Calcutta High Court
Balaram Dutta vs The Kolkata Municipal Corporation & Ors on 6 March, 2025
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WPO/254/2018
BALARAM DUTTA
VERSUS
THE KOLKATA MUNICIPAL CORPORATION & ORS.
Present:
The Hon'ble Justice SHAMPA DUTT (PAUL)
For the Petitioner : Mr. Arindam Banerjee, Sr. Adv.
Ms. Arpita Saha,
Ms. Krity Keshri.
For the KMC : Mr. Alak Kumar Ghosh,
Ms. Tanushree Dasgupta.
Hearing concluded on : 06.02.2025
Judgment on : 06.03.2025
Shampa Dutt (Paul), J. :
1. The present writ application has been preferred against the order
dated 17th January 2018 passed by the learned Municipal Building
Tribunal, Kolkata Municipal Corporation in B.T. Appeal No.24 of
2024 and the order dated 10th January 2014 passed by the
respondent No.3 in Demolition Case No.46-D/B-III/2013-14,
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Borough III respect of premises No.B/104/H/1, Narkel Danga North
Road, Kolkata – 700 013.
2. The petitioner’s case is that in a proceeding being Demolition Case
No.46-D/B-III/13-14 under Section 400(1) of the Kolkata Municipal
Corporation Act, 1980 (hereinafter referred to as the ‘said Act’), the
order dated 10th January 2014 passed by the respondent No.3 in
Demolition Case No.46-D/B-III/13-14, the petitioner was, inter alia,
directed to demolish the entire first floor allegedly unauthorisedly
constructed and as shown in précis and D. Sketch Plan No. 46-D/B-
III/13-14 within fifteen date from the date of communication of the
order.
3. An appeal was preferred against the said order to the extent of
demolition of part of the structures forming the subject matter of
the said proceeding was directed therein under Section 400(3) of the
said Act before the Municipal Building Tribunal, Kolkata Municipal
Corporation. The said appeal was registered as B.T. Appeal No.24 of
2014.
4. By an order dated 17th January 2018, the learned Tribunal was
pleased to dismiss the appeal on contest and affirm the order
challenged. Hence, this writ application.
5. Parties have filed their respective Written Notes along with the
judgments relied upon. The petitioner has relied upon the following
judgments:-
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i. Shree Shew Sakti Oil Mills Ltd. Vs Judge, 2nd Industrial
Tribunal & Ors., 1960 SCC OnLine Cal 194.
ii. PS Group Reality Ltd. & Anr. Vs The Kolkata Municipal
Corporation & Ors., 2012 SCC OnLine Cal 3885.
iii. Susama Saha vs The Kolkata Municipal Corporation &
Ors., 2015 SCC OnLine Cal 6198.
6. On the other hand, the Kolkata Municipal Corporation by filing their
Written Notes has relied upon the following judgments:-
i. Md. Ayub & Anr. Vs The Municipal Commissioner, KMC &
Ors., in C.O. 3722 of 2015, dated 02.03.2016, Calcutta
High Court.
ii. Mrs. Sarada Devi vs The Municipal Commissioner, KMC &
Anr., in C.O. 1541 of 2018, dated June 14, 2018, Calcutta
High Court.
7. In the present case, considering the materials on record, the
following is evident:-
i. The petitioner herein was present before the Special Officer
for the hearing without raising any question as to the
jurisdiction of the Special Officer, thus submitting to the
adjudication proceeding which concluded on 10th January,
2015, thus prior to the judgment relied upon (Susama Saha
vs The Kolkata Municipal Corporation & Ors. (Supra))
delivered on December 2, 2015 that is subsequent to the
order of the special officer herein.
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ii. The order dated 10th January, 2015 then merged with the
order in appeal dated 17th January, 2018. The judgment in
Susama Saha vs The Kolkata Municipal Corporation &
Ors. (Supra) dated December 2, 2015 was not relied upon
by the petitioner herein in appeal.
iii. The petitioner admittedly accepted the part of the order
which granted regularization of the unauthorised
construction and also acted upon that part of the order
by paying the requisite fees for regularization.
iv. After having accepted part of the order which was in his
favour, the petitioner chose to challenge the part of the
order which was not in his favour. The KMC has raised the
point that the principle of approbate and reprobate was
attracted in the case and the same was not permissible in
the eye of law in view of the decision reported in 1962 SCR
(1) 358, Law which does not permit a person to both
approbate and reprobate.
v. The KMC has further argued that 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 around
and say it is void for the purpose of securing some other
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advantage. The Learned Tribunal also relied on another case
of the Hon’ble Supreme Court reported in AIR 2013 SC 1241
where the Hon’ble Supreme Court made an observation that
a party cannot be permitted to blow hot and cold, or
approbate and reprobate.
8. The petitioner preferred an appeal against the said order only to
the extent of the order relating to the part of demolition.
9. Admittedly in appeal only the part of the order of the special
officer regarding demolition was challenged. The part as to
regularization was not challenged, thus the appeal filed in
substance did not challenge the jurisdiction and authority of the
special officer (building) to hear and dispose such proceedings.
10. In Union of India vs N Murugesan, in Civil Appeal Nos. 2491-
2492 of 2021, decided on 7 October, 2021, the Supreme Court
held:-
“APPROBATE AND REPROBATE:
26.These phrases are borrowed from the Scott‟s 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 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
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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. We have already
dealt with the provisions of the Contract Act
concerning the conduct of a party, and his
presumption of knowledge while confirming an offer
through his acceptance unconditionally.”
