Madhya Pradesh High Court
Birju Singh Dhurvey vs M/S Hindustan Copper Ltd. ... on 4 May, 2023
Author: Gurpal Singh Ahluwalia
1 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 4nd OF MAY, 2023
MISCELLANEOUS PETITION No. 459 of 2022
BETWEEN:-
1. PHOOLESHWARI PANDRE W/O SHRI
TEERATH SINGH, AGED ABOUT 55
YEARS, OCCUPATION: AGRICULTURIST
CASTE GOND R/O VILLAGE LORA POST
KARAMSARA TEHSIL BIRSA DISTRICT
BALAGHAT (MADHYA PRADESH)
2. SHANKAR SINGH S/O SAMHARU SINGH,
AGED ABOUT 50 YEARS, OCCUPATION:
AGRICULTURE R/O VILLAGE LORA
POST KARAMSARA TEHSIL BIRSA
DISTRICT BALAGHAT (MADHYA
PRADESH)
3. SHYAMA BAI @ SANA BAI W/O SURAT,
AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURE R/O VILLAGE LORA
POST KARAMSARA TEHSIL BIRSA
DISTRICT BALAGHAT (MADHYA
PRADESH)
4. GAYATRI W/O MAHAR SINGH PANDRE,
AGED ABOUT 50 YEARS, OCCUPATION:
AGRICULTURE R/O VILLAGE LORA
POST KARAMSARA TEHSIL BIRSA
DISTRICT BALAGHAT (MADHYA
PRADESH)
.....PETITIONERS
(BY MS. C. VEDA RAO - ADVOCATE)
2 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
AND
M/S HINDUSTAN COPPER LTD.
MALAJKHAND COPPER PROJECT,
THROUGH ITS GENERAL MANAGER,
HINDUSTAN COPPER LTD. MALAJKHAND,
TEHSIL DEOSAR, DISTRICT BALAGHAT
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)
MISCELLANEOUS PETITION No. 461 of 2022
BETWEEN:-
ARJUN WALKE S/O SHRI MANGLU WALKE,
AGED ABOUT 46 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE RAHENGI, POST
KARAMSARA, TEHSIL BIRSA DIST.
BALAGHAT (MADHYA PRADESH)
.....PETITIONER
(BY MS. C. VEDA RAO - ADVOCATE)
AND
M/S HINDUSTAN COPPER LTD. THR. ITS
GENERAL MANAGER HINDUSTAN COPPER
LTD. MALAJKHAND COPPER PROJECT
MALAJKHAND TEHSIL DEOSAR DIST.
BALAGHAT (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)
MISCELLANEOUS PETITION No. 462 of 2022
BETWEEN:-
1. BIRJU SINGH DHURVEY S/O SHRI
HAGRU SINGH DHURVEY, AGED ABOUT
3 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
64 YEARS, OCCUPATION:
AGRICULTURE CASTE GOND R/O
VILLAGE RAHENGI POST KARAMSARA
TEHSIL BIRSA DISTRICT BALAGHAT
(MADHYA PRADESH)
2. SIRDU SINGH DHURVEY S/O SHRI
HAGRU SINGH DHURVEY, AGED ABOUT
60 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE
RAHENGI POST KARAMSARA TEHSIL
BIRSA DISTRICT BALAGHAT (MADHYA
PRADESH)
3. HIRDU SINGH DHURVEY S/O SHRI
HAGRU SINGH DHURVEY, AGED ABOUT
58 YEARS, OCCUPATION:
AGRICULTURIST R/O VILLAGE
RAHENGI POST KARAMSARA TEHSIL
BIRSA DISTRICT BALAGHAT M.P.
(MADHYA PRADESH)
.....PETITIONERS
(BY MS. C. VEDA RAO - ADVOCATE)
AND
M/S HINDUSTAN COPPER LTD.
MALAJKHAND COPPER PROJECT THROUGH
ITS GENERAL MANAGER HINDUSTAN
COPPER LTD. MALAJKHAND TEHSIL
DEOSAR DISTRICT BALAGHAT (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)
MISCELLANEOUS PETITION No. 464 of 2022
BETWEEN:-
4 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
1. SAHO PANDRE W/O LATE SABAL SINGH
PANDRE, AGED ABOUT 66 YEARS,
OCCUPATION: AGRICULTURE CASTE
GOND R/O VILLAGE RAHENGI POST
KARAMSARA TEHSIL BIRSA DISTRICT
BALAGHAT (MADHYA PRADESH)
2. MOM SINGH PANDRE S/O LATE SABAL
SINGH PANDRE, AGED ABOUT 45
YEARS, OCCUPATION: AGRICULTURE
VILLAGE RAHENGI POST KARAMSARA
TEH. BIRSA DIST. BALAGHAT (MADHYA
PRADESH)
3. TAM SINGH PANDRE S/O LATE SABAL
SINGH PANRE, AGED ABOUT 40 YEARS,
OCCUPATION: AGRICULTURE VILLAGE
RAHENGI POST KARAMSARA TEH.
BIRSA DIST. BALAGHAT MP (MADHYA
PRADESH)
4. RAJKUMAR PANDRE S/O LATE SABAL
SINGH PANDRE, AGED ABOUT 33
YEARS, OCCUPATION: AGRICULTURE
VILLAGE RAHENGI POST KARAMSARA
TEH. BIRSA DIST. BALAGHAT MP
(MADHYA PRADESH)
.....PETITIONERS
(BY MS. C. VEDA RAO - ADVOCATE)
AND
M/S HINDUSTAN COPPER LTD.
MALAJKHAND COPPER PROJECT THROUGH
ITS GENERAL MANAGER HINDUSTAN
COPPER LTD. MALAJKHAND TEHSIL
DEOSAR DISTRICT BALAGHAT M.P.
(MADHYA PRADESH)
.....RESPONDENT
5 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)
MISCELLANEOUS PETITION No. 465 of 2022
BETWEEN:-
1. MAN SINGH DHURVEY S/O LATE
BUDDHU DHURVEY, AGED ABOUT 65
YEARS, OCCUPATION: CASTE GOND
AGRICULTURIST VILLAGE BHEEMA
POST GUDMA TEH. BIRSA DIST.
