# Sukh Raj Singh v. Addl. Commissioner Judicial Faizabad & Ors

- **Citation:** (2023) 8 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-02
- **Case number:** Writ C No. 3000057 of 2001
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukh-raj-singh-v-addl-commissioner-judicial-faizabad-ors-50681
- **Pages:** 7

## Headnote

(A) Land Law - The U.P. Imposition of
Ceiling of Land Holdings Act, 1960 -
Section 10(2) - Notice to tenure holders
failing
to
submit
a
statement
or
submitting an incomplete or incorrect
statement - 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. (Para-15)

(B) Word of phrases - Acquiescence - tacit
or passive acceptance, Approbate and
Reprobate - blow hot and cold - fast and
loose - doctrine of election - rule of
estoppel - one cannot approbate and
reprobate is inherent in it - doctrine of
estoppel by election is one among the
species of estoppel in pais (or equitable
estoppel) - rule of equity .(Para -15)

(C) Word of phrases - doctrine of election
- no party can accept and reject the same
instrument - 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. (Para -15)

Order of Additional Commissioner (Judicial) -
challenged - dismissed appeal of petitioner -
court declared 9.702 acres of irrigated land as
surplus land - ordered entire surplus land to be
removed from petitioner's village - petitioner
estopped from challenging an order - ground -
cannot be permitted to both approbate and
reprobate - after acquiescence of order - not
challenged by petitioner - grievance of petitioner
- no lands from village Bankati should be
considered surplus - chosen choice should be
respected by prescribed authority. (Para -
2,3,6,15,17)

HELD:-Direction to respondents not to deduct
any land form village Bankati. Surplus if any land
be restored to petitioner. As per his choice land of
the petitioner in other villages may be taken as
surplus. Petitioner can apply to the prescribed
authority within four weeks, and orders will be
issued within two months.(Para-20)

Petition dismissed. (E-7)

List of Cases cited:-
490 INDIAN LAW REPORTS ALLAHABAD SERIES
U.O.I Vs N. Murugesan, (2022) 2 SCC 25

## Text

8 All. Sukh Raj Singh Vs. Addl. Commissioner Judicial Faizabad & Ors.
489
Supreme Court and accordingly it was
impermissible for the Prescribed Authority
and the Appellate Authority to dispute the
said sale-deeds in the present case before it.
In view of the aforesaid, this Court is of the
considered view that considering the fact
that the proceedings were hit by the
principle of res-judicata, as the same lands
were subjected to the proceedings under the
Act of 1960 in the year 1975 and they have
been excluded frm the holdings of the
original tenure holder, the same land cannot
again be subjected to the Act of 1960, and a
different view taken by the Prescribed
Authority.

23. In the light of the above, the writpetitions are allowed. The orders dated
22.06.1993 and 22.06.1994 passed by the
Prescribed Authority and the Appellate
Authority are set aside.
----------
(2023) 8 ILRA 489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 3000057 of 2001

Sukh Raj Singh ...Petitioner
Versus
Addl. Commissioner Judicial Faizabad &
Ors. ...Respondents

Counsel for the Petitioner:
Vinod K. Singh, Ankit Pande, Ashutosh
Singh, S.N. Goswami

Counsel for the Respondents:
C.S.C.

(A) Land Law - The U.P. Imposition of
Ceiling of Land Holdings Act, 1960 -
Section 10(2) - Notice to tenure holders
failing
to
submit
a
statement
or
submitting an incomplete or incorrect
statement - 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. (Para-15)

(B) Word of phrases - Acquiescence - tacit
or passive acceptance, Approbate and
Reprobate - blow hot and cold - fast and
loose - doctrine of election - rule of
estoppel - one cannot approbate and
reprobate is inherent in it - doctrine of
estoppel by election is one among the
species of estoppel in pais (or equitable
estoppel) - rule of equity .(Para -15)

(C) Word of phrases - doctrine of election
- no party can accept and reject the same
instrument - 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. (Para -15)