11. In Mumtaz Yarud Dowla Wakf vs M/s Badam Balakrishna Hotel
Pvt. Ltd., in Civil Appeal No. ……… of 2023 (arising out of SLP
(C) No. 997 of 2022), decided on 20 October, 2023, the Supreme
Court held:-
“15. The conduct of a party assumes significance.
If a party is likely to have an undue advantage,
despite the availability of an opportunity to raise a
plea of lack of jurisdiction at an earlier point of
time, it should not be permitted to do so during the
execution proceedings. In other words, a plaintiff shall
not be made to suffer by the passive act of the defendant
in submitting to the jurisdiction. One has to see the
consequence while taking note of the huge pendency of
the cases before various Courts in the country. There is
no gainsaying that but for the adverse decree suffered, a
judgment-debtor would not have ventured to raise such a
plea. It is clearly a case of an afterthought to suit
his convenience. He cannot be allowed to approbate
and reprobate. Though we are conscious about the
earlier precedents dealing with the stage at which such a
plea can be raised, much water has flown under the
bridge in terms of the ground reality. Union of India and
Others v. N. Murugesan and Others, (2022) 2 SCC 25,
“Approbate and reprobate
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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 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. We have already
dealt with the provisions of the Contract Act concerning
the conduct of a party, and his presumption of knowledge
while confirming an offer through his acceptance
unconditionally.
27. We would like to quote the following judgments for
better appreciation and understanding of the said
principle:
27.1.Nagubai Ammal v. B. Shama Rao [Nagubai
Ammal v. B. Shama Rao, 1956 SCR 451 : AIR 1956 SC
593] : (AIR pp. 601-02, para 23) “23. But it is argued by
Sri Krishnaswami Ayyangar that as the proceedings in
OS. No. 92 of 1938-39 are relied on as barring the plea
that the decree and sale in OS. No. 100 of 1919-20 are
not collusive, not on the ground of res judicata or estoppel
but on the principle that a person cannot both approbate
and reprobate. It is immaterial that the present
appellants were not parties thereto, and the decision in
Verschures Creameries Ltd. v. Hull & Netherlands
Steamship Co. Ltd. [(1921) 2 KB 608 (CA)], and in
particular, the observations of Scrutton, LJ., at p. 611
were quoted in support of this position. There, the facts
were that an agent delivered goods to the customer
contrary to the instructions of the principal, who
thereafter filed a suit against the purchaser for price of
goods and obtained a decree.
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Not having obtained satisfaction, the principal next filed a
suit against the agent for damages on the ground of
negligence and breach of duty. It was held that such an
action was barred. The ground of the decision is that
when on the same facts, a person has the right to claim
one of 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.
The principle was thus stated by Bankes, L.J. :
(Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)] ,
KB p. 611) „… Having elected to treat the delivery to him
as an authorised delivery they cannot treat the same act
as a misdelivery. To do so would be to approbate and
reprobate the same act.‟ The observations of Scrutton,
L.J. on which the appellants rely are as follows :
(Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)],
KB pp. 611-12) „… A plaintiff is not permitted to
“approbate and reprobate”. The phrase is apparently
borrowed from the Scotch law, where it is used to express
the principle embodied in our doctrine of election —
namely, that no party can accept and reject the same
instrument : Ker v. Wauchope [(1819) 1 Bligh PC 1 at p.
21 : 4 ER 1 at p. 8] : Douglas-Menzies v. Umphelby [1908
AC 224 at p. 232 (PC)] . The doctrine of election is not
however confined to instruments.
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. That is to approbate and
reprobate the transaction.‟ 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.
The law is thus stated in Halsbury’s Laws of England,
Vol. XIII, p. 464, para 512:
„On the principle that a person may not approbate
and reprobate, a species of estoppel has arisen
which seems to be intermediate between estoppel by
record and estoppel in pais, and may conveniently
be referred to here. Thus a party cannot, after
taking advantage under an order (e.g. payment of
costs), be heard to say that it is invalid and ask to
set it aside, or to set up to the prejudice of persons
9who have relied upon it a case inconsistent with
that upon which it was founded; nor will he be
allowed to go behind an order made in ignorance of
the true facts to the prejudice of third parties who
have acted on it.‟ 27.2.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 [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 [AIR 1969 SC
329]). In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683]
this Court has observed as under : (R.N. Gosain case
[(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. [(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
10
asserting a right which he would have otherwise
had.” 27.3.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 [1956 SCR
451 :
AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [ AIR 1965
SC 1216] , Ramesh Chandra Sankla v. Vikram
Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706] ,
Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2
SCC (Civ) 712] , Cauvery Coffee Traders v. Hornor
Resources (International) Co. Ltd. [(2011) 10 SCC 420 :
(2012) 3 SCC (Civ) 685] and 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.” (emphasis supplied)”
12. It is the principle of law that an order if irregular or passed without
jurisdiction, is to be considered as a whole.
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13. If the powers of the Special Officer and the authority is challenged in
respect of the part of the order which did not favour the petitioner,
the said conduct is against the principles of natural justice and the
petitioner should not be indulged in that respect.
14. Thus, in view of the judgments in Mrs. Sarada Devi vs The
Municipal Commissioner, KMC & Anr. (Supra), Md. Ayub & Anr.
Vs The Municipal Commissioner, KMC & Ors. (Supra), Union of
India vs N Murugesan (Supra) and Mumtaz Yarud Dowla Wakf vs
M/s Badam Balakrishna Hotel Pvt. Ltd (Supra), the writ petition
having no merit stands dismissed.
15. All connected applications, if any, stand disposed of.
16. Interim order, if any, stands vacated.
17. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
[SHAMPA DUTT (PAUL) J.]
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