BALAGHAT (MADHYA PRADESH)
2. SANTLAL DHURVEY S/O SUKMAN
DHURVEY, AGED ABOUT 45 YEARS,
OCCUPATION: AGRICULTURE VILLAGE
BHEEMA POST GUDMA TEH.BIRSA
DIST. BALAGHAT (MADHYA PRADESH)
3. SANTU DHURVEY S/O SUKMAN
DHURVEY, AGED ABOUT 38 YEARS,
OCCUPATION: AGRICULTURE VILLAGE
BHEEMA POST GUDMA TEH.BIRSA
DIST. BALAGHAT (MADHYA PRADESH)
4. ANTRAM DHURVEY S/O SUKMAN
DHURVEY, AGED ABOUT 42 YEARS,
OCCUPATION: AGRICULTURE VILLAGE
BHEEMA POST GUDMA TEH.BIRSA
DIST. BALAGHAT (MADHYA PRADESH)
.....PETITIONERS
(BY MS. C. VEDA RAO - ADVOCATE)
AND
1. M/S HINDUSTAN COPPER LTD. THR. ITS
GENERAL MANAGER HINDUSTAN
COPPER LTD. MALAJKHAND COPPER
PROJECT MALAJKHAND TEH. DEOSAR
DIST. BALAGHAT (MADHYA PRADESH)
6 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
2. STATE OF MADHYA PRADESH
THROUGH COLLECTOR BALAGHAT,
DISTRICT BALAGHAT (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI SUYASH MOHAN GURU - ADVOCATE)
MISCELLANEOUS PETITION No. 467 of 2022
BETWEEN:-
1. RAJENDRA SINGH AGED ABOUT 66
YEARS, S/O SHRI MOHAN SINGH,
CASTE-GOND, OCCUPATION -
AGRICULTURIST R/O VILLAGE -
RAHENGI, POST - KARAMSARA,
TEHSIL- BIRSA, DISTRICT - BALAGHAT
(MADHYA PRADESH)
2. NARESH CHANDRA S/O LATE PANCHAM
SINGH MERAVI, AGED ABOUT 65
YEARS, OCCUPATION: CASTE GOND,
AGRICULTURIST R/O VILLAGE -
RAHENGI, POST - KARAMSARA,
TEHSIL- BIRSA, DISTRICT - BALAGHAT
(MADHYA PRADESH)
3. LATA BAI W/O SHRI DHANESH MERAVI,
AGED ABOUT 50 YEARS, OCCUPATION:
CASTE GOND, AGRICULTURIST R/O
VILLAGE- RAHENGI, POST-
KARAMSARA, TEHSIL- BIRSA, DISTRICT
- BALAGHAT (MADHYA PRADESH)
4. MUKESH S/O LATE PANCHAM SINGH
MERAVI, AGED ABOUT 45 YEARS,
OCCUPATION: CASTE GOND,
AGRICULTURIST R/O VILLAGE-
RAHENGI, POST-KARAMSARA, TEHSIL-
BIRSA, DISTRICT - BALAGHAT
7 M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
(MADHYA PRADESH)
5. MAHESH S/O LATE PANCHAM SINGH
MERAVI, AGED ABOUT 40 YEARS,
OCCUPATION: CASTE GOND,
AGRICULTURIST R/O VILLAGE-
RAHENGI, POST-KARAMSARA, TEHSIL-
BIRSA, DISTRICT - BALAGHAT
(MADHYA PRADESH)
6. NANDLAL S/O LATE DEVI SINGH
DHURVEY, AGED ABOUT 65 YEARS,
OCCUPATION: CASTE GOND,
AGRICULTURIST R/O VILLAGE-
RAHENGI, POST-KARAMSARA, TEHSIL-
BIRSA, DISTRICT - BALAGHAT
(MADHYA PRADESH)
.....PETITIONERS
(BY MS. C. VEDA RAO - ADVOCATE)
AND
1. M/S HINDUSTAN COPPER LTD.
MALAJKHAND COPPER PROJECT
THROUGH ITS GENERAL MANAGER
HINDUSTAN COPPER LTD.
MALAJKHAND TEHSIL DEOSAR
DISTRICT BALAGHAT (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)
These petitions coming on for admission this day, the court passed
the following:
ORDER
By this common order, M.P. No.459/2022, M.P. No.461/2022,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
M.P. No.462/2022, M.P. No.464/2022, M.P. No.465/2022 & M.P.
No.467/2022 shall be decided. For the sake of convenience, the facts of
M.P. No.459/2022 shall be referred.
2. This Miscellaneous Petition under Article 227 of the Constitution
of India has been filed against the order dated 24/10/2020 passed by
Additional Collector Baihar, District Balaghat in Revenue Appeal Case
No.0029/Appeal/2019-20.
3. The facts necessary for disposal of the present petitions in short
are that certain pieces of land were acquired in the year 1977 for
establishment of the respondent - M/s Hindustan Copper Ltd.
Malajkhand Copper Project, Tehsil Deosar, District Balaghat. The draft
notification as well as the final notification issued under the Land
Acquisition Act was not challenged by the petitioners.
4. It is the case of the respondent that even the compensation fixed
by the Land Acquisition Officer was also accepted by the petitioners
without any protest. Jobs which were offered to the petitioners because
of the acquisition of their lands were also accepted. Thereafter, it
appears that under some misguided advice, the petitioners filed an
application before Sub-Divisional Officer that since the acquisition was
contrary to the provisions of Section 165(6) of M.P.L.R. Code,
therefore their land should be returned back.
5. It appears that the said application was allowed by SDO Baihar,
District Balaghat in case No.4/A-23/year 2017-18, however it is not out
of place to mention here that the copy of the order of SDO has not been
filed along with this petition.
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
6. Being aggrieved by the order passed by the SDO Baihar, District
Balaghat, the respondent preferred an Appeal before the Additional
Collector Baihar, District Balaghat which was registered as Revenue
Appeal No.29/Appeal/2019-20 and by order dated 24/10/2020, the
appeal has been allowed and the application filed by the petitioners on
the ground of violation of Section 165(6) of M.P.L.R. Code was
rejected.
7. Challenging the order passed by the Additional Collector, it is
submitted by the counsel for the petitioners that since the acquisition of
land was in violation of Section 165(6) of M.P.L.R. Code, therefore the
same is void. It is true that the petitioners did not challenge the
acquisition which took place in the year 1977 but the petition cannot be
dismissed on the ground of delay and laches because the void order can
be challenged at any point of time. It is further submitted that Section
165(6) of M.P.L.R. Code will include acquisition of land by the State
Government and therefore, they are entitled for return of their land.
8. Per contra, it is submitted by the counsel for the respondent that
final notification under Section 6 of Land Acquisition Act was issued
in the year 1977. The petitioners had accepted the compensation
without any protest. The jobs offered to the family members of the
owners were also accepted by the petitioners. Further, the petitioners
never challenged the acquisition proceedings. If the petitioners were
aggrieved by the draft notification or the final notification issued under
Section 4 or 6 of the Land Acquisition Act, then they should have
challenged the same then and there. The petitioners after having
accepted the compensation as well as the jobs in lieu of their land
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
which was acquired are estopped from asking for reversion of their
land on the ground of violation of Section 165(6) of M.P.L.R. Code. It
is further submitted that the provisions of Section 165(6) of M.P.L.R.
Code would not apply to the cases of acquisition. The counsel for the
respondent also relied upon the judgment passed by the Supreme Court
in the case of Balco Employees' Union (Regd.) Vs. Union of India
and Others reported in (2002) 2 SCC 333.
