TMI Blog2009 (2) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... n passed against it by the learned Civil Judge, Lucknow by a judgment and decree dated 9.11.1970. A first appeal and a second appeal preferred thereagainst were dismissed by orders 4.5.1971 and 13.7.1976. The school, however, sent a requisition before the State of Uttar Pradesh for acquiring the entire 23,000/- sq. ft. of land on or about 22.7.1976. A notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter for the sake of brevity called and referred to as the said Act ) was issued pursuant thereto on or about 7.9.1976 and published in the Official Gazette on 6.10.1979. A declaration in terms of Section 6 of the Act was issued in respect of the entire land measuring 23,000 sq. ft on 6.10.1979. 4. Shri N.K. Bhargawa, predecessor-in-interest of the contesting respondents filed a writ petition challenging the legality and/or validity of the said notifications under Sections 4 and 6 of the Act. A Division Bench of the said Court, by a judgment and order dated 26.5.1998 found the said notifications under Sections 4 and 6 to be unsustainable and quashed the same, inter alia, holding : The learned counsel for the respondent Society submitted that since the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under Section 48 of the Act. There appears to be some dispute as to whether the said notification was issued at the instance of the State of Uttar Pradesh or on the basis of oral observations made by this Court. The proceeding-sheet dated 6.3.2003 reads is as under : Mr. Rai Prakash Gupta, learned counsel started his arguments at 11.30 AM and concluded at 12.40 PM. Thereafter, Mr. Shanti Bhushan, learned senior counsel addressed the Court upto 2.35 PM. Mr. Dushyant Dave, learned senior counsel started his arguments and was on his legs when the Court rose for the day. The matters remained part-heard. List on 21.04.2003 at 2.00 PM as part-heard. Learned counsel appearing for the State of U.P. is directed to make available the entire record of land acquisition on the adjourned date of hearing. Written submissions, if any, be filed on or before 15.04.2003. 7. We may place on record that the contesting respondents herein contend that the matter was adjourned in view of oral observations made by this Court to the effect that the contesting respondent should not have any objection if the High Court s judgment is affirmed to the extent of 6,000 sq. ft. of land . The State of Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) The judgment of this Court does not anywhere indicate that in relation to issuance of the said notification, the appellant had any role to play or had consented thereto or agreed for release of the said land. (3) In view of the fact that the validity of the notification issued under Section 4(1) and declaration under Section 6 of the Act having been upheld by the Supreme Court, the appellant was entitled the relief prayed for in the writ petition, purported to the order of this Court dated 22.2.2005. 11. Mr. S.B. Upadhyay, learned senior counsel appearing on behalf of the State of Uttar Pradesh, on the other hand, would contend that this Court having passed the order in terms of the contention made by all the respondents therein including the appellant herein, no relief can be granted in its favour. 12. Mr. Mukund, learned counsel appearing on behalf of the contesting respondents, urged : (1) A consent order must be read in its entirety and the judgment and order of this Court dated 22.2.2005 so read having regard to the backdrop of events would clearly show that the appellant was the real beneficiary thereof and in that view of the matter, it cannot be permitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a public purpose being not a requisite criterion, other statutory requirements call for strict compliance, being imperative in character. 14. The High Court in its judgment and order dated 26.5.1998, in no uncertain terms, held : The irresistible inference would, therefore, be that no amount of so-called laudable object of the respondent Society in running its affairs could justify the instant acquisition if it was not shown to be covered by the situation and purpose envisaged by Section 40(1)(a) of the Act which as mentioned hereinbefore restricts the acquisition only to the purpose of erection of dwelling houses for the workmen employed by it or for the provision of amenities directly connected therewith; and certainly the expansion of the school building belonging to the respondent society was not covered under the either of these two situations. The contention that the Society was being run on charitable basis is neither supported by any material on record nor has any worthwhile bearing on the statutory scheme as discussed in the proceeding para. In the Constitution of the society produced before the Land Acquisition Collector there is not even a whisper about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the 6,000 sq. ft. of land as possession thereof had not been taken. 18. Submission of the learned counsel appearing on behalf of the appellant, however, is that the denotification in terms of Section 48 could be issued only when Section 4 and 6 were invalid. In law that is so. But then, the State on the same logic could not have been permitted to take recourse thereto unless and until the judgment and order passed by the High Court declaring the notification under Section 4(1) and the declaration under Section 6(1) invalid was set aside. It is in the aforementioned backdrop, the question was mooted to uphold the notification in respect of 17,000 sq. ft. of land upon denotifying 6,000 sq. ft. thereof. The decision must, therefore, have been taken keeping in view the aforementioned objective. 19. Legally, appellant is not a party to the said decision making process but the entire exercise taken by the State of Uttar Pradesh either on its own or on the basis of the observations made by this Court. It could not have been initiated and/or given effect to without consent of the appellants. Even if there was no explicit consent, implicit consent is evident. Even otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding with each other. The State, the landladies, the appellant and the Parents Asociation, were all on one side. The landladies for one reason or the other did not intend to question the legality or validity of the acquisition notification. They had even accepted the amount of compensation deposited. Contesting respondents only, thus, were on the other side. If the High Court s judgment was to be set aside, it was to be set aside in its entirety and not a part of it. However, the contesting respondents could not have insisted that the entire notification should be set aside as their interest in the land was confined to 6,000 sq. ft. only and upon issuance thereof, they ceased to have any locus to question the entire notification. 22. Indisputably, in view of the decision of this Court, the principles of natural justice had to be followed before issuance of the denotification under Section 48. It was so held in Larsen Toubro Ltd. v. State of Gujarat [(1998) 4 SCC 387] in the following terms : 31. Principles of law are, therefore, well settled. A notification in the Official Gazette is required to be issued if the State Government decides to withdraw from the acquisition und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be complied with. It is now a well settled principle of law that it cannot be put in a straight jacket formula. The Court, despite opining that principle of natural justice was required to be followed, may, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned, in fact, did not suffer any prejudice. It is trite that a party may waive his right of hearing by his conduct. It is furthermore well settled that a fact admitted need not be proved. Indisputably, the appellant was a party to the decision. The decision was based on the consent of the respondents which, in the facts and circumstances of this case, must be held to have included the appellants herein also. 24. A judgment rendered by a court of law and in particular a consent order, it is trite, must not only be construed in its entirety but also having regard to the pleadings and conduct of the parties. {See N.K. Rajgarhia v. Mahavir Plantation Ltd. [(2006) 1 SCC 502 paragraph 19]} 25. Judgment on consent in this case was passed only in view of Section 48(1) of the Act and not on any other premise. Appellant is the only beneficiary of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im thereafter to go back on his election and claim the alternative relief. . Referring to some English decisions, it was observed : It is clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. In C. Beepathumma Ors. v. V.S. Kadambolithaya Ors. [(1964) 5 SCR 836], this Court held : In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2. Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakki s 1/4 share now in the possession of the present appellants through Defendant 8. In Ambu Nai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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