Order of Additional Commissioner (Judicial) -
challenged - dismissed appeal of petitioner -
court declared 9.702 acres of irrigated land as
surplus land - ordered entire surplus land to be
removed from petitioner's village - petitioner
estopped from challenging an order - ground -
cannot be permitted to both approbate and
reprobate - after acquiescence of order - not
challenged by petitioner - grievance of petitioner
- no lands from village Bankati should be
considered surplus - chosen choice should be
respected by prescribed authority. (Para -
2,3,6,15,17)

HELD:-Direction to respondents not to deduct
any land form village Bankati. Surplus if any land
be restored to petitioner. As per his choice land of
the petitioner in other villages may be taken as
surplus. Petitioner can apply to the prescribed
authority within four weeks, and orders will be
issued within two months.(Para-20)

Petition dismissed. (E-7)

List of Cases cited:-
490 INDIAN LAW REPORTS ALLAHABAD SERIES
U.O.I Vs N. Murugesan, (2022) 2 SCC 25

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Ankit Pande, learned
counsel for petitioner as well as learned
Standing Counsel for respondents.

2. By means of the present writ
petition, the petitioner has challenged the
order dated 09.04.2001 passed by the
Additional
Commissioner
(Judicial)
Faizabad
Division,
Faizabad
thereby
dismissing the appeal preferred by the
petitioner and declaring 9.702 irrigated
land as surplus land.

3.

Brief
facts
necessary
for
adjudication of present case are that a
notice under Section 10(2) of the U.P.
Imposition of Ceiling of Land Holdings
Act, 1960 was issued to the petitioner who
had filed his objection on 22.11.1974
wherein he has stated that a family
settlement had taken place with regard to
ancestral land about 20 years back between
his father and his other brothers. In
pursuance of the said partition, his father
was not alloted any share of land situated at
in Villages Maraila, Ranipur and Pure
Chakpihani and the land in all the four
villages were allotted to his uncles.

4. During the proceedings pending
under Section 10(2) before the prescribed
authority, Sri Dukh Haran Singh one of the
real uncle of the petitioner moved an
application for being impleaded and also
filed written objection before the prescribed
authority. He had also stated that a family
partition had taken place with his three
other real brothers and they have been in
exclusive possession of the respective lands
ever since then. He further stated that a
partition suit has also been filed in respect
of
villages
Ranipur,
Maraila
and
Pureprasad in the revenue court on
20.03.1970 in which a preliminary decree
was passed on 21.08.1971 and a final
decree was also passed sometimes in the
year 1972.

5. He admitted that pursuant to the
said partition, mutation has not been carried
out in the revenue records. It was further
stated that during the said period fire had
broken out in the revenue record room of
the Collectorate, Bahraich and all the
papers were burnt and hence they had filed
another partition suit in the year 1974 and a
final decree of partition has also been
passed on 31.01.1976 and as per the said
partition, lands of village Benipur, district
Gonda and also 20 acres of land of village
Bankati was allotted to Sri Sukhraj Singh
whereas the entire land of village Maraila,
Pura Parasad and Ranipur was allotted to
him and other brother Baijnath Singh and
that no share was given to Sri Sukhraj
Singh in the land of all the three villages.

6.

The
said
application
for
impleadment was allowed by the prescribed
authority by order dated 22.03.1979 and
evidence was also adduced by the tenure
holders including the petitioner as well as
Dukh Haran Singh. By means of order
dated 31.03.1979 the prescribed authority
had dismissed all the objections holding
that the said partition was not genuine
partition but was entered into only for the
purpose of protecting the lands from ceiling
proceedings and further returned a finding
that the said partition had taken place after
the cut off date and consequently would not
be of any assistance to a tenure holder. He
accordingly declared 9.702 acre land in
terms of irrigated land as surplus land of
the tenure holder of the petitioner and
directed that the entire surplus land be
8 All. Sukh Raj Singh Vs. Addl. Commissioner Judicial Faizabad & Ors.
491
taken from the lands of the petitioner from
village Bankati.

