Telangana High Court
M/S. The Hmt Employees Co Op House ... vs The State Of Telangana on 15 April, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.27465 of 2021
AND
W.P.No.25447 of 2023
W.P.No.27465 of 2021
Between:
Satavahana Co-Educational Academy
... Petitioner
And
The State of Telangana,
Rep.by its Principal Secretary and others
... Respondents
W.P.No.25447 of 2023
Between:
M/s The HMT Employees Co.op.
House Building Society and others
... Petitioners
And
The State of Telangana,
Rep.by its Principal Secretary and others
... Respondents
JUDGMENT PRONOUNCED ON: 15.04.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
_________________
SUREPALLI NANDA,J
WPs_27465_2021 &
25447_2023
SN,J
2
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.27465 of 2021
AND
W.P.No.25447 of 2023
% 15.04.2024
W.P.No.27465 of 2021
Between:
Satavahana Co-Educational Academy
... Petitioner
And
The State of Telangana,
Rep.by its Principal Secretary and others
... Respondents
W.P.No.25447 of 2023
Between:
M/s The HMT Employees Co.op.
House Building Society and others
.. Petitioners
And
The State of Telangana,
Rep.by its Principal Secretary and others
... Respondents
< Gist:
> Head Note:
W.P.No.27465 of 2021
! Counsel for the Petitioner : Mr.G.Vasantha Rayadu
^ Counsel for Respondents : G.P.for Education for R1 to R3
Mr.V.Hariharan,Ld.Sr.Designated
Counsel representing Mr.
K.Veerabhadra Rao,
Learned counsel for R4.
W.P.No.25447 of 2023
! Counsel for the Petitioners : Mr.Srikanth Hariharan
^ Counsel for Respondents : G.P.for Education for R1 and R2
Mr.K.Jawahar, learned counsel
for R3 and R4.
? Cases Referred:
(1) (2022) 2 SCC 25
(2) (2023) 8 SCC 116
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3
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.27465 of 2021
AND
W.P.No.25447 of 2023
COMMON ORDER:
W.P.No.27465 of 2021:
Heard Mr.G.Vasantha Rayudu, learned counsel
appearing on behalf of the petitioner and learned
Government Pleader for Education appearing on behalf of
respondent Nos.1 to 3 and learned Senior Designated
Counsel Mr.V.Hariharan, representing Mr.K.Veerabhadra
Rao, learned counsel appearing on behalf of respondent
No.4.
2. The petitioner Satavahana Co-Education Academy,
Kukatpally, Hyderabad filed Writ Petition No.27465 of
2021 with prayer as under:
"...to issue a Writ, Order or Direction, more so, a Writ in
the nature of Mandamus, by declaring the inaction of the
2nd respondent in considering the application for renewal of
recognition for the petitioner Sathavahana High School, at
Kukatpally, as arbitrary, illegal and lawful and
consequently to direct the 2nd respondent to renew the
recognition without any further delay and may pass such
other order..."
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W.P.No.25447 of 2023:
3. Heard Mr.Srikanth Hariharan, learned counsel
appearing on behalf of the petitioners, learned
Government Pleader for Education appearing on behalf of
respondent Nos.1 and 2 and Mr.K.Jawahar, learned
counsel appearing on behalf of respondent Nos.3 and 4.
4. The petitioners - The HMT Employees Cooperative
House Building Society, a Registered Society under
Societies Registration Act, 2001, HMT (Machine Tools
Division), Hyderabad, filed writ petition No.25447 of 2023
with prayer as under:
"...to issue Writ, Order or any other Direction more in the
nature of Writ of Mandamus declaring the proceedings of
the Second Respondent vide L.Dis.No.3182/B2/2022 dated
19th June, 2023 (received by the Petitioner Society in
August 2023) wherein Second Respondent granted
extension of temporary recognition to Classes VI to X for
the period 2022-2023 to 2023-2024 in respect of Third
Respondent School without consideration of the
representation dated 12th December 2022 issued by the
petitioner Society and contrary to the provisions of
G.O.Ms.No.1 Education (PS.2) Department, dated 1st
January 1994 and also contrary to the rights of the
Petitioner Society under Article 14 and 300-A of the
Constitution of India and pass such other orders..."
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5. PERUSED THE RECORD:
A) The interim order dated 02.11.2021 passed in favour
of the petitioner in W.P.No.27465 of 2021 reads as
under:
"Issue notice to the respondents.
Learned counsel for the petitioner is permitted to take out
personal notice to the 4th respondent by Registered Post
and file proof of service.
Heard learned counsel for the petitioner and learned
Assistant Government Pleader for Education.
