TMI Blog2012 (4) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... red any such expenses after the agreement to sell dated 19th November, 1995. Form No. 37-I was filed on very next day, i.e., 20th November, 199 - Petition is dismissed - WRIT PETITON (CIVIL) NO. 2489/1996 - - - Dated:- 29-3-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. Arun Khosla Mr. Shreeanka Kakkar, Advocates. For Respondent: Mr. Sanjeev Sabharwal, Sr. Standing Counsel. SANJIV KHANNA, J.: Avenue Realities and Developers Private Limited on 21st May, 1996 filed the present writ petition impugning the order dated 29th February, 1996 passed by the Appropriate Authority under Section 269 UD(1) of the Income Tax Act, 1961 (Act, for short) questioning and challenging acquisition/compulsory purchase by the Central Government of the immovable property bearing No. S-380, Panchsheel Park, New Delhi (the property, for short). 2. Arguments in the said writ petition were heard and judgment was reserved vide order dated 15th November, 2011. However, the matter was re-listed for further arguments on 3rd January, 2012, when the following order was passed:- Judgment in this case was reserved on 15th November, 2011. On going throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent Nos. 3 to 5 though they had a Letter of Administration in their favour. (iii) The leasehold rights in the records of the DDA was in the name of late C.N. Rajagopal. (iv) The property is located on 80 ft. main road facing the village adjoining Malviya Nagar. (v) The property is sher mukha. (vi) Inconvenience and the expenses involved for conversion of the property into freehold has not been considered. (3) Appropriate Authority had granted permission under Chapter XXC of the Act for another property S-131, Panchsheel Park, New Delhi vide order dated 15th March, 1996 admeasuring 424.67 square meter. Apparent sale consideration in the said case was Rs.3,15,50,000/-. (4) Appropriate Authority has wrongly computed per square meter fair market price of land by proportionately increasing the price of the comparable for the additional FAR. 6. We may, at this stage, only record that the Appropriate Authority in the impugned order has referred to the sale instance of another property, namely, S-179, Panchsheel Park, New Delhi, which was sold under memorandum of understanding dated 21st October, 1995. The apparent sale consideration for the said property admeasuring 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the writ petition was filed nearly 2 months after the payments were made. This fact that the payment was received and even accepted has not been stated and adverted to. The respondents nos. 1 and 2, in their application for vacation of stay CM No. 2208/1997 and in the reply to the application for stay, namely, CM No. 4368/1996 have averred and stated this fact. In view of the said payment, it is alleged that the petitioner cannot claim any interim relief as the parties had received the full apparent sale consideration. Surprisingly, however, this plea is not taken in the counter affidavit. As noticed above, we have recorded that the respondent Nos. 3 to 5, the sellers, who had received payment of Rs.2.37 crores, have not been served. 10. The factual position, which therefore emerges, is this that the petitioner received payment of Rs.42 lacs on 17th March, 1996 and the sellers, namely, respondent Nos. 3 to 5 had received payment of Rs.2.37 crores on 22nd March, 1996. They have retained, used and utilized the said money. The petitioner herein while filing the writ petition concealed and did not state the fact that the petitioner and the respondent Nos. 3 to 5 have received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition may have been different and the parties may have been directed to deposit the said amount in the Court. Respondent Nos. 3 to 5 had received substantial payment of Rs.2.37 crores. They may have protested or questioned the petitioner‟s challenge to the acquisition. The respondent Nos. 3 to 5 may have required/wanted the money and in such circumstances the petitioner could have been asked to pay/deposit the said amount in the Court. It is significant that the respondent Nos. 3 to 5 have not filed any writ petition or challenged the action of the central government to acquire the property. In this connection, we may note the contention of the counsel for the respondents no. 1 and 2 relying upon clause 8 of the agreement to sell dated 19th November, 1995. The said clause reads as under:- 8. The Vendors and Vendee hereto agree to file Form No. 37-I as required under Section 269 UC of the Income Tax Act 1961 in pursuance of this Agreement and if the Appropriate Authority exercises its pre-emptive right to purchase the said property then and in that event the Earnest Money Deposit of Rs.42,00,000/- (Rupees Forty Two Lakhs Only) shall be payable by the Appropriate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition may be dismissed at the threshold without considering the merits of the claim. 