7. Aggrieved by the aforesaid order
dated 31.03.1979, the petitioner filed a
Rent Appeal No. 130/1979 and Dukh Haran
Singh filed Rent Appeal No. 123/1979.
Both these appeals were heard and decided
by the District Judge by means of judgment
dated 27.11.1979. The District Judge has
allowed the appeal of Dukh Haran Singh
bearing Rent Appeal No. 123 of 1979 and
partly allowed the appeal of the petitioner
hearing Rent Appeal No. 130 of 1979 and
only allowed his appeal to the extent that
no surplus land Sukharaj Singh shall be
taken from village Bankati as has been
originally
ordered
by
the
prescribed
authority vide its order dated 31.03.1979.

8. Being aggrieved by the order of
District
Judge dated
27.11.1979,
the
petitioner did not file any writ petition
before the High Court. His uncle, Dukh
Haran Singh filed a writ petition being Writ
petition No. 145 of 1980 before this Court.
The said writ petition was allowed by this
court by judgement dated 12.01.1984
quashing the order dated 27.11.1979 and
restored the appeal of Dukh Haran Singh to
its original number and directed the
appellate authority to decide in terms of
order of the court.

9. The appeal of the Sri Dukh Haran
Singh bearing Rent Appeal No. 123 of
1979 was heard by District Judge and it
was allowed by means of order dated
28.11.1984. While allowing the said appeal
the order of prescribed authority dated
31.03.1979 was upheld to the extent only
that 9.702 acres of land in terms of irrigated
land is declared surplus land of the
petitioner and the prescribed authority was
directed to take out surplus land of the
petitioner either from his exclusive land of
village Benipur or out of his exclusive 28
acres land of village Bankati.

10. The petitioner after a lapse of 5
years filed a writ petition before this court
being aggrieved by the fact that the area of
village Benipur is only 20 acres and not 28
acres while the District Judge while
allowing the appeal of the petitioner has
maintained the same surplus area. This
Court while dismissing the writ petition i.e.
Writ Petition No. 2167 of 1985 preferred
by the petitioner given liberty to the
petitioner to approach District Judge only
with regard to operative portion of the
order to consider whether area of the land
of the petitioner at Benipur was 20 acres or
28 acres.

11. In pursuance to the direction of
this Court dated 16.10.1985, the appellate
authority has upheld his previous findings
and held that no interference is required
with the same while dismissing the claim of
the petitioner by means of impugned
judgement dated 09.04.2001.

12. The petitioner has vehemently
urged that the appellate authority while
deciding the appeal No. 123 of 1979 has
accepted the fact that the property was
partitioned and by metes and bounds
specific lands were allotted in favour of all
the brothers and accordingly exempted the
land from operation of Act of 1960. He
submits that once the said findings has been
returned by the District Judge then the
petitioner would also be entitled to the
same.

13. Learned Standing Counsel on the
other hand has opposed the writ petition.
He submits that the issue which has been
canvassed before this Court was also
492 INDIAN LAW REPORTS ALLAHABAD SERIES
considered by the District Judge while
deciding the appeal of the petitioner. He
submits that against the appellate order
dated 27.11.1979 which was common to
appeal No. 123 of 1979 and 130 of 1970
only Dukh Haran Singh being aggrieved
had approached this court by filing writ
petition No. 450/1980. It is only at the
instance of Dukh Haran Singh, this Court
interfered with the appellate order and
remanded the matter to the appellate
authority for consider the same and to
consider
the
aspect
of
partition
as
canvassed by the writ petitioner.

14. The petitioner did not challenge
the order dated 27.11.1979 and accordingly
the order passed in his appeal NO. 123 of
1979 became final and binding upon the
petitioner. Further, the petitioner had an
occasion to come again before this Court
assailing the appellate order passed by the
District Judge by filing writ petition being
Writ Petition No. 2167 of 1985. Even by
approaching this Court after such a long
lapse of time the petitioner did not assail
the findings recorded by the appellate
authority in its judgment dated 27.11.1979
but challenged only the limited findings
with regard to area to be declared surplus in
Benipur. It was open for the petitioner to
assail the findings of the appellate court
dated 27.11.1979 but he was satisfied with
the findings recorded therein and hence the
said judgment became final and binding. In
its order dated 27.11.1979 the only benefit
given to the petitioner was that as per his
choice lands other than Bankati may be
taken as surplus land.