The Writ Petition is filed aggrieved by the inaction of the
3rd respondent - District Education Officer, Malkajgiri on
the representation/Application dated 04.10.2021 submitted
seeking renewal of recognition of the petitioner school. It is
stated that as per terms and conditions of the registered
lease deed between the 4th respondent - landlord and the
petitioner, there is an option for renewal of the term of
lease. In spite of the same, the 3rd respondent is not
passing any orders on renewal Application.
There shall therefore, be interim direction to the 3rd
respondent to forthwith consider the Application of the
petitioner dated 04.10.2021 seeking renewal of recognition
of the school for the academic year 2021-22."
B) The interim order dated 12.07.2023 passed in
I.A.No.1 of 2022 in W.P.No.27465 of 2021 reads as
under:
"Taking into consideration the impugned order
already passed by a co-ordinate bench of this Court on
02.11.2021 in this writ petition, there shall be interim
direction, as prayed for."
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6. The case of the petitioner in brief, as per the
averments made by the petitioner in the affidavit filed by
the petitioner in support of Writ Petition No.27465 of
2021, is as under:
a) The petitioner is a Society Registered under the
Provision of A.P.(Telangana Area) Public Societies Registration
Act, 1960, with Registration No.313 of 1989 which was the
Society formed with the objective of imparting education to the
down trodden children and the 4th respondent i.e., HMT
Employees Cooperative House Building Society, Hyderabad,
agreed for construction of a school building on certain terms and
conditions and thereafter a registered lease deed was entered
into by and between the petitioner and the 4th respondent in Writ
Petition No.27465 of 2021, for a period of 30 years with a clear
stipulation in the said lease deed that the petitioner herein could
exercise an option for renewal of lease for a similar period of 30
years and further that the petitioner can develop the subject
property to suit its convenience. The petitioner established the
school in the subject premises situated in Survey Nos.148, 158
to 161 at HMT Colony, Venture-III and the petitioner started the
school for classes I to V and improved the same and named the
school as 'Satavahana High School'.
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b) It is further the case of the petitioner that the initial
lease period came to an end on 26.11.2019 and the 4th
respondent's Society without intimation to the petitioner had
addressed a letter to the 3rd respondent i.e., the District
Educational Officer, Malkajgiri District, and that the 4th
respondent will not renew the said lease in favour of the
petitioner and further the 4th respondent proceeded and filed a
civil suit for eviction against the petitioner herein and the 4th
respondent also intimated the same to the official respondents
and accordingly the 2nd and 3rd respondents did not consider the
renewal application filed by the petitioner. Aggrieved by the
inaction of the 2nd respondent in not considering the application
for renewal of recognition, the petitioner approached the Court
by filing the present writ petition and as interim relief sought a
direction to the 2nd respondent to consider for renewal of
recognition to the petitioner - Sathavahana High School, for the
academic year 2021-2022.
c) On 02.11.2021 this Court directed the 3rd
respondent to forthwith consider the application of the
petitioner dated 04.10.2021 seeking renewal of
recognition of the School for the academic year 2021-
2022.
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d) In the year 2022 the petitioner again filed
I.A.No.1 of 2022 seeking the direction to the 3rd
respondent to consider for renewal of the recognition of
the petitioner's school for the period from 2022-2023 to
2025-2026 pending disposal of the present writ petition.
e) This Court vide its order dated 12.07.2023 in
I.A.No.1 of 2022 in W.P.No.27465 of 2021 passed orders
granting the interim relief as prayed for by the petitioner
in I.A.No.1 of 2022 and directed the 3rd respondent herein
to consider for renewal of recognition of the petitioner's
school for the period from 2022-2023 to 2025-2026
pending disposal of W.P.No.27465 of 2021.
f) In the present Writ Petition vide undertaking
dated 29.12.2022, filed on the file of this Court and as
part of record in W.P.No.27465 of 2021, the Secretary of
the petitioner - Satavahana Educational Academy,
Kukatpally, Hyderabad undertook as under:
"UNDERTAKING AFFIDAVIT FILED BY THE PETITIONER
I, Smt.Y.Nalini, W/o Y.Rajagopal, aged about 76 years R/o
C/o Sathavahana Public School, HMT Sathavahana Nagar,
Kukatpally, Hyderabad, do hereby solemnly and sincerely
affirm and state as follows:
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1. I am the deponent herein and Secretary of the
petitioner, which was under the provisions of A.P
(Telangana Area) Public Societies Registration Act, 1960,
with registration No.313/1989, as such, I am well
acquainted with the facts of the case.
