a right which he otherwise would have had.

24. The Supreme Court in The Rajasthan State Industrial Development and
Investment Corporation and Anr. vs. Diamond and Gem Development Corporation
Ltd. and Anr., AIR 2013 SC 1241, made an observation that a party cannot be
permitted to “blow hot and cold”, “fast and loose” or “approbate and
reprobate”. Where one knowingly accepts the benefits of a contract or
conveyance or an order, is estopped to deny the validity or binding effect
on him of such contract or conveyance or order. This rule is applied to do
equity, however, it must not be applied in a manner as to violate the
principles of right and good conscience.
25. It is evident that the doctrine of election is based on the rule of
estoppel the principle that one cannot approbate and reprobate is inherent
in it. The doctrine of estoppel by election is one among the species of
estoppel in pais (or equitable estoppel), which is a rule of equity. By
this law, a person may be precluded, by way of his actions, or conduct, or
silence when it is his duty to speak, from asserting a right which he would
have otherwise had.

26. Be that as it may, so far as the instant case is concerned, the High
Court has totally overlooked the facts of the present case and allowed the
writ petition. The impugned order, therefore, cannot be sustained in law
and is hereby set aside. The appeals are accordingly allowed. However, in
the facts of the case, there shall be no order as to costs.

 

……………………………J.
(Dr. B.S. Chauhan)

 
…………………………….J.
(M.Y. Eqbal)
New Delhi,
March 14, 2014.

———————–
18

 

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