15. In the case in hand, the petitioner
is estopped from challenging an order on
the ground that he cannot be permitted to
both
approbate
and
reprobate
after
acquiescence of the order which has not
been challenged by the petitioner. The
present circumstances of the case attract the
principle of acquiescence and principle of
approbate and reprobate. The concept of
Acquiescence, Approbate and Reprobate
has been aptly explained by the Hon'ble
Supreme Court in the case titled as Union
of India v. N. Murugesan, (2022) 2 SCC
25. The relevant paragraphs are as follows:

"25. Acquiescence would mean a
tacit or passive acceptance. It is implied
and reluctant consent to an act. In other
words, such an action would qualify a
passive assent. Thus, when acquiescence
takes place, it presupposes knowledge
against
a
particular
act.
From
the
knowledge
comes
passive
acceptance,
therefore instead of taking any action
against any alleged refusal to perform the
original
contract,
despite
adequate
knowledge of its terms, and instead being
allowed
to
continue
by
consciously
ignoring it and thereafter proceeding
further, acquiescence does take place. As a
consequence, it reintroduces a new implied
agreement between the parties. Once such
a situation arises, it is not open to the party
that acquiesced itself to insist upon the
compliance of the original terms. Hence,
what is essential, is the conduct of the
parties. We only dealt with the distinction
involving a mere acquiescence.

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
8 All. Sukh Raj Singh Vs. Addl. Commissioner Judicial Faizabad & Ors.
493
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 estoppel
dealing with the conduct of a party.

27. We would like to quote the
following judgments for better appreciation
and understanding of the said principle:

27.2.State of Punjab v. Dhanjit
Singh Sandhu [State of Punjab v. Dhanjit
Singh Sandhu, (2014) 15 SCC 144] : (SCC
pp. 153-54, paras 22-23 & 25-26)

"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. MR. P. Firm

Muar [CIT v. MR. P. Firm Muar,
AIR 1965 SC 1216] .)

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 [Maharashtra SRTC v.
Balwant Regular Motor Service, AIR 1969
SC 329] .) In R.N. Gosain v. Yashpal Dhir
[R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC
683] this Court has observed as under :
(R.N. Gosain case [R.N. Gosain v. Yashpal
Dhir, (1992) 4 SCC 683] , 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 &
Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd. [Rajasthan State
Industrial
Development
&
Investment
Corpn. v. Diamond & Gem Development
Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3
SCC (Civ) 153] , 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, 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.
494 INDIAN LAW REPORTS ALLAHABAD SERIES
[Rajasthan State Industrial Development &
Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd., (2013) 5 SCC
470 : (2013) 3 SCC (Civ) 153] : (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 [Nagubai Ammal v. B.
Shama Rao, 1956 SCR 451 : AIR 1956 SC
593] , CIT v. V. MR. P. Firm Muar [CIT v.
MR. P. Firm Muar, AIR 1965 SC 1216] ,
Ramesh Chandra Sankla v. Vikram Cement
[Ramesh
Chandra
Sankla
v.
Vikram
Cement, (2008) 14 SCC 58 : (2009) 1 SCC
(L&S) 706] , Pradeep Oil Corpn. v. MCD
[Pradeep Oil Corpn. v. MCD, (2011) 5
SCC 270 : (2011) 2 SCC (Civ) 712] ,
Cauvery
Coffee
Traders
v.
Hornor
Resources
(International)
Co.
Ltd.
[Cauvery
Coffee
Traders
v.
Hornor
Resources (International) Co. Ltd., (2011)
10 SCC 420 : (2012) 3 SCC (Civ) 685] and
V.
Chandrasekaran
v.
Administrative
Officer
[V.
Chandrasekaran
v.
Administrative Officer, (2012) 12 SCC 133
: (2013) 2 SCC (Civ) 136 : (2013) 4 SCC
(Cri) 587 : (2013) 3 SCC (L&S) 416] .]

16. Thus, 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, or
conduct, or silence when it is his duty to
speak, from asserting a right which he
would have otherwise had."