9. Heard the learned counsel for the parties.
Delay and laches
10. The undisputed facts are that the land of the petitioners or their
predecessors was acquired for establishment of the respondent
industry. The said acquisition was done by the State Government under
the orders of the Central Government. The petitioners have not
challenged the acquisition proceedings at all. Even in this
Miscellaneous Petition, the petitioners have not challenged the
notification issued under Section 6 of Land Acquisition Act. They filed
an application before SDO claiming that since they were deprived of
their lands in violation of Section 165(6) of M.P.L.R. Code, therefore
they are entitled for reversion of their lands.
11. The counsel for the petitioners could not point out as to how the
SDO can set aside the notification issued under Section 6 of Land
Acquisition Act? Unless and until the final notification issued under the
Land Acquisition Act is set aside, the petitioners cannot get any relief.
No reason much less sufficient reason has been assigned by the
petitioners as to why they did not challenge the acquisition proceedings
for the last 45 years.
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
12. It is well established principle of law that the delay and laches
defeats equity.
13. The Supreme Court in the case of Union of India and others
Vs. C. Girija and others reported in (2019) 15 SCC 633 has held as
under:
16. This Court had occasion to consider
the question of cause of action in reference to
grievances pertaining to service matters.
This Court in C. Jacob v. Director of
Geology and Mining [C. Jacob v. Director
of Geology and Mining, (2008) 10 SCC 115 :
(2008) 2 SCC (L&S) 961] had occasion to
consider the case where an employee was
terminated and after decades, he filed a
representation, which was decided. After
decision of the representation, he filed an OA
in the Tribunal, which was entertained and
order was passed. In the above context, in
para 9, following has been held : (SCC pp.
122-23)
"9. The courts/tribunals proceed on
the assumption, that every citizen
deserves a reply to his representation.
Secondly, they assume that a mere
direction to consider and dispose of the
representation does not involve any
"decision" on rights and obligations of
parties. Little do they realise the
consequences of such a direction to
"consider". If the representation is
considered and accepted, the ex-
employee gets a relief, which he would
not have got on account of the long
delay, all by reason of the direction to
"consider". If the representation is
considered and rejected, the ex-
employee files an application/writ
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
petition, not with reference to the
original cause of action of 1982, but by
treating the rejection of the
representation given in 2000, as the
cause of action. A prayer is made for
quashing the rejection of representation
and for grant of the relief claimed in the
representation. The tribunals/High
Courts routinely entertain such
applications/ petitions ignoring the huge
delay preceding the representation, and
proceed to examine the claim on merits
and grant relief. In this manner, the bar of
limitation or the laches gets obliterated or
ignored."
17. This Court again in Union
of India v. M.K. Sarkar [Union of India v.
M.K. Sarkar, (2010) 2 SCC 59 : (2010) 1
SCC (L&S) 1126] on belated representation
laid down following, which is extracted
below : (SCC p. 66, para 15)
"15. When a belated representation
in regard to a "stale" or "dead"
issue/dispute is considered and decided,
in compliance with a direction by the
court/tribunal to do so, the date of such
decision cannot be considered as
furnishing a fresh cause of action for
reviving the "dead" issue or time-barred
dispute. The issue of limitation or delay
and laches should be considered with
reference to the original cause of action
and not with reference to the date on
which an order is passed in compliance
with a court's direction. Neither a court's
direction to consider a representation
issued without examining the merits, nor
a decision given in compliance with such
direction, will extend the limitation, or
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
erase the delay and laches."
14. The Supreme Court in the case of Karnataka Power Corpon.
Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 has held as
under :
6. Delay or laches is one of the factors
which is to be borne in mind by the High
Court when they exercise their discretionary
powers under Article 226 of the Constitution.
In an appropriate case the High Court may
refuse to invoke its extraordinary powers if
there is such negligence or omission on the
part of the applicant to assert his right as
taken in conjunction with the lapse of time
and other circumstances, causes prejudice to
the opposite party. Even where fundamental
right is involved the matter is still within the
discretion of the Court as pointed out in
Durga Prashad v. Chief Controller of
Imports and Exports. Of course, the
discretion has to be exercised judicially and
reasonably.
7. What was stated in this regard by Sir
Barnes Peacock in Lindsay Petroleum Co. v.
Prosper Armstrong Hurd (PC at p. 239) was
approved by this Court in Moon Mills Ltd.
v. M.R. Meher and Maharashtra SRTC v.
Shri Balwant Regular Motor Service. Sir
Barnes had stated:
"Now, the doctrine of laches in courts
of equity is not an arbitrary or a
technical doctrine. Where it would be
practically unjust to give a remedy
either because the party has, by his
conduct done that which might fairly
be regarded as equivalent to a waiver
of it, or where by his conduct and
neglect he has though perhaps not
waiving that remedy, yet put the other
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
party in a situation in which it would
not be reasonable to place him if the
remedy were afterwards to be
asserted, in either of these cases, lapse
of time and delay are most material.
But in every case, if an argument
against relief, which otherwise would
be just, is founded upon mere delay,
that delay of course not amounting to
a bar by any statute of limitation, the
validity of that defence must be tried
upon principles substantially
equitable. Two circumstances always
important in such cases are, the length
of the delay and the nature of the acts
done during the interval which might
affect either party and cause a balance
of justice or injustice in taking the one
course or the other, so far as it relates
to the remedy."
8. It would be appropriate to note
certain decisions of this Court in which this
aspect has been dealt with in relation to
Article 32 of the Constitution. It is apparent
that what has been stated as regards that
article would apply, a fortiori, to Article
226. It was observed in Rabindranath Bose
v. Union of India that no relief can be given
to the petitioner who without any reasonable
explanation approaches this Court under
Article 32 after inordinate delay. It was
stated that though Article 32 is itself a
guaranteed right, it does not follow from this
that it was the intention of the Constitution-
makers that this Court should disregard all
principles and grant relief in petitions filed
after inordinate delay.
9. It was stated in State of M.P. v. Nandlal
Jaiswal that the High Court in exercise of
its discretion does not ordinarily assist the
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
tardy and the indolent or the acquiescent and
the lethargic. If there is inordinate delay on
the part of the petitioner and such delay is
not satisfactorily explained, the High Court
may decline to intervene and grant relief in
exercise of its writ jurisdiction. It was stated
that this rule is premised on a number of
factors. The High Court does not ordinarily
permit a belated resort to the extraordinary
remedy because it is likely to cause
confusion and public inconvenience and
bring, in its train new injustices, and if writ
jurisdiction is exercised after unreasonable
delay, it may have the effect of inflicting not
only hardship and inconvenience but also
injustice on third parties. It was pointed out
that when writ jurisdiction is invoked,
unexplained delay coupled with the creation
of third-party rights in the meantime is an
important factor which also weighs with the
High Court in deciding whether or not to
exercise such jurisdiction.
