CITY MONTESSORI SCHOOL v. STATE OF UTTAR PRADESH & ORS

Citation: [2009] 2 S.C.R. 630

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

CITY MONTESSORI SCHOOL v. STATE OF UTTAR PRADESH & ORS.pdf

Judgment text

[2009] 2 S. C. R. 630 CITY MONTESSORI SCHOOL ll.. v " ' STATE OF UTTAR PRADESH & ORS. Civil Appeal No. 1103 of 2009 FEBRUARY 18, 2009 (S. B. SINHA AND CYRIAC JOSEPH, JJ. ) Land Acquisition Act, 1894 : t Sections 4, 6, 8, 40, 48 - Acquisition of land including ~ c::;land occupied by school - Supreme Court observed that if the land occupied by the school is left out of acquisition there ~ should be no objection to the contesting party- Subsequently Govt. issuing a Notification under s. 48 - Since the contest was confined only to the area occupied by school, entire Notification could not be set aside - A party may waive his \. fight of hearing by his conduct - Similarly when it consents to an order it cannot be permitted to resile therefrom while retaining the benefit obtained therefrom - Administrative Law - Principles of Natural Justice. Doctrines: Doctrine of sub-silentio acceptance - Applicability of. An extent of 6000 sq. ft.

of land occupied on rent by the appellant school, along with the adjoining land, was acquired by the Government. Challenge thereto reach_ed the Supreme Court and it-observed that the contesting respondent should not have any objection if the High Court's judgment is affirmed to the extent of 6000 sq. ft. of the total area of the land. Thereafter, the Notification under s. 48 came to be issued by the State Government. Dismissing the appeal, the Court _.. HELD : 1. Legally, appellant is not a party to the decision making process but the entire exercise has been STATE OF UTTAR PRADESH & ORS. 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.

[Para 19] [642-G-H; 643-A] 7 Ramji Dayawala &Sons (P) Ltd. v. Invest Imports (1981) ... 1 sec 80 - relied on. ""' Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai &Ors. (2005) 7 SCC 627 and Devinder Singh &Ors. v. State. of Punjab &Ors. (2008) 1 SCC 728 - referred to. 2. 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. only and upon issuance thereof, they ceased to have any locus to question the entire notification. [Para 21] [643-H; 644-A-D] 3. 1 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 prerriise 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 r respondents which, in the facts and circumstances of this - ~ case, must be held to have included the appellants also. 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. [Paras 23, 24] [645-H; 646-A-D] 3. 2 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 ·1andladies pursuant to the order of eviction. [Para 25] [646-E-F] ' Larsen & Toubro Ltd. v. State of Gujarat (1998) 4 SCC 387; State Govt. Houseless Ha. rijan· Employees' Association v. State of Karnataka (2001) 1 SCC 610 ar;id N. K. Rajgarhia v. Mahavir Plantation Ltd. (2006) 1 SCC 502 - relied on. 4. 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. [Para 26] [ 646-H; 647-A-B] 1- STATE OF UTTAR PRADESH & ORS. Nagubai Ammal & Ors. v. B. Shama Rao & Ors. 1956 SCR 451; C. Beepathumma & Ors. v. VS.

Kadambolithaya & Ors. (1964) 5 SCR 836 and Ambu Nair since Deceased v. Kelu Nair, since Deceased (1932-33) 60 Indian Appeals 266 - referred to. 5. A party consenting to an order cannot be permitted to resile therefrom while retaining the b~nefit obtained therefrom. [Para 27] [649-A] ""\ Union of India v. Krishan Lal Arneja (2004) 8 SCC 453 - ) relied on. Case Law Reference (2005) 1 sec 627 referred to Para 13 (2008) 1 sec 728 referred to Para 13 (1981) 1 sec 80 relied on Para 19 (1998) 4 sec 387 relied on Para 22 (2001) 1 sec 61 o relied on Para 22 (2006) 1 sec 502 relied on Para 24 1956 SCR 451 referred to Para 26 (1964) 5 SCR 836 referred to Para 26 (1932-33) 60 Indian Appeals 266 referred to Para 26 (2004) 8 sec 453 relied on Para 27 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1103 of 2009 From the final Judgement and Order dated 14. 7. 2006 of the High Court of Judicature at Allahabad in Writ Petition No. 11 (LA) of 2005. WITH IA No. 6 in Civil Appeal No.

6747 of 1999 Ravi Shankar, R. P. Gupta, Sushendra Kumar Chauhan, "" S. L Vaish, Suman Gupta and Kirti Srivatava, with him for the Appellant. S. B. Upadhyaya Manish Misra, Sanjay R. Hegde, Manoj Kumar Dwivedi, Gunna Venkateswara Rao, Vibha Dwivedi . Kamlendra Misra, C. Mukund, Gaurav Kumar Singh, Avneesh Garg, Shashank Sharma, Vandana Anand, B. K. Jain and Prashant Kumar, with him for the Respondent. 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 Lorqships think, cannot now turn round and say that redemption under the usufructUary mortgage had been barred nearly seventeen years before tie so obtained payment: It is a _, well a·ccepted principle that a party cannot both approbate L,, and reprobate. He cannot, to use the words of Honeyman J. in Smith v. Baker (1)1 "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 Ameja [(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'CIVILAPPEAL N0. 6747 OF 1999 29. In view of the order passed above, no separate orders are required on this I. A. G. N. Appeal dismissed.