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TMI Blog2012 (4) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 2011. On going through the file it is noticed that the Revenue had filed C.M.No.2208/1997 for vacation of stay. In this application, it is stated that the order under Section 269 UD (1) of the Income Tax Act, 1961 was passed on 29th February, 1996 and thereafter Rs.2,37,00,000/- was paid to the sellers, respondent Nos.3 and 4 on 22nd March, 1996. Petitioner, the intending purchaser, had received a payment of Rs.42,00,000/- on 17th March, 1996. The present writ petition was filed on 21st May, 1996, but was returned under office objection and was re-filed on 2nd July, 1996. It appears that in the pleadings i.e. the writ petition and the rejoinder, it is not stated and averred that payment of Rs.2,37,00,000/- was made to the sellers and Rs.42,00,000/- was paid to the petitioner in March, 1996 and the same was accepted. In these circumstances, we have listed the matter for directions. Learned counsel for the parties will address arguments on the said aspects. Relist on 6th February, 2012." 3. The arguments were heard on the said aspects and thereafter judgment was reserved on 27th February, 2012. We may note that on some dates adjournments were given as Mr. Arun Khosla, Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty admeasuring 500 square yards was Rs.2.60 crores. The construction permissible thereon was FAR of 140, whereas the property in question- admeasuring 513 square yards with permissible FAR of 190- was subject matter of agreement to sell dated 19th November, 1995. The Appropriate Authority came to the conclusion that the land rate had to be computed on the basis of the FAR and adjustment of +35.71% was made on account of the said additional FAR. Another adjustment of +5% on account of the park on the back side was also made. The value of land was therefore computed as Rs.3.75 crores. The depreciated value of the structure was worked out at Rs.3,44,416/-. The fair market value of the property was thus held to be more than Rs.3.81 crores. 7. As we perceive, we need not examine various aspects raised by the petitioner on merits in view of what is recorded in our order dated 3rd January, 2012. The present writ petition deserves to be dismissed for reasons, which we have set out and explained below. 8. The present writ petition filed on 21st May, 1996 was returned under office objections and was refilled on 2nd July, 1996. It came up for hearing on 4th July, 1996 and notice was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 5 have received the full apparent consideration from the Central Government. The petitioner did not file any reply to the application for vacation of stay CM No. 2208 or rejoinder to the reply to CM No. 2489/1996. Rejoinder was filed to the counter affidavit. Even in the rejoinder to the counter affidavit, the petitioner has not averred or stated that the petitioner and the respondent Nos. 3 to 5 have received the full sale consideration from the Central Government. 11. Writ jurisdiction is discretionary. It is an equitable jurisdiction meant to do justice to the parties and remedy to injustice suffered by the petitioner at the hands of the Government/State. Concealment of material facts can disentitle a petitioner from seeking relief under a discretionary remedy. The petitioner must come to the Court with clean hands and state truly and correctly the material facts. The present case is clearly one where the petitioner has failed and has not stated the material fact that they, i.e., the petitioner and the respondent Nos. 3 and 4 had received the full apparent sale consideration. The petitioner had paid Rs.42 lacs to the respondent Nos. 3 and 4 for entering into sale transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate Authority to the Vendee and balance will be payable to the vendors and upon such payment the Vendee shall have no right against the Vendors and if for any reason the purchase by the Appropriate Authority is not ordered or not completed or fructified then and in that event this Agreement shall be binding upon the parties." 13. It is the contention of the respondent nos. 1 and 2 that as per the said clause if the property was acquired by the Central Government, the vendee, i.e., the petitioner, can claim no rights against the vendors, i.e., the sellers. It is further stipulated that the earnest money of Rs.42 lacs paid by the petitioner would be directly paid by the Central Government to him. 14. We may note that the petitioner has not alleged or stated that the payment of Rs.42 lacs or Rs.2.37 cores by respondent Nos. 3 to 5 was under protest and without prejudice. During the course of hearing before us, counsel for the petitioner had submitted that the payment received was under protest and without prejudice. He wanted to file some letters in the Court, but on being questioned, admitted that the petitioner did not have any proof of delivery/dispatch of the said letters. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. 37. In Kensington Income Tax Commrs. Viscount Reading, C.J. observed: (KB pp. 495-96) "... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of the matter. xxx 35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 36. In the case on hand, several facts had been suppressed by the appellant Company. Collusive action has been taken with a view to deprive the respondent Bank from realising legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third-party interests in the property mortgaged with the Bank. It had also shifted machinery an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed them were not entitled to withdraw from VRS. In the case of Punjab National Bank v. Virender Kumar Goel (2004) 2 SCC 193 the applicant Bank submitted that some of the optees having accepted the benefits under VRS cannot be permitted to withdraw therefrom. In that matter, several review petitions were filed and in some of those review petitions, it was found that the optees were aware of the credits in their accounts and they had even withdrawn the amounts deposited and had utilized the same and consequently in such cases, this Court did not permit the optees to withdraw from VRS. To the same effect is the order passed by this Court in the case of Bank of India v. Pale Ram Dhania (2004) 9 SCC 36. In the light of the above judgments, we have to consider the facts of the present case." 18. In Shyam Telelink Limited v. Union of India, (2010) 10 SCC 165, it has been held : "22. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots law, is now firmly embodied in English common law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd. (1921) 2 KB 608 ; ...)." 26. The decision of this Court in R.N. Gosain v. Yashpal Dhir (1992) 4 SCC 683 brings in the doctrine of election in support of the very same conclusion in the following words: (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 rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and say it is void for the purpose of securing some other advantage‟." 12. 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 estoppels 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. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra Pal Singh (1998) 6 SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti (1998) 6 SCC 507 and Mumbai International Airport (P) Ltd. v. Golden Chariot Airport (2010) 10 SCC 422.] 20. In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576, the Supreme court made reference to Madan Lal v. State of J&K, (1995) 3 SCC 486, wherein it has been held as under: "5. ....in Madan Lal v. State of J&K and held: "In the light of the aforesaid legal position, it has to be hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, Marripati Nagaraja v. Govt. of A.P. (2007) 11 SCC 522, Dhananjay Malik v. State of Uttaranchal (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines (2009) 5 SCC 515." 22. During the course of hearing before us, learned counsel for the petitioner had submitted that principle of estoppel is not applicable as the said principle has not been invoked by the respondent Nos. 1 and 2 and there is no pleading to the said effect. Learned counsel for the petitioner had relied upon Jado Singh and another versus Bishnunath Lal Kanedia Marwari and Another, AIR 1942 Patna 71, Pappammal versus Alamelu Ammal and Another, AIR 1929 Madras 467, M/s Motilal Padampat Sugar Mills Company Limited ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not file any additional affidavit etc. Similarly, the decision in the case of Mahindra and Mahindra Limited (supra) is distinguishable. The Supreme Court in the said case rejected the plea of acquiescence. It was observed that appeal may not have been preferred but the party concerned had taken recourse to alternative and perhaps more effective remedy. It was observed that the party had not altered their position because of the said plea. In Anjuman Islamia of Bareilly (supra), it was held that no case for estoppel was made in the written statement, no issue was framed and, therefore the said plea should not be permitted to be raised. Decision of the Orissa High Court in the case of Goparanjan Dube (supra) relates to Land Acquisition Act, 1894 and deals with the question whether the compensation amount was accepted with or without protest. The court observed that the plea of limitation raised by the State was uncalled for. The principle of estoppel was not applicable as it was only after the payment was calculated by the Land Acquisition Collector that the parties would know the amount they would be entitled to. Decision of Punjab and Haryana High Court in Karnail Singh (supra) r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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