15. The Supreme Court in the case of M.P. Ram Mohan Raja Vs.
State of T.N. Reported in (2007) 9 SCC 78 has held as under :
11. So far as the question of delay is concerned, no
hard-and- fast rule can be laid down and it will
depend on the facts of each case. In the present case,
the facts stare at the face of it that on 8-10-1996 an
order was passed by the Collector in pursuance of the
order passed by the High Court, rejecting the
application of the writ petitioner for consideration of
the grant of mining lease. The writ petitioner sat tight
over the matter and did not challenge the same up to
2003. This on the face of it appears to be very serious.
A person who can sit tight for such a long time for no
justifiable reason, cannot be given any benefit.
16. The Supreme Court in the case of Shiv Dass Vs. Union of India
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
reported in (2007) 9 SCC 274 has held as under :
6. Normally, in the case of belated approach
writ petition has to be dismissed. Delay or laches is
one of the factors to be borne in mind by the High
Courts when they exercise their discretionary powers
under Article 226 of the Constitution of India. In an
appropriate case the High Court may refuse to invoke
its extraordinary powers if there is such negligence or
omission on the part of the applicant to assert his
right as taken in conjunction with the lapse of time
and other circumstances, causes prejudice to the
opposite party. Even where fundamental right is
involved the matter is still within the discretion of the
Court as pointed out in Durga Prashad v. Chief
Controller of Imports and Exports. Of course, the
discretion has to be exercised judicially and
reasonably.
7. What was stated in this regard by Sir
Barnes Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd, PC at p. 239 was approved by this
Court in Moon Mills Ltd. v.
M.R. Meher and Maharashtra SRTC v. Balwant
Regular Motor Service. Sir Barnes had stated:
"Now the doctrine of laches in courts of equity
is not an arbitrary or technical doctrine. Where it
would be practically unjust to give a remedy
either because the party has, by his conduct
done that which might fairly be regarded as
equivalent to a waiver of it, or where by his
conduct and neglect he has though perhaps not
waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to
place him if the remedy were afterwards to be
asserted, in either of these cases, lapse of time
and delay are most material. But in every case, if
an argument against relief, which otherwise
would be just, if founded upon mere delay, that
delay of course not amounting to a bar by any
statute of limitation, the validity of that defence
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
must be tried upon principles substantially
equitable. Two circumstances always important
in such cases are, the length of the delay and the
nature of the acts done during the interval which
might affect either party and cause a balance of
justice or injustice in taking the one course or
the other, so far as relates to the remedy."
8. It was stated in State of M.P. v. Nandlal
Jaiswal that the High Court in exercise of its
discretion does not ordinarily assist the tardy and
the indolent or the acquiescent and the lethargic.
If there is inordinate delay on the part of the
petitioner and such delay is not satisfactorily
explained, the High Court may decline to
intervene and grant relief in exercise of its writ
jurisdiction. It was stated that this rule is
premised on a number of factors. The High
Court does not ordinarily permit a belated resort
to the extraordinary remedy because it is likely
to cause confusion and public inconvenience and
bring in its train new injustices, and if writ
jurisdiction is exercised after unreasonable
delay, it may have the effect of inflicting not
only hardship and inconvenience but also
injustice on third parties. It was pointed out that
when writ jurisdiction is invoked, unexplained
delay coupled with the creation of third-party
rights in the meantime is an important factor
which also weighs with the High Court in
deciding whether or not to exercise such
jurisdiction.
17. The Supreme Court in the case of Nadia Distt. Primary School
Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has
held as under :
11. In the present case, the panel was
prepared in 1980 and the petitioners approached
the court in 1989 after the decision in Dibakar
Pal. Such persons should not be given any
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
benefit by the court when they allowed more
than nine years to elapse. Delay is very
significant in matters of granting relief and
courts cannot come to the rescue of the persons
who are not vigilant of their rights. Therefore,
the view taken by the High Court condoning the
delay of nine years cannot be countenanced.
18. The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant
Singh reported in (2006) 11 SCC 464 has held as under :
12. The statement of law has also been
summarised in Halsbury's Laws of England,
para 911, p. 395 as follows: "In determining
whether there has been such delay as to
amount to laches, the chief points to be
considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has
occurred on the defendant's part.
Acquiescence in this sense does not mean
standing by while the violation of a right is in
progress, but assent after the violation has been
completed and the claimant has become aware
of it. It is unjust to give the claimant a remedy
where, by his conduct, he has done that which
might fairly be regarded as equivalent to a
waiver of it; or where by his conduct and
neglect, though not waiving the remedy, he has
put the other party in a position in which it
would not be reasonable to place him if the
remedy were afterwards to be asserted. In such
cases lapse of time and delay are most material.
Upon these considerations rests the doctrine of
laches."
19. The Supreme Court in the case of Jagdish Lal Vs. State of
Haryana reported in (1997) 6 SCC 538 has held as under :
18. That apart, as this Court has repeatedly held,
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
the delay disentitles the party to the discretionary
relief under Article 226 or Article 32 of the
Constitution.
20. The Supreme Court in the case of NDMC Vs. Pan Singh
reported in (2007) 9 SCC 278 has held as under :
16. There is another aspect of the matter
which cannot be lost sight of. The respondents herein
filed a writ petition after 17 years. They did not
agitate their grievances for a long time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the
reference made by the State before the Industrial
Tribunal. It is not their case that after 1982, those
employees who were employed or who were recruited
after the cut-off date have been granted the said scale
of pay. After such a long time, therefore, the writ
petitions could not have been entertained even if they
are similarly situated. It is trite that the discretionary
jurisdiction may not be exercised in favour of those
who approach the court after a long time. Delay and
laches are relevant factors for exercise of equitable
jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P.
Jal Nigam v. Jaswant Singh and Karnataka Power
Corpn. Ltd. v. K. Thangappan.)
17. Although, there is no period of limitation
provided for filing a writ petition under Article 226 of
the Constitution of India, ordinarily, writ petition
should be filed within a reasonable time. (See Lipton
India Ltd. v. Union of India and
M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court
held: (SCC p. 277, paras 9-10)
"9. It has been pointed out by this Court in a
number of cases that representations would not
be adequate explanation to take care of delay.
This was first stated in
K.V. Rajalakshmiah Setty v. State of Mysore.
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
There is a limit to the time which can be
considered reasonable for making
representations and if the Government had
turned down one representation the making of
another representation on similar lines will not
explain the delay. In State of Orissa v.
Pyarimohan Samantaray making of repeated
representations was not regarded as satisfactory
explanation of the delay. In that case the petition
had been dismissed for delay alone. (See also
State of Orissa v. Arun Kumar Patnaik.)
10. In the case of pension the cause of action
actually continues from month to month. That,
however, cannot be a ground to overlook delay
in filing the petition. It would depend upon the
fact of each case. If petition is filed beyond a
reasonable period say three years normally the
Court would reject the same or restrict the relief
which could be granted to a reasonable period of
about three years. The High Court did not
examine whether on merit the appellant had a
case. If on merits it would have found that there
was no scope for interference, it would have
dismissed the writ petition on that score alone."