35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs in the following words: (KB p. 514) it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts it says facts, not law. He must not misstate the law if he can help it the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement. (emphasis supplied) 36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and failed to pay instalments as directed. Neither it raised any grievance against the condition as to payment of instalments nor made any application to the Court for modification of the condition. It continued to enjoy the benefit of stay ignoring and defying the term as to payment of money. The Company is thus in contempt of the order of this Court, has impeded the course of justice and has no right of hearing till it has purged itself of the contempt. xxx 33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contends and submits that the order of pre-emptive purchase is bad in law. This should not be permitted and allowed. The petitioner cannot take advantage and benefit under the order and retain the money and at the same time contest and contend that the order is bad and illegal. We are not strictly invoking the principle of estoppel but are making a comment on the conduct of the petitioner. The question is of an equity, fairness and justice. In this regard we refer to the decision of Supreme Court in Punjab Sind Bank v. S. Ranveer Singh Bawa, (2004) 4 SCC 484, wherein it has been stated: 5. In the case of Bank of India v. O.P. Swarnakar (2003) 2 SCC 721 this Court observed that estoppel is based upon the acceptance and retention of benefits, by one having knowledge or notice of the benefits from a contract or a transaction. The doctrine of estoppel is a branch of the rule against assumption of inconsistent positions. One who knowingly accepts the benefit of a contract is estopped from denying the binding effect on him of such contract. This rule has to be applied to do equity. It was accordingly held that those optees who knowingly received the payments and utilized them were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus: (IA p. 271) Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker 1873 LR 8 CP 350 LR at p. 357: at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage.‟ 25. The view taken in the above decision has been reiterated by this Court in City Montessori School v. State of U.P. (2009) 14 SCC 253 To the same effect is the decision of this Court in New Bihar Biri Leaves Co. v. State of Bihar (1981) 1 SCC 537 where this Court said: (New Bihar case, SCC p. 558, para 48) 48. It is a fundamental principle of general application that if a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience. 19. In the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) v. Director General of Civil Aviation, (2011) 5 SCC 435, the Supreme Court has noticed as under: 11. In R.N. Gosain v. Yashpal Dhir 1992) 4 SCC 683 this Court 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our view, the same cannot be undone or upturned at the instance of the petitioner who approached the Court only after he remained unsuccessful in the examination on the plea that the provision of 200 marks for viva voce test out of total marks 1050 was unreasonable. If out of 318 candidates who were recommended by BPSC to the State Government for appointment, any candidate did not join, that vacancy has to be carried forward to the next year. There is no challenge to the circular issued by the Personnel and Administrative Reforms Department way back in the year 1977 that any vacancy having remained unfilled due to non-joining of the selected candidates will be carried forward to the next year. 21. Thereafter, in Manish Kumar Shahi (supra) it has been observed: 16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Motilal Padampat Sugar Mills Company Limited (supra) this plea was raised before the Supreme Court. It was observed that no plea for waiver could be allowed or raised, unless it was pleaded and the factual foundations were made. No attempt was made to amend and it was observed that in the absence of pleadings, the opposite party stands denied an opportunity to meet the allegation. It was held that for waiver to apply, the person should have full information as to his right and with full knowledge of such right. It should be shown that he had intentionally abandoned his right. The aforesaid ratio is not applicable to the facts of the present case. Factual assertion has been made by the respondent nos. 1 and 2 in the application for vacation of stay and in the reply to the application for stay. The petitioner has not filed reply or responded to the same. The legal proceedings are still at the first/original stage. The aforesaid factums were brought to the notice of the petitioner vide order dated 3rd January, 2012 and the matter was fixed for rehearing. Thereafter, the judgment was reserved on 27th February, 2012. During the interregnum, the petitioner did not file any additional aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 269 UG and UH. It was submitted that the full value of the apparent consideration was not paid to the petitioner and the respondent Nos. 3 to 5. The said contention has to be rejected for number of reasons. Firstly, the petitioner has not pleaded and relied upon Section 269 UH. It is not stated that full value of consideration was not paid by the Central Government within the stipulated time. Secondly, as per application filed in form No. 37-I the apparent consideration mentioned in column No. 5 was Rs.2.79 crores. The said amount has been paid. Thirdly, even the written submissions filed on 26th September, 2011 no such plea or contention has been raised. Lastly, the above plea has been raised on the basis of the recordings/notings made in the files of the Appropriate Authority, who had entered into correspondence with DDA. DDA had informed that they had received payment of Rs.5,07,150/- as conversion charges from leasehold to freehold from respondent Nos. 3 to 5. DDA had also claimed an amount of more than Rs.1.33 crores provisionally as an unearned increase. We fail to understand why and on what account further payment was required to be made to the petitioner. This paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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