Appeal No 1948 of 1966
Appeal from the judgment and decree dated March 22 1965 of the Gujarat High Court in First Appeal No 718 of 1960
Purshottam Trikamdas MH Chhatrapati and AK Varma for the appellant
GL Sanghi Urmila Kapur and SP Nayar for the respondent
The Judgment of the Court was delivered by Bachawat J
The appellant was the owner of land bearing survey No 910 situated on the Bhachau Rahapur Road in Kutch District
In November 1949 the Government of Kutch took possession of the land under an arrangement that the Government would give to the appellant in exchange other suitable lands of equal value
On that date Kutch was part of the territory of India and the Land Acquisition Act 1894 was in force there
After taking possession of the land the Government constructed thereon the State Guest House and the Court House
Thereafter the Government was neither willing to return the land nor to give other suitable land in exchange and instead it decided to acquire the land compulsorily
On February 1 1955 the Government issued a notification under sec
6 1  of the Land Acquisition Act declaring that the land was needed for public purposes stating that possession of the land had already been taken over and directing the Collector to take action under sec
The necessary action was duly taken and in due course the Collector made his award on April 22 1957
The appellant objected to the amount of compensation and asked the Collector to make a reference to the Court under sec
The Collector duly made the reference
At the hearing of the reference before the District Judge Kutch the Government conceded that the appellant was entitled to the market value of the land as on February 1 1955
The District Judge awarded compensation accordingly
The Government filed an appeal in the High Court
At the hearing of the appeal the Government contended that in the absence of a notification under sec 4 1  no compensation could be awarded to the appellant
The High Court accepted the contention and observed that the appellant would be at liberty to contend in other proceed 62 ings that the acquisition was bad in the absence of a notification under sec
4 1 
In this view of the matter the High Court allowed the appeal and set aside the order of the District Judge
The present appeal has been filed after obtaining a certificate from the High Court
The main question arising in this appeal is whether the Government can take up inconsistent positions in Court at successive stages of the same litigation to the detriment of its opponent and whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February 1 1955 it could at the appellate stage resile from that position and contend that there was no notification under sec
41 on that date and that consequently its opponent was not entitled to any compensation
The scheme of the Land Acquisition Act is well known
If the Government desires to acquire land it has to issue a preliminary notification under sec
4 1  declaring that the land is needed or is likely to be needed for any public purpose
This notification has to be issued in order to give an opportunity to all persons interested in the land under section 5A 1  to object to the acquisition within 30 days after the issue of the notification
After hearing the objections the Collector has to make a report under sec
5A2
On considering this report the Government may issue a notification under sec
6 1  declaring that the land is needed for a public purpose
In cases covered by see
174 the Government may direct that the provisions of sec
5A shall not apply and if it does so a declaration may be made under sec
6 1  at any time after the publication of the notification under sec
4 1 
When the Collector has made an award under sec
11 he may under see
16 take possession of the land which thereupon vests in the Government
Section 18 requires the Collector to make a reference to Court on the application of any person interested in the land who has not accepted the award
It is the market value of the land at the date of the publication of the notification under sec
4 1  that can be awarded as compensation by the Collector under sec
11 and by the Court under sec
These provisions show that the issue of the notification under sec
41 is a condition precedent to the acquisition of the land
Where the procedure under sec
5A has to
be followed there must necessarily be an interval of time between the issue of the notification under sec
41 and the notification under sec
But where sec
5A does not stand in the way the prior publication of a notification under 4 1  is not a condition precedent to the publication of a notification under sec
6 1 
For this reason this Court held in Somavanti vs State of Punjab1 that where an order was passed 1963 2 SCR 775 821 823 63 under sec
174 dispensing with the procedure Under sec
5A it was lawful for the Government to publish both the notifications on the same date
The procedure under sec
5A being entirely for the benefit of the persons interested in the land they may waive it see Toronto Vol
36 p 444 A statutory right which is granted a privilege may be waived either altogether or in a particular case
 If all persons interested in the land waive the benefit of the procedure under sec
5A the Government may lawfully issue a composite notification under secs
4  1  and 6  1 
In this background let us examine the facts of the present case
The Government having constructed buildings on the land was not in a position to restore it and had no option but to acquire it compulsorily
With a view to make the acquisition the Government published a notification under sec
6 1  on February 1 1955
On finding that there was no separate notification under sec