19. We, therefore, are of the opinion that it
was not a fit case where the High Court should have
exercised its discretionary jurisdiction in favour of the
respondents herein.
21. The Supreme Court in the case of State of Uttaranchal v. Shiv
Charan Singh Bhandari reported in (2013) 12 SCC 179 has held as
under :
19. From the aforesaid authorities it is clear as
crystal that even if the court or tribunal directs for
consideration of representations relating to a stale
claim or dead grievance it does not give rise to a
fresh cause of action. The dead cause of action
cannot rise like a phoenix. Similarly, a mere
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
submission of representation to the competent
authority does not arrest time.
****
28. Remaining oblivious to the factum of delay
and laches and granting relief is contrary to all settled
principles and even would not remotely attract the
concept of discretion. We may hasten to add that the
same may not be applicable in all circumstances
where certain categories of fundamental rights are
infringed. But, a stale claim of getting promotional
benefits definitely should not have been entertained
by the Tribunal and accepted by the High Court.
22. The Supreme Court in the case of C. Jacob v. Director of
Geology and Mining reported in (2008) 10 SCC 115 has held as
under :
"10. Every representation to the Government
for relief, may not be replied on merits.
Representations relating to matters which have
become stale or barred by limitation, can be rejected
on that ground alone, without examining the merits of
the claim. In regard to representations unrelated to the
Department, the reply may be only to inform that the
matter did not concern the Department or to inform
the appropriate Department. Representations with
incomplete particulars may be replied by seeking
relevant particulars. The replies to such
representations, cannot furnish a fresh cause of action
or revive a stale or dead claim."
23. The Supreme Court in the case of Union of India v. M.K.
Sarkar reported in (2010) 2 SCC 59 has held as under :
"15. When a belated representation in regard to
a 'stale' or 'dead' issue/dispute is considered and
decided, in compliance with a direction by the
court/tribunal to do so, the date of such decision
cannot be considered as furnishing a fresh cause of
action for reviving the 'dead' issue or time- barred
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
dispute. The issue of limitation or delay and laches
should be considered with reference to the original
cause of action and not with reference to the date on
which an order is passed in compliance with a court's
direction. Neither a court's direction to consider a
representation issued without examining the merits,
nor a decision given in compliance with such
direction, will extend the limitation, or erase the
delay and laches."
24. The Supreme Court in the case of State of Orissa v.
Pyarimohan Samantaray reported in (1977) 3 SCC 396 has held as
under :
6. It would thus appear that there is
justification for the argument of the Solicitor-
General that even though a cause of action arose to
the petitioner as far back as 1962, on the rejection of
his representation on November 9, 1962, he allowed
some eleven years to go by before filing the writ
petition. There is no satisfactory explanation of the
inordinate delay for, as has been held by this Court in
Rabindra Nath Bose v. Union of India the making of
repeated representations, after the rejection of one
representation, could not be held to be a satisfactory
explanation of the delay. The fact therefore remains
that the petitioner allowed some 11 years to go by
before making a petition for the redress of his
grievances. In the meantime a number of other
appointments were also made to the Indian
Administrative Service by promotion from the State
Civil Service, some of the officers received
promotions to higher posts in that service and may
even have retired. Those who continued to serve
could justifiably think that as there was no challenge
to their appointments within the period prescribed for
a suit, they could look forward to further promotion
and higher terminal benefits on retirement. The High
Court therefore erred in rejecting the argument that
the writ petition should be dismissed because of the
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
inordinate and unexplained delay even though it was
"strenuously" urged for its consideration on behalf of
the Government of India.
25. The Supreme Court in the case of State of Orissa v. Arun
Kumar Patnaik reported in (1976) 3 SCC 579 has held as under :
14. It is unnecessary to deal at length with the
State's contention that the writ petitions were filed in
the High Court after a long delay and that the writ
petitioners are guilty of laches. We have no doubt that
Patnaik and Mishra brought to the court a grievance
too stale to merit redress. Krishna Moorthy's
appointment was gazetted on March 14, 1962 and it
is incredible that his service-horoscope was not
known to his possible competitors. On November 15,
1968 they were all confirmed as Assistant Engineers
by a common gazette notification and that
notification showed Krishna Moorthy's confirmation
as of February 27, 1961 and that of the other two as
of May 2, 1962. And yet till May 29, 1973 when the
writ petitions were filed, the petitioners did nothing
except to file a representation to the Government on
June 19, 1970 and a memorial to the Governor on
April 16, 1973. The High Court made light of this
long and inexplicable delay with a casual remark that
the contention was "without any force". It overlooked
that in June, 1974 it was setting aside an appointment
dated March, 1962 of a person who had in the
meanwhile risen to the rank of a Superintending
Engineer. Those 12 long years were as if writ in
water. We cannot but express our grave concern that
an extraordinary jurisdiction should have been
exercised in such an abject disregard of consequences
and in favour of persons who were unmindful of their
so-called rights for many long years.
26. The Supreme Court in the case of BSNL v. Ghanshyam
Dass reported in (2011) 4 SCC 374 has held as under :
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
26. On the other hand, where only the
affected parties approach the court and relief is given
to those parties, the fence-sitters who did not
approach the court cannot claim that such relief
should have been extended to them thereby upsetting
or interfering with the rights which had accrued to
others.
27. In Jagdish Lal v. State of Haryana, the
appellants who were general candidates belatedly
challenged the promotion of Scheduled Caste and
Scheduled Tribe candidates on the basis of the
decisions in Ajit Singh Januja v. State of Punjab,
Union of India v. Virpal Singh Chauhan and R.K.
Sabharwal v. State of Punjab and this Court refused
to grant the relief saying: (Jagdish Lal case, SCC pp.
562-63, para 18)
"18. ... this Court has repeatedly held, the
delay disentitles the party to the discretionary
relief under Article 226 or Article 32 of the
Constitution. It is not necessary to reiterate all
the catena of precedents in this behalf. Suffice it
to state that the appellants kept sleeping over
their rights for long and elected to wake up
when they had the impetus from Virpal Chauhan
and Ajit Singh ratios. But Virpal Chauhan and
Sabharwal cases, kept at rest the promotion
already made by that date, and declared them as
valid; they were limited to the question of future
promotions given by applying the rule of
reservation to all the persons prior to the date of
judgment in Sabharwal case which required to
be examined in the light of the law laid in
Sabharwal case. Thus earlier promotions cannot
be reopened. Only those cases arising after that
date would be examined in the light of the law
laid down in Sabharwal case and Virpal
Chauhan case and equally Ajit Singh case. If the
candidate has already been further promoted to
the higher echelons of service, his seniority is
not open to be reviewed. In A.B.S. Karamchari
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
Sangh case a Bench of two Judges to which two
of us, K. Ramaswamy and G.B. Pattanaik, JJ.
were members, had reiterated the above view
and it was also held that all the prior promotions
are not open to judicial review. In Chander Pal
v. State of Haryana a Bench of two Judges
consisting of S.C. Agrawal and G.T. Nanavati,
JJ. considered the effect of Virpal Chauhan, Ajit
Singh, Sabharwal and A.B.S. Karamchari Sangh
cases and held that the seniority of those
respondents who had already retired or had been
promoted to higher posts could not be disturbed.