2. I submit that I am running the school under the name
and style of Satavahana Co-Educational Academy having
classes from 1 to 10. The second respondent has granted
permission till the Academic year 2021-22 and refused to
receive my application for renewal for the year 2022-23 on
the ground that the 4th respondent landlord of the school
premises has not given their "No Objection". It is humbly
submitted that I am still in the possession of the premises
as a tenant and the landlord has initiated eviction
proceedings pending before the Junior Civil Judge Court at
Kukatpally, vide O.S. 46/2020. Since I continue to be in
possession of the premises and under influence of the
landlord the 2nd respondent has refused to renewal my
application for recognition.
3. It is humbly submitted that the future of many students
would be under Jeopardy. Unless the nominal rolls are
submitted before the authorities on or before 31.12.2022
the students would become ineligible for appearing the
public examination.
4. I hereby undertake that I shall not take
admissions for the year 2024-25 and I shall suspend
admissions after completion of 2 Academic years i.e.,
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2022-2023 and 2023-2024. Hence the same may be
accordingly ordered in the interests of justice and
equity.
Solemnly affirmed and singed before me on this the 29th
day of December, 2022."
7. Vacate Stay petition had been filed along with
Counter Affidavit by the 4th respondent in W.P.No.27465
of 2021 vide I.A.No.2 of 2021, and in particular,
paragraphs 3 and 5 of the said counter affidavit, read as
under:
"3. In reply to para No.4, it is submitted that as per the
Lease terms and conditions, the Petitioner has agreed to
construct and run the Educational institution, duly
obtaining permission from the Municipality, but the
Petitioner did not follow the same. That this Respondent
Society and Colony residents had cautioned the Petitioner
many times to improve good quality of education and
made several representations to the Education Department
and MCH, then only the Petitioner had obtained necessary
permissions and running the school for classes 1 to 5, due
to poor quality of education this respondent Society colony
residents i.e. Sathavahana Colony residents had shifted
their children to other schools to provide better education
to their children. That the said land allotted for community
utilization, due to poor quality of education, this
Respondent Society member's children were affected
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greatly and the objectives and reputation of this
Respondent suffered. Therefore, also this Respondent
Society is not interested to renew the same in favor of the
Petitioner.
5. In view of the above said circumstances that this
Respondent did not execute Lease Deed after expiry
of lease period on 26-11-2019, the Petitioner has no
right to claim for renewal, either with this
respondent or through the agency of the 2nd and 3rd
Respondents. The Petitioner without making
alternative arrangements or to vacate from this
Respondent Society land, had mischeviously filed the
present writ petition i.e. W.P.No.27465 of 2021 and
obtained interim directions on 02-11-2021, by
misleading this court. Thus it's nothing but, the
Petitioner is having ill intention to grab this Society land
which is against to law. In view of the same unless this
Hon'ble Court intervenes and dismiss the main writ petition
by vacating interim orders passed in the above IA No.1 of
2021 in WP No.27465 of 2021, otherwise this 4th
Respondent will be put to serious and irreparable loss
which cannot be compensated in monetary terms. Any
further continuation of order by this court or passing of any
other order will gravely prejudice the cause of this
respondent and permit an unauthorized person to squat on
the property of this respondent. The same would be unjust
and inequitable. This Respondent Society reserves its right
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to raise other and further grounds at the time of hearing of
the Petition."
8. The case of the petitioners in brief, in W.P.No.25447
of 2023 filed by the HMT Employees Cooperative House
Building Society, a Registered Society under Societies
Registration Act, 2001, HMT (Machine Tools Division), RR
District, as per the averments made by the petitioners in
the affidavit filed in support of the said writ petition, is as
under:
The petitioners Society was established in the year 1975
with the main object of providing house sites to its members,
who are the employees of HMT, Machine Tools Limited. The
petitioner Nos.2 to 5 are members of the petitioner No.1 society.
The petitioner Society undertook various housing projects for its
members and the petitioner's society purchased property to an
extent of 1,14,000 sq. yards in survey No.148, 158, 159, 160
and 161 situated at Kukatpally village and developed subject
sites and further earmarked one of the plots specifically for
community service i.e., for School, i.e., admeasuring 2616
sq.yards. In response to the application received by the 4th
respondent herein which runs the 3rd respondent school, the
petitioner executed a registered lease deed vide document
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No.14503 of 1989 on 27.11.1989 for a period of 30 years
agreeing to lease the subject land from 27.11.1989 to
26.11.2019 in respect of the open plot earmarked admeasuring
2616 sq. yards in the layout.
