Jayamma vs The Regional Commissioner and others. Writ Petition 11768/2020 decided on 23 October 2020.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/345337/1/WP11768-20-23-10-2020.pdf
Note: This is a case where the President of Jilla Panchayat in earlier round of Writ Petition opted to take benefit of Rule 3(2) of the new Rules, 2020 under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. The petitioner in the present writ petition raised a challenge to the very same provision under which she took relief at the hands of the Court. The High Court hence relied on the rule of estoppel to reject the Writ Petition. The other question as to whether the 2020 Ordinance amending the provisions of Karnataka Gram Swaraj and Panchayat Raj Act, 1993 curtailing the term of office of the President from 5 years to 30 months is prospective or retrospective is kept open since the High Court rejected the Writ Petition on the preliminary ground of estoppel.
Relevant Paragraphs: 12. It is profitable to notice series of declarations made by the Hon’ble Apex Court on “Rule of estoppel”. In the case of Nagubai Ammal Vs. B. Shama Rao, reported in AIR 1956 SC 593, it was held “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 Vs. Velasari Shankaranarayana Kadambolithaya reported in AIR 1965 SC 241, the classic words of Maitland in Maitland’s Lectures on equity was appreciatingly noticed- “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.” Similarly, the same principle in White and Tudore’s Leading Cases in Equity, was noticed as follows;
“Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intentions of the person from whom he derives one that he should not enjoy both…. That he who accepts benefit under a deed or Will must adopt the whole contents of the instrument.” All the above decisions were authoritatively quoted in National Insurance Co. Ltd. Vs. Mastan and Another (2006) 2 SCC 641. It was held that “the “doctrine of election” is a branch of “rule of estoppel”, in terms whereof a person may be precluded by his action or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to select either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.” Their Lordships were dealing with the right of a person to claim compensation under two separate enactments. It was held that the person entitled to compensation may without prejudice to the provisions of one enactment, claim such compensation under either of those acts but not under both.
13. In the case of City Montessori School Vs. State of Uttar Pradesh and Others (2009) 14 SCC 253, once again the decision in Nagubai Ammal Vs. B.Shama Rao (supra) was quoted to the effect that, “ when on the same facts, a person has right to claim one or 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.” While citing the decision in Union of India Vs. Krishan Lal Arneja (2004) 8 SCC 453, it was held that a party consenting to an order cannot be permitted to resile therefrom while retaining the benefit obtained therefrom.
14. In Shyam Telelink Limited Vs. Union of India (2010) 10 SCC 165, while quoting the maxim “qui approbat non- reprobat” (one who approbates cannot reprobate), it was held that the said maxim is firmly embodied in English common law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic levels provides that a person taking advantage under an instrument which both grants a benefits and imposes a burden cannot take the former without complying with the latter. In the same decision, while noticing the decision in Verschures Creameries Ltd. Vs. Hull & Netherlands Steamship Co. Ltd, according to Halsbury’s Laws of England 4th Edn., Vol.16:
“1508. Examples of the common law principle of election- After taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside.” was quoted and thereafter held that 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 conscious.
15. In State of Punjab and others Vs. Dhanjit Singh Sandhu (2014) 15 SCC 144, it was held as follows: “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. The doctrine of “approbate and reprobate” is only a species of estoppel, it implies only to the conduct of the parties. As in the case of estoppel, it cannot operate against the provisions of statute. It is settled proposition of law that once an order has been passed, it is complied with accepted by other party and he derived the benefit out of it, he cannot challenge it on any ground.”
17. In Ramesh Chandra Sankla and Others vs. Vikram Cement and Others, (2008) 14 SCC 58, it was held that “it is well settled that jurisdiction of the High Courts under Articles 226 and 227 is discretionary and equitable. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which its exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as court of law but also as a court of equity. It is, therefore, within the power and also the duty of the Court to ensure that power of superintendence must “advance the ends of justice and uproot injustice…. Powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account the balancing of interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equity may project. Court of equity must go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon consideration of justice, equity and good conscience.”
Compiled by S.Basavaraj, Advocate, Daksha Legal
Daksha Legal 