16. In pursuance of the remand order
dated 28.11.1984 the matter was heard by
Additional
Commissioner
(Judicial),
Faizabad Mandal, Faizabad who again
examined the matter and all the orders
passed in the said proceedings and held that
the order dated 27.11.1979 has become
final against the petitioner and a surplus of
9.702 acres has been declared to be surplus
to be deducted from the holdings of the
petitioner and hence no interference is
required in the said findings and rejected
the application of the petitioner.

17. The only grievance of the
petitioner is that none of lands from village
Bankati should be taken as surplus and the
choice given by him should be adhered to
and respected by the prescribed authority.

18. Learned Standing Counsel on the
other hand has relied upon the averments
made in the counter affidavit where the order
dated 14.05.1980 passed by the prescribed
authority has been annexed where a detail of
the surplus land has also been shown from
which some land from village Bankati has
also been declared to be surplus.

19. The findings recorded by the
District Judge while dismissing the appeal
of the petitioner by judgment dated
27.11.1979 had categorically held that no
land from village Bankati would be taken
as surplus as per the choice given by the
petitioner.

20. Accordingly, respondents are
directed not to deduct any land form village
8 All. Sri Niwas & Ors. Vs. Upper Ayukt Administration Lucknow & Ors.
495
Bankati and in case some land from village
Bankati has been taken as surplus the same
be restored to the petitioner and as per his
choice land of the petitioner in other
villages may be taken as surplus. In this
regard liberty is given to the petitioner to
move an appropriate application to the
prescribed authority within next four weeks
from today. In case such an application is
made, the prescribed authority shall pass
appropriate orders within two months
thereafter strictly in accordance with the
directions issued by this Court.

21.

Subject
to
the
aforesaid
observations, there is no merits in the writ
petition filed by the petitioner which is
accordingly dismissed.
----------
(2023) 8 ILRA 495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 3000154 of 2003

Sri Niwas & Ors. ...Petitioners
Versus
Upper Ayukt Administration Lucknow &
Ors. ...Respondents

Counsel for the Petitioners:
V.K. Pandey

Counsel for the Respondents:
C.S.C.

(A) Land Law - The U.P. Imposition Ceiling
(Amendment) Act - Section 5 (6) (b) -
transfer by tenure holder, if made after
27.01.1971, its bona fide consideration as
per market value and in good faith,
Section (8) - sale deeds which are covered
by sub-section (8) of Section 5 of the Act
are to be treated as void - sale deeds
executed
after
24.1.1971
are to
be
ignored unless they are saved under
clause (b) of sub-section (6) of Section 5 -
prescribed authority could look into the
validity of the sale deeds not only
executed after 24.1.1971 but also of the
sale deeds executed prior to it.(Para -
6,7,8,9)

Petitioners in possession of disputed parcels
of land - agreement to sale executed on
14.12.1970 - sale deed registered on
10.06.1975
in
favour
of
petitioner
-
appellate authority recorded cause for delay
of one and a half year - sale deed not
executed in a good faith - intent to defeat
provisions
of
Ceiling
Act.
-
Appellate
authority under U.P. Imposition Ceiling
(Amendment)
Act
-
upheld
order
of
prescribed authority - declared disputed
parcels of land to be surplus - discarded
sale deed executed in favour of petitioner -
hence petition. (Para -2,4,5,7)

HELD:-Both authorities neglected to consider
reasons for delay in execution of the sale deed.
No material in the record for both the
authorities to hold that the sale deed lacked
bonafides or was not executed in good faith.
Impugned orders fell into errors of facts and
law. Order passed by appellate authority as well
as by prescribed authority set aside.(Para -
11,13,14)

Petition allowed. (E-7)

List of Cases cited:-

1.
Pramod
Kumar & ors. Vs Additional
Commissioner
(Administration)
Gorakhpur
Division & ors. , 1999 (1) AWC 875

2. Satnam Kaur Vs Commissioner Lucknow
Division, Writ C No. 1000541 of 1992

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri V. K. Pandey, learned
counsel for the petitioner and learned
Standing Counsel for the State.