It is the specific case of the petitioner that as per the
lease deed dated 27.11.1989 clause (iv) and clause (ix)
after completion of the lease, the said subject land has to
be reverted and handed over to the petitioner society
along with the constructed buildings thereon and further
that the renewal clause clearly postulates that if and only,
if mutually agreed upon, but it is not mandatory or under
compulsion, to renew the lease for a further period of 30
years.
It is further the case of the petitioner that even
before the closure of the lease term the petitioner sent
several letters to the 3rd and 4th respondent to vacate the
subject land and handover peaceful possession of the
subject land to the petitioner society, but however, the 3rd
and 4th respondents failed to make any alternative
arrangements or vacate the subject premises and instead
squatted over the subject property, even though
admittedly as borne on record the petitioner herein did
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not execute any lease deed in favour of the 3rd respondent
herein after expiry of the lease period on 26.11.2019 and
the petitioner's society issued eviction notice dated
21.10.2019 against the 3rd respondent and the 3rd and 4th
respondent issued letter dated 07.11.2019 in response to
the said notice dated 21.10.2019 refusing to vacate the
subject premises on the expiry of the lease term and
further, the petitioner was constrained to file suit
O.S.No.46 of 2020 on the file of the V Additional Junior
Civil Judge, at Kukatpally, Ranga Reddy District, since the
3rd respondent failed to vacate the subject premises
before 26.11.2019.
It is further the case of the petitioner that despite
pendency of the civil suit between the petitioner and the
3rd respondent, the 4th respondent herein filed
W.P.No.27465 of 2021 and without disclosing the
correspondence between the 4th respondent and the
petitioner's society, the 4th respondent herein has
obtained interim orders dated 02.11.2021 to forthwith
consider the application of the 3rd respondent dated
04.10.2021 seeking renewal of recognition of the school
for the academic year 2021-2022. The petitioner society
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herein soon after receipt of the said notice in the said writ
petition, filed I.A.No.2 of 2021 in W.P.No.27465 of 2021
seeking to vacate the interim order dated 02.11.2021 and
the 4th respondent during the pendency of the said writ
petition submitted an affidavit dated 29.12.2022 on the
file of this Court bringing on record its undertaking dated
29.12.2022, undertaking to suspend admissions after
completion of two academic years i.e., 2022-2023 and
2023-2024. The petitioner objected to the 2nd respondent
and requested the 2nd respondent not to grant any further
extension of recognition to the 3rd respondent. The 3rd
respondent contrary to its own affidavit dated 29.12.2022
filed I.A.No.1 of 2022 in W.P.No.27465 of 2021 seeking a
direction to the 2nd respondent to consider for renewal of
the recognition of the 3rd respondent school for the period
from 2020-2023 to 2025-2026 and obtained interim
orders dated 12.07.2023 in I.A.No.1 of 2022 in
W.P.No.27465 of 2021, in favour of the 3rd respondent and
the 2nd respondent issued proceedings L.Dis.No.3182/
B2/2022 dated 19.06.2023 granting conditional approval
to the 3rd respondent. As per clause 27 of the impugned
proceedings, it is one of the terms of the approval that the
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renewal lease deed is to be executed by the 3rd
respondent as and when it is expired. Aggrieved by the
said proceedings dated 19.06.2023, granting conditional
approval to the 3rd respondent, the petitioner approached
the Court by filing the present writ petition.
9. The learned counsel appearing on behalf of the
petitioner in W.P.No.25447 of 2023 and appearing on
behalf of 4th respondent in W.P.No.27465 of 2021 mainly
puts forth the following submissions:
(I) The petitioner's society did not execute lease
deed in favour of the 3rd respondent after
expiry of the lease period on 26.11.2019 and
therefore the 3rd respondent has no right to
claim for renewal, neither with the petitioner's
society nor through the 4th respondent nor the
official respondents herein.
(II) The 3rd respondent is having ill intention to
grab the petitioner society's land which is
against the law.
(III) As per Rule 6 of G.O.Ms.No.1, Education (PS.II)
dated 01.01.1994, it is mandatory that
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application for renewal or grant of recognition
shall be accompanied by evidence of ownership
of the land and building or lease of land or
building as the case may be, and in the present
case admittedly the said procedure for grant of
recognition is not followed.
(IV) The petitioner society was not accorded any
opportunity of personal hearing prior to grant
of approval to the 3rd respondent by the 2nd
respondent.
(V) The petitioner was not issued any notice prior
to issuance of the impugned proceedings
L.Dis.No.3182/B2/2022 dated 19.06.2023 of
the 2nd respondent herein granting conditional
approval to the 3rd respondent.