The seniority of the petitioner therein and the
respondents who were holding the post in the
same level or in the same cadre would be
adjusted keeping in view the ratio in Virpal
Chauhan and Ajit Singh; but promotion, if any,
had been given to any of them during the
pendency of this writ petition was directed not
to be disturbed."
27. Under these circumstances, this Court is of the considered
opinion that an adventurous attempt made on the part of the petitioners
to adopt an indirect method to get the acquisition nullified after 45
years of acquisition of their lands suffers from delay and laches and
accordingly, the petition is liable to be dismissed on the said ground
only. However, it is submitted by the counsel for the petitioners that
other grounds may also be considered.
Whether void/ voidable order is to be challenged or not?
28. It is next contended by the counsel for the petitioners that when
an order is a void order, then it can be challenged at any point of time
and question of delay and laches would not apply.
29. Heard the learned counsel for the petitioners.
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
30. Whether an order is void/ voidable or not is not to be assessed by
the litigant on his own and he cannot sit over the matter under a false
impression that since an order is voidable or void under his assessment,
therefore he is not suppose to challenge the same.
31. The Supreme court in the case of M. Meenakshi v. Metadin
Agarwal, reported in (2006) 7 SCC 470 has held as under :
"17. The competent authority under the 1976 Act
was not impleaded as a party in the suit. The
orders passed by the competent authority therein
could not have been the subject-matter thereof.
The plaintiff although being a person aggrieved
could have questioned the validity of the said
orders, did not chose to do so. Even if the orders
passed by the competent authorities were bad in
law, they were required to be set aside in an
appropriate proceeding. They were not the subject-
matter of the said suit and the validity or otherwise
of the said proceeding could not have been gone
into therein and in any event for the first time in
the letters patent appeal."
(Underline supplied)
32. The Supreme Court in the case of Anita International v.
Tungabadra Sugar Works Mazdoor Sangh, reported in (2016) 9 SCC
44 has held as under :
"54. We are also of the considered view, as held
by the Court in Krishnadevi Malchand Kamathia
case, that it is not open either to parties to a lis or
to any third parties to determine at their own that
an order passed by a court is valid or void. A party
to the lis or a third party who considers an order
passed by a court as void or non est, must
approach a court of competent jurisdiction to have
the said order set aside on such grounds as may be
available in law. However, till an order passed by a
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
competent court is set aside as was also held by
this Court in Official Liquidator and Jehal Tanti
cases, the same would have the force of law, and
any act/action carried out in violation thereof
would be liable to be set aside. We endorse the
opinion expressed by this Court in Jehal Tanti
case. In the above case, an earlier order of a court
was found to be without jurisdiction after six
years. In other words, an order passed by a court
having no jurisdiction had subsisted for six years.
This Court held that the said order could not have
been violated while it subsisted. And further that
the violation of the order before it is set aside is
liable to entail punishment for its disobedience.
For us to conclude otherwise may have disastrous
consequences. In the above situation, every
cantankerous and quarrelsome litigant would be
entitled to canvass that in his wisdom the judicial
order detrimental to his interests was void,
voidable, or patently erroneous. And based on such
plea, to avoid or disregard or even disobey the
same. This course can never be permitted."
33. The Supreme Court in the case of Krishnadevi Malchand
Kamathia v. Bombay Environmental Action Group, reported in (2011)
3 SCC 363 has held as under :
"16. It is a settled legal proposition that even if an
order is void, it requires to be so declared by a
competent forum and it is not permissible for any
person to ignore the same merely because in his
opinion the order is void. In State of Kerala v.
M.K. Kunhikannan Nambiar Manjeri Manikoth
Naduvil, Tayabbhai M. Bagasarwalla v. Hind
Rubber Industries (P) Ltd., M. Meenakshi v.
Metadin Agarwal and Sneh Gupta v. Devi Sarup,
this Court held that whether an order is valid or
void, cannot be determined by the parties. For
setting aside such an order, even if void, the party
has to approach the appropriate forum."
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
34. Therefore, if the petitioners were of the view that acquisition is
void for any good or bad reason, then they should have assailed the
same and cannot sit over the same under a false impression that since
under their assessment the order is void, therefore they are not suppose
to assail the same.
Estoppel
35. The undisputed facts are that after the land was acquired, the
compensation was fixed and it was also decided that a family member
of the owner will be provided service in the establishment. It is the case
of the respondent that the compensation was accepted by the petitioners
without any protest and even the jobs which were offered to their
family members were also accepted. Thus, after having accepted the
compensation as well as the jobs offered in lieu of the acquisition of
their land, this Court is of the considered opinion that now the
petitioners are estopped from challenging the proceedings and in fact
they have waived their right to assail the acquisition proceedings.
36. The Supreme Court in the case of M.T.W. Tenzing Namgyal
and Others Vs. Motilal Lakhotia and Others reported in (2003) 5
SCC 1 has held as under:-
"28. The other documents referred to
hereinbefore, namely, Exhibits D-7, D-14 and D-
23 to D-23/12 are also clear pointers to the fact
that certain properties over which the late
Chogyal of Sikkim had been claiming right as its
private estate were acquired by the Sikkim
Darbar of which he was the head. The owner of
the land accepted the amount of compensation
without any demur whatsoever and in that view
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
of the matter he as well as his successors-in-
interest are estopped and precluded from
contending that the said properties did not vest in
the Sikkim Darbar and consequently, in the
Government of India."
37. The Supreme Court in the case of Kedar Shashikant
Deshpande and Others Vs. Bhor Municipal Council and Others
reported in (2011) 2 SCC 654 has held as under:-
"29. It is well settled that if a person has
submitted to the jurisdiction of the authority, he
cannot challenge the proceedings, on the ground
of lack of jurisdiction of the said authority in
further appellate proceedings. Had this plea, been
raised before the Additional Collector, the
respondents would have got the opportunity to
place on record notification issued under the
provisions of the Maharashtra Land Revenue
Code, 1966 to establish that the Additional
Collector was delegated the powers of the
Collector and was competent to decide the
disqualification petition."
38. The Supreme Court in the case of State of Punjab and Others
Vs. Dhanjit Singh Sandhu reported in (2014) 15 SCC 144 has held as
under:-
"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 CIT v. V. MR. P. Firm Muar, AIR
1965 SC 1216)
23. 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
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
benefit out of it, he cannot challenge it on any
ground. (Vide Maharashtra SRTC v. Balwant
Regular Motor Service, AIR 1969 SC 329)
In R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC
683 this Court has observed as under : (SCC pp.
687-88, para 10)
"10. 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'."
