Holding

The Supreme Court held that the school had implicitly consented to the acquisition, the Section 48 notification is valid, and the consent order must stand in its entirety, dismissing the appeal.

Summary

The City Montessori School occupied 23,000 sq ft of land in Lucknow, of which 6,000 sq ft was held by a predecessor lessee. The State of Uttar Pradesh acquired the entire land under the Land Acquisition Act, 1894, issuing notifications under Sections 4 and 6, which were later challenged. The High Court quashed the notifications, but the Supreme Court observed that the school, by its conduct and the consent of the parties, had implicitly accepted the acquisition of the remaining 17,000 sq ft and could not later contest the denotification of the 6,000 sq ft while retaining the benefit of the order. Applying the doctrine of sub‑silentio acceptance and the principle that a party cannot both approbate and reprobate, the Court held that the entire consent order must stand and the notification under Section 48 was valid. Consequently, the appeal filed by the school was dismissed.

Issues considered

Whether the notification under Section 48 of the Land Acquisition Act, 1894, is valid in view of the earlier High Court judgment quashing Sections 4 and 6 notifications.
Whether the appellant school implicitly consented to the acquisition and therefore cannot challenge the denotification while retaining its benefit.
Whether the doctrine of sub‑silentio acceptance and the principle of election (approbate‑reprobate) apply to a consent order in land acquisition proceedings.
Whether principles of natural justice were violated in the issuance of the Section 48 notification.

Legislation cited

Land Acquisition Act, 1894s. 4, s. 40, s. 48, s. 6, s. 8

Subjects

Land acquisitionSection 48Natural justiceSub‑silentio acceptanceConsent orderDoctrine of electionExpropriationDenotificationPublic purposePrivate company

Judgment

[2009] 2 S.C.R. 630

A CITY MONTESSORI SCHOOL ll..
v " '
STATE OF UTTAR PRADESH & ORS.
Civil Appeal No. 1103 of 2009
FEBRUARY 18, 2009
B
(S.B. SINHA AND CYRIAC JOSEPH, JJ.)
Land Acquisition Act, 1894 :
t
Sections 4, 6, 8, 40, 48 - Acquisition of land including ~
c::;-

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
D \.

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.
E 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
F 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
G
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
H 630
CITY MONTESSORI SCHOOL V. 631
STATE OF UTTAR PRADESH & ORS.

/ taken by the State of Uttar Pradesh either on its own or A
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 B
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 c
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 D
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 E
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
F
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 G
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] H
632 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B 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.
-
~

c 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. [Paras 23, 24] [645-H; 646-A-D]

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
E
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
F 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
G 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
H time must be invoked.[Para 26] [ 646-H; 647-A-B]
1-
CITY MONTESSORI SCHOOL V. 633
STATE OF UTTAR PRADESH & ORS.

Nagubai Ammal & Ors. v. B. Shama Rao & Ors. 1956 A
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 B
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.
c
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 D
(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
E
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 F

(2004) 8 sec 453 relied on Para 27
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1103
of 2009
G
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 H
634 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
B .Kamlendra Misra, C. Mukund, Gaurav Kumar Singh, Avneesh
Garg, Shashank Sharma, Vandana Anand, B.K. Jain and
Prashant Kumar, with him for the Respondent.
<';
The Judgement of the Court was delivered by
c S.B. SINHA, J. ,.
~

1. Leave granted. f"-

2. Appellant runs an educational institution situated at 11,
Station Road in the town of Lucknow. The premises belong to
D 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
E (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
F 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
G 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 f!leasuring 23,000 sq. ft on
H 6.10.1979.
CITY MONTESSORI SCHOOL V. 635
STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

,
1
4. Shri N.K. Bhargawa, predecessor-in-interest of the A
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 notifications
under Sections 4 and 6 to be unsustainable and quashed the s
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 C
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 D
of Farid Ahmed versus Ahmadabad 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 E
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 F
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 G
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 H
636 SUPREME COURT REPORTS [2009] 2 S.C.R.

A acquisition being unsustainable requires 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."
B 5. The landladies were, however, not impleaded as parties
in the said writ application. They, in the meanwhile, entered into
a se1:tlement 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.,
c (1 YState of Uttar Pradesh; (2) City Montessori Schoo_I; 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.

D 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
it$ power under Section 48 of the Act. There appears to be some
dispute as·to whether the said notification was issued at the
E 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 :
"Mr. Rai Prakash Gupta, learned counsel started his
·arguments at 11.30 AM and concluded at 12.40 PM.
F 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.
G 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
_j
the adjourned date of hearing.
H
CITY MONTESSORI SCHOOL V. 637
STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

,..! Written submissions, if any, be filed on or before A
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 B
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 : c
"Permission to file affidavit dated 1gth 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 total land acquired. We adjourn
D
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 E
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 F
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 G
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.
H
638 SUPREME COURT REPORTS (2009] 2 S.C.R.

A The judgment of this Court in the Civil appeal since \.
reported in [(2005) 3 sec 444] was pronounced on 22.2.2005.
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,
·B 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
c 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
D 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
E indicate that in relation to issuance of the said
notification, the appellant had any role to play or had
consented thereto or agreed for re:lease of the said
land.