(VI) The Representation/Explanation dated
12.12.2022 submitted by the petitioner society
was not at all considered.
The learned counsel appearing on behalf of the
petitioner society based on the aforesaid submissions
contended that the writ petition No.25447 of 2023 needs
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to be allowed as prayed for and W.P.No.27465 of 2021
needs to be dismissed.
10. The learned counsel appearing on behalf of the 3rd
and 4th respondents and on behalf of the petitioner in
W.P.No.27465 of 2021 mainly puts forth the following
submissions:
(I) As per the lease deed dated 27.11.1989 entered
into between the petitioner society and the 3rd
respondent, the 3rd respondent has an option to
exercise for renewal of lease for a similar
period of 30 years.
(II) The 3rd respondent has got every right to
continue the school activities in the subject
premises till the petitioner is evicted by
competent Civil Court.
(III) The School buildings are constructed by the 3rd
respondent and therefore, the 3rd respondent is
entitled to continue the school in the same
premises.
(IV) The 3rd respondent is entitled to continue the
school in the subject premises and the
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petitioner society cannot unilaterally
dispossess the petitioner.
Basing on the aforesaid submissions, the learned
counsel appearing on behalf of the 3rd and 4th
respondent contends that the writ petition No.25447 of
2023 needs to be dismissed and the Writ Petition
No.27465 of 2021 needs to be allowed.
DISCUSSION AND CONCLUSION:
11. G.O.Ms.No.1, Education (P.S.2) 01.01.1994 issued
under the Telangana Educational Institutions
(Establishment, Recognition, Administration and Control
of School under Private Managements), Rules 1993. Rule
6 (f) and Rule 9 clause (6) reads as under:
Rule 6 - Application for permission for Establishment
of New Schools or upgradation of existing schools,
clause 2:
Every application shall be accompanied by the
following documents.
Clause 2(f) reads as under:
"(f) - Evidence of Ownership of the land and
building or lease of land or building as the case
may be."
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Rule - 9 - Recognition:
Clause (6) reads as under:
"The renewal of recognition shall be guided by the
same principles as are applicable to grant of original
recognition."
12. A bare perusal of the aforesaid rules clearly indicates
that the official respondents herein are duty bound to
follow the same principles as are applicable to grant of
original recognition for renewal of recognition, and
application for permission for Establishment of new
schools or upgradation of existing schools should
necessarily enclose along with the said application
evidence of ownership of land and building or lease of
land or building as the case may be, which admittedly had
not been done in the present case, even as borne on
record since the impugned proceedings in Writ Petition
No.25447 of 2023 i.e., the proceedings of the 2nd
respondent in L.Dis.No.3182/B2/2022 dated 19.06.2023
clearly indicates at clause 27 and 30 as under:
27. The correspondent is instructed to renew lease
deed time to time when it gets expired.
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30. This recognition is accorded. Subject to final
outcome of Judgment/orders of W.P.No.27465 of 2021.
13. It is the specific case of the petitioner in W.P.25447
of 2023 that the petitioner thereunder i.e., The HMT
Cooperative House Building Society, RR District did not
execute lease deed after expiry of lease period on
26.11.2019 and therefore, the 3rd respondent thereunder
i.e., Sathavahana High School, HMT Sathavahana Nagar,
Kukatpally, Malkajgiri District, had no right to claim for
renewal.
14. A bare perusal of the contents of the undertaking
filed by the 3rd respondent herein as part of the original
record on the file of this Court in W.P.No.27465 of 2021
dated 29.12.2022 referred to and extracted above, clearly
indicates an undertaking on oath on behalf of
Sathavahana Public School, HMT Sathavahana Nagar,
Kukatpally, Hyderabad, to suspend the admissions after
completion of two academic years i.e., 2022-2023 and
2023-2024.
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15. The Apex Court in the Judgment dated 07.10.2021
reported in 2022 (2) SCC 25 in "Union of India and others
v. N.Murugesan and others" at paras 26, 27, 27.1, 27.2,
27.3 observed as under:
Approbate and Reprobate:
"26. These phrases are borrowed from the Scots law.
They would only mean that no party can be allowed
to accept and reject the same thing, and thus one
cannot blow hot and cold. The principle behind the
doctrine of election is inbuilt in the concept of
approbate and reprobate. Once again, it is a principle
of equity coming under the contours of common law.