24. This Court in Babu Ram v. Indra Pal
Singh, (1998) 6 SCC 358 and P.R.
Deshpande v. Maruti Balaram Haibatti, (1998) 6
SCC 507], has observed that : (P.R. Deshpande
case, SCC p. 511, para 8)
"8. 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."
25. The Supreme Court in Rajasthan State
Industrial Development and Investment
Corpn. v. Diamond and Gem Development
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
Corpn. Ltd. (2013) 5 SCC 470 : (2013) 3 SCC
(Civ) 153, 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.
26. 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."
39. The Supreme Court in the case of Rajasthan State Industrial
Development and Investment Corporation and Another Vs.
Diamond & Gem Development Corporation Limited and Another
reported in (2013) 5 SCC 470 has held as under:-
"15. A party cannot be permitted to "blow hot-
blow cold", "fast and loose" or "approbate and
reprobate". Where one knowingly accepts the
benefits of a contract, or conveyance, or of an
order, he is estopped from denying the validity
of, or the binding effect of such contract, or
conveyance, or order upon himself. This rule is
applied to ensure equity, however, it must not be
applied in such a manner so as to violate the
principles of what is right and of good
conscience. [Vide Nagubai Ammal v. B. Shama
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
Rao [AIR 1956 SC 593] , CIT v. V. MR. P. Firm
Muar [AIR 1965 SC 1216], Ramesh Chandra
Sankla v. Vikram Cement [(2008) 14 SCC 58 :
(2009) 1 SCC (L&S) 706 : AIR 2009 SC
713], Pradeep Oil Corpn. v. MCD [(2011) 5
SCC 270], Cauvery Coffee Traders v. Hornor
Resources (International) Co. Ltd. [(2011) 10
SCC 420 : (2012) 3 SCC (Civ) 685] and V.
Chandrasekaran v. Administrative Officer (2012)
12 SCC 133.]"
40. The Supreme Court in the case of Bhagwat Sharan (Dead
Through Legal Representatives) Vs. Purushottam and Others
reported in (2020) 6 SCC 387 has held as under:-
"27. The doctrine of election is a facet of law of
estoppel. A party cannot blow hot and blow cold
at the same time. Any party which takes
advantage of any instrument must accept all that
is mentioned in the said document. It would be
apposite to refer to the treatise Equity--A Course
of Lectures by F.W. Maitland, Cambridge
University, 1947, wherein the learned author
succinctly described principle of election in the
following terms:
"The doctrine of election may be
thus stated : that he who accepts a
benefit under a deed or will or other
instrument must adopt the whole
contents of that instrument, must
conform to all its provisions and
renounce all rights that are
inconsistent with it...."
This view has been accepted to be the correct
view in Karam Kapahi v. Lal Chand Public
Charitable Trust, (2010) 4 SCC 753 : (2010) 2
SCC (Civ) 262. The plaintiff having elected to
accept the will of Hari Ram, by filing a suit for
eviction of the tenant by claiming that the
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
property had been bequeathed to him by Hari
Ram, cannot now turn around and say that the
averments made by Hari Ram that the property
was his personal property, is incorrect."
41. The Supreme Court in the case of Kamaljit Singh Vs. Sarabjit
Singh reported in (2014) 16 SCC 472 has held as under:-
"10. It is evident from the above that the
respondent does not dispute either the jural
relationship of landlord and tenant between the
parties or the rate of rent settled between them.
All that the respondent has asserted is that he has
been in possession of the shop since the year
1992 and not since 1989 as asserted by the
appellant. It is also not the case of the respondent
that he is the owner of the suit shop or that he
had taken the same on rent from anyone other
than the appellant. Such being the position, the
question is whether the respondent can dispute
the title of the appellant over the shop assuming
that he was let in possession by the appellant in
the year 1992 as asserted by him and not in the
year 1989. Our answer is in the negative. We say
so because once the respondent admits that he
has been let in possession as a tenant by the
appellant in the year 1992 i.e. more than 10 years
before the filing of the eviction petition, the
requirement of the appellant being owner of the
property for more than five years within the
meaning of Section 13-B (supra) would stand
satisfied. The respondent would then be estopped
from denying the title of the appellant during the
continuance of the benefit that he is drawing
under the transaction, between him and the
appellant. It is trite that the doctrine of estoppel
is steeped in the principles of equity and good
conscience. Equity will not allow a person to say
one thing at one time and the opposite of it at
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
another time. It would estop him from denying
his previous assertion, act, conduct or
representation to say something contrary to what
was implied in the transaction under which he
obtained the benefit of being let in possession of
the property to be enjoyed by him as a tenant."
42. The Supreme Court in the case of Sunderabai w/o Devrao
Deshpande and another Vs. Devaji Shankar Deshpande reported in
(1952) 2 SCC 92 has held as under:-
"17. Estoppel is a rule of evidence and the
general rule is enacted in Section 115 of the
Evidence Act which lays down that when one
person has by his declaration, act or omission
caused or permitted another person to believe a
thing to be true and to act upon such belief
neither he nor his representative shall be allowed
in any suit or proceeding between himself and
such person or his representative to deny the
truth of that thing. This is the rule of estoppel by
conduct as distinguished from an estoppel by
record which constitutes the bar of "res judicata".
The estoppel in this case was pleaded by
Defendant 1 in the manner following in Para 6 of
her written statement:
"The plaintiff's claim is also barred by
estoppel as he received Rs 8000 as a
consideration for accepting the terms
of compromise from the defendant. As
the compromise was lawful and as he
induced the defendant to pay Rs 8000
on the understanding that Gangabai
lost her right to adopt and he would
never raise any dispute, he is estopped
from contending that Gangabai had not
lost her right to adopt." "
43. The Supreme Court in the case of Jai Narain Parasrampuria
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
(Dead) and others Vs. Pushpa Devi Saraf and Others reported in
(2006) 7 SCC 756 has held as under:-
"33. While applying the procedural law like the
principle of estoppel or acquiescence, the court
would be concerned with the conduct of a party
for determination as to whether he can be
permitted to take a different stand in a
subsequent proceeding, unless there exists a
statutory interdict. If the principle of estoppel
applies, Sarafs will not be permitted by a court of
law to raise the contention that the Company was
not the owner of the property.
41. The doctrine of estoppel by acquiescence was
not restricted to cases where the representor was
aware both of what his strict rights were and that
the representee was acting on the belief that
those rights would not be enforced against him.
Instead, the court was required to ascertain
whether in the particular circumstances, it would
be unconscionable for a party to be permitted to
deny that which, knowingly or unknowingly, he
had allowed or encouraged another to assume to
his detriment. Accordingly, the principle would
apply if at the time the expectation was
encouraged (sic). (See also Taylor Fashions
Ltd. v. Liverpool Victoria Trustees Co.