4 1  the Government had a choice between two courses of conduct
It could say that in the absence of such a notification the acquisition was invalid and that no compensation could be awarded under sec
If it did so it would be compelled to start fresh acquisition proceedings and pay a larger sum by way of compensation
The other course was to treat the notification of February 1 1955 as
a composite one under secs
41 and 61 with the consent of the appellant and to say that the market value of the land on that day could be awarded by way of compensation
The Government elected to choose the latter course
At the hearing of the reference it conceded that the appellant was entitled to the market value of the land on February 1 1955
The appellant agreed to accept compensation on that footing
Having regard to the consent of both parties it could properly be assumed that the procedure of section 5A had1 been waived by the appellant and that the notification of February 1 1955 could be treated as a composite one under sections 4  1  and 6  1 
The District Judge could therefore lawfully award the market value of the land that day
Relying on the concession made by the Government the appellant acted to its detriment
It did not challenge the acquisition and took no steps to recover the land
The result is that the Government has been in adverse possession of the land for more than 12 years since 1949 and has gained an advantage which it could not otherwise obtain
In thesecircumstances the Government cannot be permitted to resile from the election which it deliberately made and to say that the appellant is not entitled to the market value of the land on February 1 1955
A party litigant cannot be permitted to take up inconsistent positions in 1 64 Court to the deteriment of his opponents see Rama Charan Chakrabarty vs Nimai Mondal1 Bigelow on Estoppel 6th ed page 783
He cannot approbate or reprobate see Halsbury s Laws of England 3rd ed vol
15 article 340
The concession cannot now be retracted
The High Court should have disposed of the appeal before it on the footing that the appellant is entitled to the market value of the land on February 1 1955
As the High Court did not hear the appeal on the merits the matter must be remanded to it for final disposal
In the result the appeal is allowed the order of the High Court is set aside and the matter is remanded to the High Court for disposal on the merits
The respondent shall pay to the appellant the costs of the appeal in this Court
RKPS Appeal allowed
1 15 CLJ 58


Summary:
In 1949 the Government took possession of certain land belonging to the appellant under an arrangement whereby the Government was to give to the appellant in exchange other suitable lands of equal value
After the Government had constructed some buildings on the land it decided to acquire the land compulsorily
On February 1 1959 the Government issued a notification under section 61 of the Land Acquisition Act 1894 declaring that the land was needed for public purposes and stating that possession of the land had already been taken
The Collector made an award on April 22 1957 but the appellant objected to the amount of compensation and the Collector on his application made a reference to the Court under section 18
At the hearing of the reference before the District Judge the Government concluded that the appellant was entitled to the market value of the land as on February 1 1955 and the District Judge awarded compensation accordingly
Thereafter the Government filed an appeal in the High Court and contended that in the absence of a notification under section 41 no compensation could be awarded to the appellant
The High Court allowed the appeal and set aside the order of the District Judge
On appeal to this Court HELD Allowing the appeal The Government having constructed buildings on the land was not in a position to restore it and had no option but to acquire it compulsorily
With a view to make the acquisition the Government published a notification under sec
61 on February 1 1955
On finding that there was no separate notification under sec
41 the Government had a choice between two courses
It could say that in the absence of such a notification the acquisition was invalid and that no compensation could be awarded under sec
If it did so it would be compelled to start fresh acquisition proceedings and pay a larger sum by way of compensation
The other course was to treat the notification of February 1 1955 as a composite one under sections 41 and 61 with the consent of the appellant and to say that the market value of the land on that day could be awarded by way of compensation
The Government elected to choose the letter course and the appellant agreed to accept compensation on that footing
Having regard to the consent of both parties it could properly be assumed that the procedure of section 5A had been waived by the appellant and that the notification of February 1 1955 could be treated as a composite one under sections 41 and 61
The District Judge could therefore lawfully award the market value of the land on that day
63 C G Somavanti
vs State of Punjab  821 823 and Toronto Corpr
vs Russell  referred to
61 Furthermore relying on the concession made by the Government the appellant had acted to its detriment in that it did not challenge the acquisition and the Government had come to be in adverse possession of the land for more than 12 years
In these circumstances the Government could not be permitted to resile from the election which it deliberately made and to say that the appellant was not entitled to the market value of the land on February 1 1955
63 G H Rama Charan Chakrabarty vs Nimai Mondal 15 CLJ 58 referred to