Therefore, he who knows that if he objects to an
instrument, he will not get the benefit he wants cannot be
allowed to do so while enjoying the fruits. One cannot take
advantage of one part while rejecting the rest. A person
cannot be allowed to have the benefit of an instrument
while questioning the same. Such a party either has to
affirm or disaffirm the transaction. This principle has to
be applied with more vigour as a common law
principle, if such a party actually enjoys the one part
fully and on near completion of the said enjoyment,
thereafter questions the other part. An element of fair
play is inbuilt in this principle. It is also a species of
estoppels dealing with the conduct of a party. We have
already dealt with the provisions of the Contract Act
concerning the conduct of a party, and his presumption of
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knowledge while confirming an offer through his
acceptance unconditionally.
27. We would like to quote the following judgments for
better appreciation and understanding of the said principle:
27.1. Nagubai Ammal v. B. Shama Rao AIR 1956 SC 593
(para 23):
"23. But it is argued by Sri Krishnaswami Ayyangar
that as the proceedings in OS. No. 92 of 1938-39 are relied
on as barring the plea that the decree and sale in OS. No.
100 of 1919-20 are not collusive, not on the ground of
res judicata or estoppel but on the principle that a person
cannot both approbate and reprobate, it is immaterial that
the present appellants were not parties thereto, and the
decision in Verschures Creameries Ltd. v. Hull and
Netherlands Steamship Company Ltd., and in particular,
the observations of Scrutton, LJ, at page 611 were quoted
in support of this position. There, the facts were that an
agent delivered goods to the customer contrary to the
instructions of the principal, who thereafter filed a suit
against the purchaser for price of goods and obtained a
decree.
Not having obtained satisfaction, the principal next
filed a suit against the agent for damages on the ground of
negligence and breach of duty. It was held that such an
action was barred. The ground of the decision is that when
on the same facts, a person has the right to claim one of
two reliefs and with full knowledge he elects to claim one
and obtains it, it is not open to him thereafter to go back
on his election and claim the alternative relief. The
principle was thus stated by Bankes, L.J.: (Verschures
Creameries Ltd. Case, KB p.611)
".....Having elected to treat the delivery to him as an
authorised delivery they cannot treat the same act as a
misdelivery. To do so would be to approbate and reprobate
the same act".
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The observations of Scrutton, LJ on which the appellants
rely are as follows: (Verschures Creameries Ltd. Case, KB
p.611-12)
"...A plaintiff is not permitted to "approbate and
reprobate‟. The phrase is apparently borrowed from the
Scotch law, where it is used to express the principle
embodied in our doctrine of election-- namely, that no
party can accept and reject the same instrument: Ker v.
Wauchope: Douglas-Menzies v. Umphelby. The doctrine of
election is not however confined to instruments. 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. That is to approbate
and reprobate the transaction".
It is clear from the above observations that the maxim that
a person cannot "approbate and reprobate‟ is only one
application of the doctrine of election, and that its
operation must be confined to reliefs claimed in respect of
the same transaction and to the persons who are parties
thereto. The law is thus stated in Halsbury‟s Laws of
England, Vol. XIII, p. 464, para 512:
"On the principle that a person may not approbate
and reprobate, a species of estoppel has arisen which
seems to be intermediate between estoppel by record and
estoppel in pais, and may conveniently be referred to here.
Thus a party cannot, after taking advantage under an
order (e.g. payment of costs), be heard to say that it
is invalid and ask to set it aside, or to set up to the
prejudice of persons who have relied upon it a case
inconsistent with that upon which it was founded;
nor will he be allowed to go behind an order made in
ignorance of the true facts to the prejudice of third
parties who have acted on it".
27.2. State of Punjab v. Dhanjit Singh Sandhu, (2014) 15
SCC 144 (SCC pp. 153-54, paras 22-23 & 25-26)
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SN,J
"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).
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 benefit out of it,
he cannot challenge it on any ground. (Vide
Maharashtra SRTC v. Balwant Regular Motor Service)
In R.N. Gosain v. Yashpal Dhir (1992) 4 SCC 683 this
Court has observed as under: (R.N. Gosain case, 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‟.
25. The Supreme Court in Rajasthan State Industrial
Development and Investment Corpn. v. Diamond and Gem
Development Corpn. Ltd., 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,
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or conduct, or silence when he has to speak, from
asserting a right which he would have otherwise had."
27.3. Rajasthan State Industrial Development &
Investment Corpn. v. Diamond & Gem Development Corpn.
Ltd., (2013) 5 SCC 470 (SCC pp.480-81, paras 15-16):
"I. Approbate and reprobate
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 Rao CIT v. V. MR. P. Firm Muar, Ramesh
Chandra Sankla v. Vikram Cement, Pradeep Oil
Corpn. V. MCD, Cauvery Coffee Traders v. Hornor
Resources (International) Co. Ltd. And V.