F (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
·prayed for in the writ petition, purported to the order
G 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
H appellant herein, no relief can be granted in its favour.
CITY MONTESSORI SCHOOL V. 639
STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

,,)
12. Mr. Mukund, learned counsel appearing on behalf of A
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
B
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 c
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 th.e
order while taking benefit of the other.
D
(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 E
Section 4 and declaration in terms of Section 6 of the Act were
issued in terms of the provisions contained in Part VI I 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 F
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 G
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.
H
tl40 SUPREME COURT REPORTS [2009] 2 S.C.R.

A In Hindustan Petroleum Corporation Ltd. v. Darius Shapur
\_
Chennai & Ors. [(2005) 7 SCC 627], its was held :
"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
B 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
c 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 sec. 728]' it was held :
"43. Expropriatory legislation, as is well known, must be
D
strictly construed. When the properties of a citizen are
being compulsorily acquired by a State in exercise of its "
power qf em_inent domain, the essential ingredients thereof,
namely, existence of a public purpose and payment of
compensation are principal requisites therefor. In the case
E 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." ·
F 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
G acquisition if it was not shown 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
H of amenities directly connected therewith; and certainly
CITY MONTESSORI SCHOOL V. 641
STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

the expansion of the school building belonging to the A
~-
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 B
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 c
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, D
x 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. E

Be that as it may, the acquisition being for a private
company as expressed in Section 44-8 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." F
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 G
the first round of litigation.
i-·
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
H
i
,.
642 SUPREME COURT REPORTS (2009] 2 S.C.R. ,___
i

.r-
'r
A 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 I

.ab initio but it is another thing to say that a party in view of his r=
conduct would be found to be disentitled from grant of any relief.
B 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 appeliant herein were respondents. We have w
c noticed hereinbefore that there exists a disRute as to whether
't-

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 denotificatiori of
an acquisition proceed on its own. Denotification, however, was
D possible only in respect of the 6,000 sq. ft. of land as possession
thereof had not been taken.
1-8. Submission of the learned counsel appearing on behalf
of the appellant, however, is that the denotification in terms of
Se.ction 48 could be issued only when Section 4 and 6 were
E 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
I-
declaring the notification under Section 4(1) and the declaration
under Section 6(1) invalid was set aside. It is in the
F aforementioned backdrop, the question was mooted to uphold
Jhe notification in respect of 17,000 sq. ft. of land upon denotifying
6,000 sq. ft. thereof. The decision must, therefore, have been
I-

taken keeping in view the aforementioned objective.
19. Legally, appellant is not a party to the said decision
G 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
H

t·
CITY MONTESSORI SCHOOL V. 643
STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

.r·• otherwise in a case of this nature, the doctrine of acceptance A
sub-silentio must apply. [see Ramji Oayawala & Sons (P) Ltd.
v. Invest Imports (1981) 1 SCC 80].
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 B
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
c
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 D
• 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 E
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 F
are held to be valid. The conclusion that the said notification
under Section 4(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. G
t 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
H
CITY MONTESSORI SCHOOL V. 645
" STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

is concerned. However, in the case of a company, A
,A
opportunity has to be given to it to show cause against
any order which the State Government proposes to make
withdrawing from the acquisition."
Larsen & Toubro was followed in State Govt. House/ess
B
Harijan Employees' Association v. State of Karnataka [(2001)
1 SCC 61 O], wherein this Court heid :

"33. The section does not in terrns exclude the principles
of natural justice. However, the section has been construed
to exclude the owner's right to be heard before the c
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 D
costs in relation thereto, he will be paid compensation
)
thereof under Section 48(2) of the Act. (See Amamath
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 E
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
F
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."
G
23. The question which, however, falls for consideration is
+-
-,I 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 H
646 SUPREME COURT REPORTS [2009] 2 S.C.R. ~-

A required to be followed, may, however, decline grant of a relief, l-,
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
B
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
c 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
D parties.
{See N.K. Rajgarhia v. Mahavir Plantation Ltd. [(2006) 1
sec 502 paragraph 19]}
25. Judgment on consent in this case was passed only in
E 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
F 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
G can be issued was debated. The State of Uttar Pradesh has
been given opportunity after opportunity therefor. The Chief cl
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
H
,' CITY MONTESSORI SCHOOL V. 647
" STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

.,... the record that at any point of time it raised any p~otest. In fact, A
.I 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. B
In Nagubai Ammal & Ors. v. B. Shama Rao & Ors. [1956
-Jt 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 c
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 D
)- 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 E
-{ 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 _F
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.". G

'
~
+-
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
H
648 SUPREME COURT REPORTS [2009] 2 S.C.R.

A one application of the doctrine of election, and that its
operation must be confined to reliefs claimed in respect
of the same transaction and to the persons who are parties
thereto."

In C. Beepathumma & 'Ors. v. VS. Kadambofithaya &
8
Ors. [(1964) 5 SCR 836], this Court held :

"In view of the fact that in this way, Kun hi 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
c 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
D the lapse of 60 years from 1842. In our opinion, the doctrine
of election was properly applied i.n respect of Kunhi Pakki's ·i

1/4 share now in the possession of the present appellants
through Defendant 8."

E 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 Lorqships
F 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 _,
L,,
well a·ccepted principle that a party cannot both approbate
and reprobate. He cannot, to use the words of Honeyman
G
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
H
CITY MONTESSORI SCHOOL V. 649
STATE OF UTTAR PRADESH & ORS. [S.B. SINHA J.]

,.,. further advantage." See also per Lord Kenyon C.J. in A
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 B
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. C
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.
D
G.N. Appeal dismissed.