Ltd. [(1981) 1 All ER 897 : (1981) 2 WLR 576 :
1982 QB 133 (Ch D)])"
44. The Supreme Court in the case of Krishna Bahadur Vs. Purna
Theatre and Others reported in (2004) 8 SCC 229 has held as under:-
"9. The principle of waiver although is akin to the
principle of estoppel; the difference between the
two, however, is that whereas estoppel is not a
cause of action; it is a rule of evidence; waiver is
contractual and may constitute a cause of action;
it is an agreement between the parties and a party
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
fully knowing of its rights has agreed not to assert
a right for a consideration."
Whether acquisition proceedings are covered under Section 165(6)
of M.P.L.R. Code or not?
45. It is submitted by the counsel for the petitioners that Section 165
of M.P.L.R. Code speaks about transfer or otherwise, therefore
acquisition will be covered by the word "otherwise" and since no
permission was obtained from the Collector under Section 165(6) of
M.P.L.R. Code, therefore the acquisition of the land is bad.
46. Section 165(6) of M.P.L.R. Code has been incorporated to
protect the innocent members of aboriginal tribe from the clutches of
the unscrupulous persons. The very fact that the land belonging to the
members of aboriginal tribe was transferrable only after obtaining
permission from the Collector clearly shows that the legislature wanted
to put a check on the transactions regarding the lands belonging to the
aboriginal tribes so that they may not be defrauded by the unscrupulous
persons.
47. In the present case, the Collector himself was involved in the
acquisition of land. The LAO had decided the compensation amount. If
the owner of the land is not satisfied with the compensation amount so
fixed by the Land Acquisition Officer, then he has a right to file an
application under Section 18 of Land Acquisition Act seeking
reference to the District Court. The District Court after recording
evidence is empowered to enhance the compensation amount if it
comes to a conclusion that the LAO has not awarded the sufficient
compensation amount. Therefore, the procedure as laid down under the
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
Land Acquisition Act itself take cares of the interest of the holders of
land whether belonging to aboriginal tribe or not. When the Collector
himself was involved in the acquisition then there was no need for the
State Government to obtain permission from the Collector. Before
granting permission the Collector is only required to see as to whether
the proposed transaction is in accordance with the market value or not
and whether the holder of the land who is a member of aboriginal tribe
is being defrauded or not. In nutshell, the basic purpose is to save the
members of aboriginal tribe from any fraud. Here when multiple
checks have been provided under the Land Acquisition Act and the
acquisition was being done by the State Government itself, this Court is
of the considered opinion that the submission that even the acquisition
will be covered under Section 165(6) of M.P.L.R. Code cannot be
accepted. Even otherwise, it is pointed out by the counsel for the
respondent that it is clear from paragraph 3 of the impugned order that
the father of the petitioner, namely, Samharu Singh himself had filed
an application under Section 165(6) of M.P.L.R. Code before the
Collector, Balaghat and the said permission was granted by the
Collector, Balaghat by order dated 03/10/1977.
48. The Supreme Court in the case of Balco Employees' Union
(supra) has held as under:-
"73. By Section 2 of M.P. Act 61 of 1976
published in the Gazette on 29-11-1976, the
aforesaid sub-section (6) of Section 165 was
repealed and was substituted by the following
provision:
"165.(6) Notwithstanding anything
contained in sub-section (1) the right of
bhumiswami belonging to a tribe which
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
has been declared to be an aboriginal
tribe by the State Government by a
notification in that behalf for the whole
or part of the area to which this Code
applies shall,--
(i) in such areas as are
predominately inhabited by
aboriginal tribes and from such date
as the State Government may, by
notification, specify, not be
transferred nor it shall be
transferable either by way of sale or
otherwise or as a consequence of
transaction of loan to a person not
belonging to such tribe in the area
specified in the notification;
(ii) in areas other than those
specified in the notification under
clause (i), not be transferred or be
transferable either by way of sale or
otherwise or as a consequence of
transaction of loan to a person not
belonging to such tribe without the
permission of a Revenue Officer not
below the rank of Collector, given
for reasons to be recorded in
writing."
Explanation.--For the purposes of
this sub-section the expression
'otherwise' shall not include lease."
74. Sub-section (6) of Section 165, before and
after its amendment, does not contain any
provision prohibiting the giving of tribal land by
way of lease to non-tribals. Prior to its
amendment, a land could be transferred to a non-
tribal after getting permission of the Revenue
Officer not below the rank of Collector who is
required to give his reasons for granting the
permission. After amendment on 29-11-1976 by
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
virtue of provision of sub-section (6), lease of
land is taken out of the purview of sub-section
(6)(i).
75. In the instant case, either the land was
acquired and then given on lease by the State
Government to BALCO or permission was given
by the District Collector for transfer of private
land in favour of BALCO. This was clearly
permissible under the provisions of Section
165(6) as it then stood and it is too late in the
day, 25 years after the last permission was
granted, to hold that because of this
disinvestment, it must be presumed that there is a
transfer of land to the non-tribal in the year 2001
even though the land continues to remain with
BALCO to whom it was originally transferred.
The giving of land to BALCO on lease was in
compliance with the provisions of Section 165(6)
of the Revenue Code. Moreover, change of
management or in the shareholding does not
imply that there has now been any transfer of
land from one company to another. If the original
grant of lease of land and permission to transfer
in favour of BALCO between the years 1968 and
1972 was valid, then, it cannot now be contended
that there has been another transfer of land with
the Government having reduced its stake to 49%.
Even if BALCO had been a non-public sector
undertaking the transfer of land to it was not in
violation of the M.P. Land Revenue Code. The
decision of this Court in Samatha case [(1997) 8
SCC 191] is inapplicable in the present case as
the statutory provision here does not contain any
absolute prohibition of the type contained in
Section 3(1) of the Andhra Pradesh Regulation,
which was the basis of the decision in Samatha
case [(1997) 8 SCC 191].
96. The ratio of the decision in Samatha
case [(1997) 8 SCC 191] is inapplicable here as
M.P. No.462/2022, M.P. No.464/2022,
M.P. No.465/2022, M.P. No.467/2022
the legal provisions here are different. The land
was validly given to BALCO a number of years
ago and today it is not open to the State of
Chhattisgarh to take a somersault and challenge
the correctness of its own action. Furthermore,
even with the change in management the land
remains with BALCO to whom it had been
validly given on lease."
49. Under these circumstances, it is held that the contention of the
petitioners that even the acquisition was contrary to the provisions of
Section 165(6) of M.P.L.R. Code, is not borne out from the record.
50. No other argument is advanced by the counsel for the petitioners.
51. Since no case is made out for interference in the matter, petitions
fail and are hereby dismissed with cost of Rs.10,000/- (Rupees Ten
Thousand Only) to be deposited by the petitioners in the Registry of
this Court within a period of two months from today, failing which,
the Registrar General is directed to initiate proceedings for recovery of
cost and shall also initiate proceedings for Contempt of Court.
(G.S. AHLUWALIA)
JUDGE
shubhankar
Digitally signed by
SHUBHANKAR MISHRA
Date: 2023.05.08
19:36:00 +05'30'