Chandrasekaran v. Administrative Officer.]
16. Thus, it is evident that the doctrine of election is
based on the rule of estoppels - 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."
16. The Apex Court in the Judgment dated 03.07.2023
reported in 2023 (8) SCC 116 in "Workmen Through the
Joint Secretary (Welfare), Food Corporation of India
Executive Staff Union v. Employer in Relation to the
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Management of the Food Corporation of India and
another", in particular, at paras 16 and 17, read as under:
"16. In Union of India v. N. Murugesan, this Court
pointed out that the phrases "approbate" and
"reprobate" mean that no party can be allowed to
accept and reject the same thing, as the principle
behind the doctrine of election is in-built in the
concept of approbate and reprobate, that is, a person
cannot be allowed to have the benefit of an
instrument while questioning the same. It was noted
that an element of fair play is in-built in this
principle and it is a species of estoppel dealing with
the conduct of a party.
17. In the case on hand, the management of FCI filed a
writ petition challenging the award passed by the Tribunal
but having secured conditional interim relief therein, the
management chose to implement the impugned award
though it was under no compulsion to do so. As pointed
out hereinbefore, the management did not stop short at
just reinstating the workmen in service but went further
and absorbed them in regular service. Such absorption in
service was not at all required under the interim order
dated 5-8-1999 and was, therefore, squarely attributable
to the will and volition of the management of FCI itself. In
effect, the management of FCI, be it for whatever reason,
chose to acquiesce with and accept the award in its
entirety, though it made such compliance subject to the
result of the writ petition. Its somnolence, thereafter, in
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taking timely measures for expeditious disposal of the writ
petition compounded the matter further, leading to the
passing of 18 long years, which conclusively weighed with
the learned Judge and, in our considered opinion, rightly
so. A party to a proceeding cannot be permitted to
challenge the same but thereafter abide by it out of
its own free will; garner benefit from it; get the
opposite party to effectively alter its position; and
then press its challenge after the passage of a
considerable length of time.
17. A bare perusal of the terms of the lease deed dated
27.11.1989 entered into between the petitioner and 4th
respondent in W.P.No.25447 of 2023 clearly indicates that
the 4th respondent shall be given an option to renew the
lease on mutual agreement for a similar period.
18. But however, in the present case, admittedly as
borne on record the petitioner society had issued a letter
dated 31.07.2018 to the 3rd and 4th respondent bringing it
to the notice of the 3rd and 4th respondent in
W.P.No.25447 of 2023 that the lease shall expire on
26.11.2019 and the land should revert back and be
handed over back to the petitioner society on or before
that date and it is only thereafter that the 3rd respondent
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and the 4th respondent submitted a letter dated
21.08.2018 requesting for extension of lease and the
petitioner society having considered the said request of
the 3rd and 4th respondent had issued letter dated
03.11.2018 intimating to the 4th and 3rd respondent that
the petitioner society requires the subject land for its own
use and for the benefit of the members of the petitioner
society and therefore would not be able to extend the
lease or renew the lease in favour of the 3rd and 4th
respondent, the petitioner society even issued letter dated
25.03.2019 to 4th and 3rd respondent to vacate the subject
premises by 29.11.2019 and handover the physical
possession of the subject premises to the petitioner
society and in view of the expiry of the lease period on
26.11.2019, the petitioner society issued eviction notice
on 21.10.2019 to the 3rd respondent to vacate the subject
premises.
19. On perusal of record it is evident that as borne on
record there is no renewal of lease in favour of the 4th
respondent after expiry of the lease period on 26.11.2019
and there is a clear undertaking on record dated
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29.12.2022 filed by the 3rd respondent herein on the file of
this Court in W.P.No.27465 of 2021 very clearly
undertaking that the Sathavahana Public School, HMT
Sathavahana Nagar, Kukatpally, Hyderabad, shall suspend
admissions after completion of two academic years i.e.,
2022-2023 and 2023-2024.
20. The counter affidavit filed by the 2nd respondent i.e.,
Regional Joint Director of School Education, Hyderabad,
Saifabad, Hyderabad, in W.P.No.25447 of 2023, paras 10
and 11 read as under:
10. It is submitted that the Respondents have
implemented the orders of the Hon'ble Court issued on
02.11.2021 and 12.07.2023 in IA No 1 of 2022 in WP No.
