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An estimated 1-minute read

The Doctrine of Election : Supreme Court Explains

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The Supreme Court in a recent decision, in Mumbai International Airport Pvt. Ltd. Vs. Golden Chariot Airport, has briefly examined the 'Doctrine of Election' and the common law doctrine of prohibiting 'approbation' and 'reprobation' as enshrined in the latin maxim qui approbat non reprobat (one who approbates cannot reprobate). The relevant extracts from the judgment are reproduced hereinbelow;

53. Now the question is whether the contesting respondent on a complete volte-face of its previous stand can urge its case of irrevocable licence before the Estate Officer and now before this Court?

 

54. The answer has to be firmly in the negative. Is an action at law a game of chess? Can a litigant change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas?

 

55. The common law doctrine prohibiting approbation and reprobation is a facet of the law of estoppel and well established in our jurisprudence also.

 

56. The doctrine of election was discussed by Lord Blackburn in the decision of the House of Lords in Benjamin Scarf vs. Alfred George Jardine [(1881-82) 7 Appeal Cases 345], wherein the learned Lord formulated "...a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act...the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election."

 

57. In Tinkler vs. Hilder (1849) 4 Exch 187, Parke, B., stated that where a party had received a benefit under an Order, it could not claim that it was valid for one purpose and invalid for another. (See page 190)

58. In Clough vs. London and North Western Rail Co. [(1861-73) All ER, Reprint, 646] the Court referred to Comyn's Digest, wherein it has been stated:-

 

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