27465 of 2021 by according Provisional recognition to the
School for two academic years i.e., 2022-23 and 2023-24
subject to final outcome of W.P.No.27465/21 and the
Correspondent, Sathavahana High School, HMT,
Sathavahana Nagar, Kukatpally in her letter dated:
31.12.2022 has submitted undertaking affidavit she
shall not take admissions for the year 2024-25 and
shall suspend admissions after completion of 2
Academic years i.e. 2022-23 and 2023-24.
11. It is submitted that, Counter Affidavit has been filed in
W.P.No.27465/2021 in the Hon'ble High Court that, the
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HMT Employees Cooperative House Building Society who
are the owners of the building where Sathavahana High
School is running have submitted representation dated:
24-10-2019 to the Dist. Educational Officer, Medchal-
Malkajgiri District and representation dated 12-12- 2022 to
the Regional Joint Director of School Education, Hyderabad
that the building was given for a period of 30 years i.e.
from 27-11- 1989 to 26-11-2019 and before expiry of the
said lease period, their society has cautioned them to
vacate the premises after completion of School academic
year 2019-20. They have also submitted that their society
has no intention to extend the lease period and requested
not to grant any Recognition to M/s Satahvahana
Educational Academy for running the school in their society
land premises from the Academic year 2022-23. It is
submitted that as per Rule 6 (2) (f), the
Management have to submit evidence of ownership
of the land and building or lease of land or building
as the case may be and the Hon'ble High Court has
been requested to vacate the interim orders in
W.P.No.27465/21 and pass such other order or orders as
deem fit and proper in the interest of justice. Final orders
of the Hon'ble High Court are awaited."
21. A bare perusal of Rule 6(2)(f) of G.O.Ms.No.1,
Education (P.S.2) dated 01.01.1994 read with clause 27
and clause 30 of the impugned proceedings of the 2nd
respondent in L.Dis.No.3182/B2/2022 dated 19.06.2023
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and the averments made in the counter affidavit filed by
the 2nd respondent in W.P.No.25447 of 2023 in particular
paras 10 and 11 (referred to and extracted above), clearly
indicates that it is mandatory for the Management to
submit evidence of ownership of the land and building or
lease of land or building and in the present case, it is very
clear that the said condition precedent for grant of any
approval to the 3rd respondent had been converted by the
2nd respondent into a condition subsequent which is
totally contrary to the terms of the Governmental Orders
i.e., G.O.Ms.No.1, Education (P.S.2) dated 01.01.1994 and
the same is totally an unwarranted Act done by the 2nd
respondent.
22. This Court opines that the Judgment of the A.P. High
Court dated 31.01.2022 passed in W.P.No.15874 of 2021
relied upon by the learned counsel for the petitioner in
W.P.No.27465 of 2021 has no application to the facts of
the present case in view of the undertaking dated
29.12.2022 given by the petitioner in W.P.No.27465 of
2021 i.e., Sathavahana Co-Educational Academy,
Kukatpally, Hyderabad, on the file of this Court and which
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is part of the record, that the petitioner Academy shall
suspend admissions after completion of 2 academic years
2022-2023 and 2023-2024 and shall not take any
admissions for the year 2024-2025.
23. Taking into consideration :
(A) the law laid down by the Apex Court in the
Judgment dated 07.10.2021 reported in 2022 (2)
SCC 25 in "Union of India and others v.
N.Murugesan and others" and the law laid down in
the Judgment dated 03.07.2023 of the Apex Court
reported in 2023 (8) SCC 116 in "Workmen
Through the Joint Secretary (Welfare), Food
Corporation of India Executive Staff Union v.
Employer in Relation to the Management of the
Food Corporation of India and another" (referred
to and extracted above), on the principle that one
cannot approbate and reprobate.
(B) duly considering the contents of the undertaking
filed by the petitioner in W.P.No.27465 of 2021
dated 29.12.2022 (referred to and extracted
above),
(C) further duly considering the averments made in
the counter affidavit filed by the official
respondent No.2 at paras 10 and 11 in
W.P.No.25447 of 2023 (referred to and extracted
above),
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(D) Taking note of Clause 27 and 30 of the impugned
proceedings L.Dis.No.3182/B2/2022 dated
19.06.2023 of the 2nd respondent in W.P.No.25447
of 2023,
The Writ Petition No.27465 of 2021 is dismissed and
the Writ Petition No.25447 of 2023 is allowed. The interim
order dated 12.07.2023 passed in I.A.No.1 of 2022 in
W.P.No.27465 of 2021 stands vacated. However there
shall be no order as to costs.
Miscellaneous petitions, if any pending, in this writ petition
shall stands closed.
__________________
SUREPALLI NANDA, J
Date: 15.04.2024
Note: L.R.copy to be marked.
B/o.Yvkr
